Sovereign Immunity

international law update Volume 23, April–June 2017
© 2017 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) |
activity exception. We should have achieved that
result, not via Mendaro’s “corresponding benefit”
test, but by recognizing that the IOIA hitched the
scope of international organizations’ immunity to
that of foreign governments under the FSIA. ere
is a time-tested body of law under the FSIA that
delineates its contours—including its commercial
activity exception. e pattern of decisions
applying Mendaro may approximate some of the
results that would have occurred had international
organizations been subject to the FSIA, but
Mendaro begs other important questions that
assimilation of IOIA immunity to the FSIA would
resolve.” [¶ 713]
citation: Jam v. Intern. Finance Corp., 860 F. 3d
703 (Court of Appeals, Dist. of Columbia Circuit
District of Columbia remands case
about disputed property looted during
Holocaust in Hungary; Congress
enacted Holocaust Expropriated
Art Recovery Act of 2016 during the
pendency of the appeal
In response to widespread looting of Jewish
property, the Herzogs attempted to save their art
works from damage and confiscation by hiding
the bulk of them in the cellar of one of the family’s
factories at Budafok. Despite these efforts, the
Hungarian government and their Nazi collaborators
discovered the hiding place and confiscated the
artworks. ey were taken directly to Adolf
Eichmann’s headquarters at the Majestic Hotel
in Budapest for his inspection, where he selected
many of the best pieces of the Herzog Collection
for display near Gestapo headquarters and for
eventual transport to Germany. e remainder was
handed over by the Hungarian government to the
Museum of Fine Arts for safekeeping.
Hungary moved to dismiss, arguing that the
suit was barred by the Foreign Sovereign Immunities
Act (FSIA). e district court denied Hungary’s
motion, concluding that the expropriation
exception applies to the Herzog family’s claims
and that jurisdiction is not inconsistent with
agreements between the United States and
Hungary. Back in the district court, and following
the close of discovery, Hungary renewed its motion
to dismiss. e district court agreed with Hungary
that the freshly developed record failed to show
that the commercial activities. It nonetheless again
concluded that the expropriation exception applies,
and that no treaty forecloses its application. Id. at
163-69. e court therefore denied the motion to
dismiss, except as to two paintings that Hungary
acquired from third parties after the war.
Hungary now appeals, seeking dismissal of the
claims regarding the remaining forty-two pieces. It

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