Sovereign Immunity

• Pages: 35-40

35

international law update Volume 23, April–June 2017

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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

2017).

SOVEREIGN IMMUNITY

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