Federal Republic of Germany v. Philipp
Issues
Does the Foreign Sovereign Immunities Act allow United States courts to assert jurisdiction over claims that a foreign country took the property of its own citizens “in violation of international law” and, if so, is international comity available as a defense to that jurisdiction?
This case asks the Supreme Court to determine whether foreign sovereign immunity and international comity prevent United States courts from asserting jurisdiction over a claim that a foreign nation unlawfully took the property of its own citizens during the Holocaust. The expropriation exception in the Foreign Sovereign Immunities Act (“FSIA”) grants the United States jurisdiction when property was “taken in violation of international law.” Petitioner Germany argues that the exception applies only to property taken in violation of the international law of expropriation and, even if jurisdiction exists, the Court should still dismiss the case based on international comity so it can be resolved in Germany. Respondents Alan Philipp and other heirs of German Jews who sold art to Nazis counter that any violation of international law, including genocide, is sufficient to grant jurisdiction under the FSIA, and the FSIA has already extended the required comity to Germany. The outcome of this case will determine whether United States courts can abstain from exercising jurisdiction over claims against foreign sovereigns and thus will affect American international relations and access to justice in United States courts.
Questions as Framed for the Court by the Parties
(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.
Around 1929, three art dealer firms, J. & S. Goldschmidt, I. Rosenbaum, and Z.M. Hackenbroch, formed a Consortium (the “Consortium”) in Frankfurt, Germany. Philipp v. Fed. Republic of Germany, (D.D.C. 2017) at 64. The owners were German Jews and the ancestors or predecessors-in-interest of Respondents Alan Philipp, Gerald G. Stiebel, and Jed R. Leiber.
Written by
Edited by
The authors would like to thank Professor Maggie Gardner for her guidance and insights into this case.
Additional Resources
- Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, New York Times (July 10, 2020).
- Jess Bravin, Supreme Court to Decide Federal Court’s Authority Over Claims from Overseas Atrocities, The Wall Street Journal (July 2, 2020).
- Nathan Lewin, German Jews ‘Sold’ Silver to the Nazis. Why Does the U.S. Want Germany to Keep It?, The Washington Post (June 19, 2020).