Pissarro in the Courts: Foreign Sovereign Immunity Update 2022

On May 10th, 2022, the Washington Foreign Law Society hosted a webinar on recent cases concerning the Foreign Sovereign Immunity Act. The panel featured Mark B. Feldman (former Deputy Legal Adviser, Department of State, current Georgetown Law), Peter Gutherie (Office of the Legal Adviser, Department of State), Sally Pei (Arnold & Porter), and was moderated by Giuliana Canè (Executive Secretary, IDB Group Administrative Tribunal; former President of WFLS). Additionally, Michael Teodori (President, WFLS) provided introductory and closing remarks.

Summary of the event: In 2022, several cases under the Foreign Sovereign Immunities Act (FSIA) and implicating cultural property stolen by the Nazis during World War II have had significant decisions released. FSIA defines U.S. courts’ jurisdiction against foreign states, when foreign states are immune from lawsuit, how judgment may be executed against the state’s property, and is the sole means by which foreign states may be sued in domestic courts.

During this roundtable, Georgetown Law professor Mark Feldman described the essential facts of the Supreme Court’s recent decision in Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S.), highlighted important aspects of the Supreme Court’s decision, and how the case will proceed moving forward. Sally Pei also briefly described the facts of De Csepel v. Republic of Hungary, 2022 WL 678076 (D.C. Cir. 2022) and whether FSIA's expropriation exception was correctly applied. The distinguished group of experts then shared their reactions to these cases and implications on FSIA cases going forward. The panelists also discussed issues surrounding FSIA such as available defenses (such as comity), whether prior courts have misinterpreted FSIA by applying a “core function” test, and how state courts analyze which jurisdiction's law to apply.

 The Washington Foreign Law Society wishes to thank the panelists for their time and contributions.

Resources discussed during the event: 

-FSIA, https://www.law.cornell.edu/uscode/text/28/part-IV/chapter-97 

-Cassirer v. Thyssen-Bornemisza Collection Foundation, No. 20-1566 (U.S.), https://www.supremecourt.gov/opinions/21pdf/20-1566_l5gm.pdf 

-De Csepel v. Republic of Hungary, 2022 WL 678076 (D.C. Cir. 2022), https://www.cadc.uscourts.gov/internet/opinions.nsf/B1B3B6C98C3A57B8852587FF0055D821/$file/20-7047-1938132.pdf

Berg v. Kingdom of the Netherlands, No. 20-1765 (4th Cir. 2022), https://www.ca4.uscourts.gov/opinions/201765.P.pdf