On Tuesday, May 10, 2022, the Hamburg Max Planck Institute will host its 22nd monthly virtual workshop Current Research in Private International Law at 17:00-18:30 CEST. Kermit Roosevelt (University of Pennsylvania) will speak, in English, about the topic

“The Third Restatement of Conflict of Laws: Origins and Aspirations“.

During the middle of the twentieth century, American judges and law professors reacted against the territorialist rigidity of the First Restatement of Conflict of Laws, ushering in the chaos of the choice-of-law revolution. The Second Restatement, completed in 1971, won wide acceptance by courts but found less favor with law professors and has not brought order to the field. In 2014, the American Law Institute decided to try again, beginning work on the Third Restatement. What lessons can be learned from the history of American choice of law, and how can those lessons inform the drafting of a new Restatement? Kermit Roosevelt, the Reporter for the Third Restatement, will offer an overview of the current draft that seeks to situate it within the history of American choice of law and suggest the reasons that it takes the form it does.

Just this week, the Supreme Court decided an important conflict of laws question in Cassirer v. Thyssen-Bornemisza Collection Foundation (S. Ct. 2022).

We have discussed this case on this site before, but the facts deserve restating. Paul Cassirer was a German Jew who owned an art gallery who owned Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain . Paul’s heir, Lilly Cassirer, inherited the painting and hung it in her Berlin home. In 1939, she gave the paintings to the Nazis in return for an exit visa. She later came to the United States with her grandson, Claude, the plaintiff in this case.

The Cassirer family initially brought proceedings in the United States Court of Restitution Appeals under the assumption that the painting had been lost or destroyed—but it wasn’t destroyed. The Thyssen-Bornemisza Collection Foundation (TBC)—a public foundation and an agency or instrumentality of the Kingdom of Spain—purchased it in 1993. After TBC refused to return it to the Cassirer’s, Claude filed suit against Spain and TBC in 2005. Spain was voluntarily dismissed as a party in 2011, and after his death, Claude’s heir’s continued the case.

The Courts determined in 2011 that TBC was not immune from suit because the painting had been taken in violation of international law. The case then proceeded to trial on the merits. The plaintiffs argued that California law should govern, while TBC argued that Spanish law should govern. The judge, citing Ninth Circuit precedent, decided that federal common law provided the conflict of laws rule that should be used to decide what law substantively governed the claim, and that under federal common law conflicts principles, Spanish law governed. TBC prevailed at trial, and the judgment was affirmed on appeal. The plaintiffs sought Supreme Court review only on the question whether federal common law should govern the conflicts analysis, or whether the court should instead have applied California’s conflict of laws rules.

Many commentators wrote—and I agree—that the case is pretty straightforward. The FSIA (28 U.S.C. § 1606) provides that in any case where the foreign sovereign defendant is not immune from jurisdiction, “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” So, if TBC had not been an instrumentality of the Spanish state, California conflict of laws rules would have governed (because the case is pending in a federal court in California and does not arise under federal law). Justice Kagan’s unanimous opinion agreed. In light of § 1606, the courts could not apply a rule to the foreign sovereign defendant different from the rule it would have applied to a private defendant. Once a plaintiff overcomes the jurisdictional hurdles of foreign sovereign immunity, the foreign sovereign has to be treated like any other litigant.

As a result of the decision, the judgment will be vacated and the case remanded for further proceedings. The lower courts, applying California’s conflict of laws rules, could again conclude that Spanish law should govern, or it could decide that California law should govern, in which case maybe a new trial will be necessary. Lots a litigation left, in the end.

At its conference of Thursday, 19 May 2022, the Association pour le droit des étranger (ADDE) and its partners (Agentschap Integratie en Inburgering and University of Liege) will address the reform of the civil status in Belgian law and its international issues. The Conference will be held in Brussels in French.

Speakers will address, among others, the reform of the civil status and the civil registry;  actors of the civil registry; rectification, modification and cancellation of civil status documents; receipt of a foreign civil status document; cases where civil status is unclear or uncertain.

See the program and practical information and the registration form.

As previously announced, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH). The conference is intended to support the ongoing work of the HCCH on Jurisdiction. The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH. Attendance at the conference is complimentary for academics, government and international organisation officials, Journal of Private International Law Advisory Board members and students. Registration is required. More information on the conference and the link to register can be found here.