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Cassirer on Remand: Considering the Laws of Other Interested States

This post is by Carlos Manuel Vázquez, a professor of law at Georgetown Law School. It is cross-posted at Transnational Litigation Blog.

Claude Cassirer brought suit in federal court in California eighteen years ago against the Thyssen Bornemisza Museum of Madrid, Spain, to recover a painting by Camille Pissarro that was stolen from his grandmother by the Nazis during World War II.  After a reversal and remand from the U.S. Supreme Court last summer, the case is now before the Ninth Circuit for decision of the legal question that is likely to be decisive:  which law governs?

The district court and the court of appeals have so far framed the issue as a binary choice: the governing law on the merits is either that of Spain or that of California.   I suggest here that the issue is better framed as a choice between the law of Spain, on the one hand, and the laws of all the other states or countries with connections to the dispute, on the other.  (Disclosure: I submitted expert declarations in support of the plaintiffs on issues of public international law during earlier phases of this case.)

The U.S. Court of Appeals for the Ninth Circuit has affirmed the district court’s holding that, under the law of Spain, the plaintiff loses because the museum acquired title to the painting through adverse possession (otherwise known as acquisitive prescription).  It is equally clear that, under the law of California, the plaintiff would prevail because California does not recognize the acquisition of title to moveable property through adverse possession.  What has so far not featured prominently in the courts’ analyses of the choice-of-law issue is that the plaintiff would also prevail under the laws of all the other jurisdictions that have relevant connections to the dispute.  Under governmental interest analysis, this should be central to the analysis. Read more

Review of: PP Penasthika, Unravelling Choice of Law in International Commercial Contracts: Indonesia as an Illustrative Case Study (The Hague: Eleven Publishers 2022)

Very recently, Indonesian private international law has attracted significant scholarship in the English language.[1] Dr Penasthika’s monograph (‘the monograph’)[2] is one such work that deserves attention for its compelling and comprehensive account of choice of law in international commercial contracts in Indonesia. My review attempts to capture the methodology, summarise the contents, and give a verdict on the quality of this monograph.

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Mbatha v. Cutting: Implications for Litigants of Indian Origin

Guest Post by Chytanya S. Agarwal*

I. Introduction

Rising cross-border migration of people and concomitant increase in lawsuits relating to matrimonial disputes between couples brings to the forefront the issue of conflict of jurisdictional laws (219th Law Commission Report, ¶1.1-¶1.2). Mbatha v. Cutting is one such recent case that grapples with conflict of laws pertaining to divorce and division of matrimonial property when the spouses are domiciled in separate jurisdictions. In this case, the Georgian Court of Appeal dealt with competing claims from a couple who married in New York and had their matrimonial domicile in South Africa. The wife, domiciled in Georgia, USA, argued for the application of the matrimonial property regime of South Africa – their only (though temporary) common matrimonial domicile. In determining the applicable law, the Court upheld the traditional approach, which favours lex situs for real property and lex domicilii for personal property.

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News

Where do Children Reside? Where they are “at Home”

The Supreme Court of Canada has released its reasons for dismissing the appeal (which it did orally on December 9, 2024) in Dunmore v Mehralian, 2025 SCC 20.  The narrow issue was the meaning of “habitual residence” for a child in the statutory context of the Children’s Law Reform Act (Ontario).  The SCC had earlier explained that a hybrid approach to the meaning of habitual residence is to be used under the Hague Convention: Office of the Children’s Lawyer v Balev, 2018 SCC 16.  In the convention, there is no definition of habitual residence.  In contrast, the CLRA does provide elements of a definition of habitual residence (in s 22) though it leaves “resides” undefined.  This generated the issue: under the statute, does the same hybrid approach apply or is the definition different because of the statute?

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AMEDIP’s upcoming webinar: WIPO Expedited Arbitration on 26 June 2025 (in Spanish)

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 26 June 2025 at 14:30 (Mexico City time – CST), 22:30 (CEST time). The topic of the webinar is WIPO expedited arbitration: ADR and ODR in the era of technology disputes, videogames and e-sports and will be presented by Kiyoshi Tsuru and Óscar Suárez (WIPO) (in Spanish).

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Public Review: New UN Economic Committee for Europe White Paper on Digital Product Passports & Critical Raw Materials for Batteries: Legal Conflicts and Principles for Cross-Border Cooperation

Legal fragmentation slows down the scaling up of the Critical Raw Materials-battery value chains to meet the demands of the green transition. Digital Product Passports (DPPs) should serve as an effective digital traceability tool for business compliance, rather than creating a green barrier.

UNECE and UN/CEFACT are proud to release our White Paper for public review, offering a deep dive into:

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