Dos males, un bien no hacen: el asunto Cassirer ante los tribunales estadounidenses y la inmunidad de jurisdicción de España

Abstract

On August 13, 2010, the United States Ninth Circuit issued its ruling in Cassirer v. Thyssen-Bornemisza Collection Foundation. Claude Cassirer is an American citizen whose Jewish grandmother’s Pissarro painting was allegedly confiscated in 1939 by an agent of the Nazi government in Germany. He filed suit in a federal district court to recover the painting, or damages, from Spain and the Thyssen-Bornemisza Foundation, an instrumentality of Spain, which now claims to own the painting. Spain and the Foundation moved to dismiss, asserting, among other things, sovereign immunity pursuant to the Foreign Sovereign Immunities Act. In this case, the Ninth Circuit analyzed the question whether a Defendant state, in this case Spain, and its instrumentality can claim foreign sovereign immunity where neither Defendant was the expropriator of the property at issue. While the Ninth Circuit ultimately found that it had jurisdiction, this article examines the decision against the background of applicable rules of international law. In addition, this article describes the parallel negotiations that took place between the governments of the United States and Spain, which have only recently been revealed through WikiLeaks. This study provides an insightful comparison of legal disputes dealt with before the courts and political negotiations.