Cassirer v. Thyssen-Bornemisza Collection (20-1566)
argument 20-1566Cassirer v. Thyssen-Bornemisza Collection
Supreme Court of the United States
1h 4m
6 speakers
8 chapters
transcribed 7 days ago
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What are the three core propositions the petitioner relies on in the Cassirer v. Thyssen‑Bornemisza case?
We will hear argument next in Case 2015-66, Coussere v. Thyssen-Bornemisza. Mr. Boyes, I understand you're participating remotely? I am, Your Honor. You may proceed.
Thank you, Mr. Chief Justice. May it please the Court. I begin with three simple propositions. First, Respondent is a foreign state not entitled to immunity under Section 1605 of the FSIA. Second, Section 1606 of that Act provides that as to any claim for relief, such a foreign state should be liable in the same manner and to the same extent as a private individual under like circumstances. Third, if the respondent were a private museum and every other circumstance were exactly the same, California choice of law rules would apply. It necessarily follows from these three propositions, none of which is disputed, that California choice of law rules must apply to the respondent. Any other rule would permit courts to apply different choice of law rules and thereby different substantive rules to foreign states that would be applied to private parties, resulting in the respondent not being liable in the same manner and to the same extent as a private museum under light circumstances.
As discussed in our brief, even in the absence of such a clear direction from Congress, This court should not interpret the FSIA as intending federal common law lawmaking, and 20 years of experience with four circuits interpreting Section 1606 as written and applying state choice of law rules strongly suggests that respondent speculation about problems that might arise is unfounded. But what is dispositive is that in the FSIA, Congress struck a comprehensive balance as to how claims against foreign states should be adjudicated. Even if possible problems without balance were to exist, it would be for Congress to address them. I'm pleased to respond to any questions the Court may have.
Mr. Boyes, if we think that the District Court and the Court of Appeals did in fact apply Spanish law, would have applied Spanish law in the exact same way to a private person, wouldn't you lose?
If
my
third proposition were wrong, that is, if the respondent being a private museum would have had federal common law applied to it, then I think the court is right. That is, if the FSIA intended that state law be displaced even for private parties, and that that were the structure of the FSIA, that it would be applied to both the museum as well as the private museum. I would agree with that, Your Honor. Thank you.
Well, there are certainly situations where a foreign sovereign, the analogy that you're supposed to be treated like a private citizen absolutely makes no sense. I mean, what if the issue is something to do with how you're managing your army? How are you treated like a private citizen in a situation like that? Whether or not you're properly denied asylum to somebody, how are you treated like a private citizen there? It strikes me that your case pushes that principle pretty far, and I'm not sure it makes that much sense across the board.
Well, Your Honor, questions of how the... state is managing its army or asylum would not come up in an FSIA action. Well,
that seems to me to be avoiding the question a little bit. I'm sure you can imagine better than I can cases that would come up in that context that might not be a situation that could be replicated by a private citizen.
Your Honor, I'm not sure I agree with that because... you have to have commercial activity to start with. All right.
Well, then what if a private citizen expropriated property in a way that a sovereign could but a way a private citizen can't? I mean,
if
the foreign sovereign engaged in that activity, there'd be no private citizen analog. Right.
The private citizen analog here under state law is conversion. And the question is whether the private party or the foreign state is holding property improperly. There is an expropriation issue that was settled below which held that this was expropriation in violation of international law. Once you have a violation then the f s i a uh... kicks in but it only kicks it uh... with respect to commercial activities it doesn't kick in with respect to the army or the asylum or anything else you're only treating the foreign state uh... has been liable in the same manner to the same extent unlike circumstances the foreign state is acting like a private individual i'd be engaged in commercial activity
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Chapters
8 chapters
1
What are the three core propositions the petitioner relies on in the Cassirer v. Thyssen‑Bornemisza case?
0:00–9:10
2
How does the Court interpret Section 1606 of the FSIA regarding foreign states and private parties?
9:10–19:17
3
Why do the Justices question whether state choice‑of‑law rules should apply to a foreign sovereign?
19:17–26:10
4
What is the significance of the Klaxon decision and the Rules of Decision Act in this dispute?
26:10–35:22
5
How do the parties argue about the timing of Section 1606’s effect—before or after the choice‑of‑law analysis?
35:22–41:15
6
What constitutional and due‑process concerns arise from applying a state’s choice‑of‑law rule to a foreign state?
41:15–48:06
7
Why do the advocates warn about inconsistent outcomes across different states and circuits?
48:06–54:53
8
What resolution do the counsel propose for achieving uniform treatment of foreign sovereigns under the FSIA?
54:53–1:04:12