In recent years, federal and state courts in California have become an increasingly common venue for bringing restitution claims concerning Holocaust-related art losses. Since the highly publicized title dispute over some of the world’s finest Klimt paintings – brought by California resident Maria Altmann, against the Republic of Austria – several additional much talked-about cases on Nazi-era looted art have been before California courts. In light of this, New York’s status as the prominent forum with respect to art litigation has become somewhat less absolute over the past decade. California’s ascendance as a forum for Nazi-era art litigation is not surprising, considering its world-class museums, citizens of considerable means, exquisite collections, and dynamic art market.
One of the most fascinating Nazi-era restitution lawsuits currently before the federal courts in California is von Saher v. Norton Simon Museum of Art. The dispute relates to an action taken by an American heir to a famed Dutch art dealer. Von Saher seeks the recovery of a sixteenth-century diptych by Lucas Cranach, one of the prime attractions of the Norton Simon Museum in Pasadena. Stemming from some of the darkest days of mankind, Nazi-era restitution cases are certainly compelling both from an art-history and a human point of view. They are the manifestation of the persistent societal desire to come to terms with the enduring injustices of the Holocaust. As World War II (WWII) was inspired by the urge for cultural domination, including control over cultural heritage each surviving work of art looted during that time remains an eternal witness to humanity’s equal potential for wondrous brilliance and utter depravity. In addition, however, Nazi-era art litigation is often very interesting from a legal point of view. Like other restitution lawsuits, von Saher confronts the court with challenging legal questions, principally because of both the enduring nature of art objects, and their worldwide circulation.
Unlike consumer goods that get used up and disappear over time, art objects are timeless, passed on from generation to generation. Unfortunately, however, problems affecting the object, such as authenticity issues and title problems, are passed on together with the artwork. For instance, decades-old forgeries continue to deceive the market. Similarly, looting that happened during WWII, more than sixty years ago, continues to affect the legal status of many works of art. Art objects thus challenge the law’s relation to time, as established with regard to other types of personal property. It is not a coincidence that in most jurisdictions, case law concerning art objects features prominently in jurisprudence regarding the limitation of claims. The von Saher case constitutes no exception, as its final outcome will be indicative of the attitude of the California courts, not only towards the problem of limitation of claims regarding Nazi-era looted art, but also with respect to other types of stolen cultural property
Involving not just a single act of misappropriation by Göring during the occupation of the Netherlands, but arguably a second misappropriation by the Bolsheviks in early 1920s Russia, von Saher is peppered with issues of public and private international law. Again, this is not uncommon for disputes regarding stolen art, given the truly international nature of collectorship and the art trade. International litigation is, however, complicated by its own rules regarding forum and applicable law. One of the most interesting, yet obscure, legal theories impeding international litigation regarding misappropriated personal property is the act of state doctrine. Implicating several decisions of foreign governments, von Saher is the perfect opportunity for an analysis of the act of state doctrine in litigation regarding works of art looted during the Nazi era.
Considering these two characteristics of art, being both timeless and internationally traded, and the resulting restitution lawsuits, this article has a twofold purpose. Firstly, this article will analyze the effectiveness of the statute of limitations defense in stolen art litigation, by questioning the approach recently taken in California and comparing it to those of other jurisdictions. The comparison will not only focus on other U.S. jurisdictions, but also on Continental European civil property law, specifically the Dutch approach, given the underlying facts of von Saher. Secondly, this article will analyze the significance of the act of state doctrine as a hurdle for litigation regarding misappropriated artwork. This article points out how the act of state defense can even be relevant in a restitution dispute between a U.S. citizen and a U.S. museum regarding property situated in the United States.