Cuba en el caso “Austria vs. María Altmann”, US SUPREME COURT (Devolución de obras de arte)
SUPREME COURT: REPUBLIC OF AUSTRIA v. MARIA V. ALTMANN
(Del argumento de E. RANDOL SCHOENBERG, agodado de MARIA V. ALTMANN, sobrina de Adele Bloch-Bauer, retratada por Klimt en el cuadro conocido como “Woman in Gold”)
QUESTION: Could — could I ask about the act of state doctrine? I mean, even — why isn’t that in play here? I mean, even if giving — holding Austria here would not be acting retroactively insofar as the exercise of jurisdiction is concerned, why wouldn’t holding Austria liable for an act of state which previously would not be a basis for — for challenge in this country, why wouldn’t that be acting retroactively?
MR. SCHOENBERG: Well, we haven’t addressed the act of state because it hasn’t been raised and it was an argument that was dropped. I — I can answer the question though. The act of state doctrine, as I understand it, is designed to prevent courts from entering into situations where there is no settled basis for deciding the case. In other words, in the Cuban cases where there’s a regime that has a completely different property system than ours, it would be unwise for the courts to venture into this political dispute over whether communism or capitalism is the appropriate way to adjudicate these cases. In our case, we have a treaty; article 26 of the Austrian State Treaty says Austria must return property taken from Jewish families during the Nazi era. So there’s no dispute between the two countries as to whether or what type of law would apply in this case. And under Sabbatino, it’s very much qualified by the absence of a treaty governing the rule of decision. So I — I don’t think this case could ever pose an act of state problem. Other cases do though. That – and that’s — that’s really the point. These cases against Mexico, against Japan, against Poland could potentially pose serious act of state problems. This particular case doesn’t. We’d be happy to litigate it. (…)
QUESTION: No, but he — isn’t the — the concern about the applicability of that case to this one is precisely the reason you said. It was — it was a suit between sovereigns and we’re talking here about thesovereign immunity defense in a suit by an individual, and it’s rather a stretch to take that as — as the basis for your law in this case.
MR. SCHOENBERG: Well, I would — I would think that the act of state doctrine, which is what we were talking about, would — would be implicated even more strongly in a — in a suit involving multiple sovereigns than it would with regard to just an individual against a sovereign. And I — I — the Government makes the position I think for the first time today that the expropriation clause sort of appeared from nowhere, but I don’t think that’s the case. The first section of 1605(a) (3) very clearly is the Santissima Trinidad case. That’s the property is inside the United States in connection with the commercial activity. The second clause I believe arises out of the Cuban expropriation cases and the Government’s experience in those cases, and it was the intention of the Government in 1976 when the executive branch proposed this law and when the Congress enacted it to allow our courts to adjudicate6 these types of claims.
-RELACIONADO: Sobre el filme Woman in Gold (Simon Curtis, 2015)