106 Iowa L. Rev. 943 (2021)

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Abstract

A circuit split exists on the issue of whether a plaintiff must exhaust all available domestic remedies as a matter of international comity before bringing action against a foreign entity in the United States under the Foreign Sovereign Immunities Act’s (“FSIA”) expropriation exception. The Seventh Circuit Court of Appeals has taken an approach in which a claimant suing under the expropriation exception must take adequate efforts to exhaust remedies in a foreign sovereign before suing that sovereign in the United States. Meanwhile, the D.C. Circuit Court of Appeals has explicitly rejected the Seventh Circuit’s approach and has instead held that no such exhaustion is necessary. This circuit split is highly relevant to the international art repatriation movement and the question of whether U.S. courts can provide remedies for Holocaust victims. During the Holocaust era, the Nazi regime looted countless artworks from their legal owners, many of which have gone unrecovered. If Holocaust victims or their heirs cannot sue in the United States, they may lose their only fair shot at recovering their heritage. This Note argues that the D.C. Circuit has the superior approach, in which Holocaustera art litigants do not need to exhaust remedies as a matter of international comity before suing in the United States. Supreme Court precedent supports such a conclusion because the FSIA is comprehensive and all sovereign immunity defenses must stand or fall on the text of the Act. Furthermore, international comity concerns can be downplayed during Holocaust art litigation, as the return of art to victims of the Nazis is a movement of international interest. Additionally, European forums often fail to provide Holocaust-era art litigants a fair chance of recovery, and U.S. courts can often be the only fair forum in which claimants can be heard on the merits of their art claims rather than losing over procedural grounds.