For nearly 80 years, Berlin’s Kunstgewerbemuseum, or the Museum of Decorative Arts (formerly the Schlossmuseum), has displayed a collection of medieval religious artwork known as the “Guelph Treasure.”[1]  The museum describes the art, estimated to be worth over $250 million, as “the highlight, the center, the heart of [its] medieval collection.”[2]  However, in 2014, a group of families challenged the museum’s possession of the Treasure.  They argue that their ancestors, a group of Jewish art dealers who were German citizens, were the rightful owners of the Treasure, and that they sold it under duress—i.e., as a result of Nazi persecution.  After bringing an unsuccessful claim before a German commission against the Stiftung Preußischer Kulturbesitz (the “SPK”), the foundation that oversees the museum, the heirs sued the SPK in federal court in Washington, D.C.  The SPK challenged the U.S. court’s jurisdiction, and eventually sought relief from the U.S. Supreme Court.  In early July, the Supreme Court agreed to hear arguments on whether suits concerning property taken as part of the Holocaust fall within the expropriation exception to the Foreign Sovereign Immunities Act (“FSIA”), and whether a U.S. court may invoke the doctrine of international comity to abstain from exercising jurisdiction.  The decision may have a significant impact on the U.S. legal recourse available for recovering Nazi-looted art, as well as the reach of U.S. courts in addressing issues of genocide in other countries.


In 1929, a group of Jewish art dealers located in Frankfurt, Germany (the “Consortium”) collectively purchased a “unique collection of medieval relics and devotional art” called the “Welfenschatz” or the “Guelph Treasure.”[3]  After purchasing the collection, the Consortium shared the Treasure with the world, displaying it throughout Europe and the United States.[4]  They sold a few dozen pieces to international buyers, but those sales only amounted to around 20% of the value of the entire collection.[5]  The Consortium stored the remainder of the collection—42 pieces, today worth at least $250 million—in Amsterdam.[6]

In 1933, following the Nazis’ rise to power in Germany, the new German government did not spare the Consortium from its reign of terror.  After two years of persecution, and mounting pressure from the notoriously anti-Semitic and “art plunder[ing]” Prime Minister of Prussia, the Consortium sold the Guelph Treasure to the Nazi-controlled State of Prussia for allegedly less than 35% of its actual market value.[7]   After that 1935 sale, all but one of the Consortium members fled the country, and the Prussian Prime Minister shipped the Treasure from Amsterdam to Berlin in order to present it to Adolf Hitler as a “surprise gift.”  After the war, U.S. troops seized the Guelph Treasure and turned it over to the Schlossmuseum, now the Kunstgewerbemuseum, which displays the collection to this day.

Procedural History

In 2014, Alan Philipp, Gerald Stiebel and Jed Leiber, heirs of three of the Consortium members, sought to recover the Guelph Treasure from the SPK.  They initially agreed to submit their claim to an advisory commission known as the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property, which Germany established in 2003 to address claims in accordance with the Washington Conference on Holocaust Era Assets’ Principles on Nazi-Confiscated Art.  However, after considering the parties’ evidence, the Commission issued a non-binding recommendation that the “sale of the Guelph treasure was not a compulsory sale due to persecution,” and that the heirs should not recover the art.

In 2016, Philipp, Stiebel and Leiber (“Plaintiffs”) filed suit against the Federal Republic of Germany and the SPK (“Defendants”) in the United States District Court for the District of Columbia, claiming that the State of Prussia coerced the 1935 sale of the Welfenschatz as a part of Nazi persecution.[8]  Plaintiffs brought claims for, inter alia, replevin, conversion, unjust enrichment and bailment, seeking return of the Welfenschatz “and/or” $250 million.  They argued that the District Court had subject matter jurisdiction over their claims under the expropriation exception to the normal, longstanding rule that a sovereign nation may not be sued by a private party in the courts of another nation.  This exception, and the topic of sovereign immunity generally, is now codified in American law in the FSIA, which bars a plaintiff from proceeding with a claim in a U.S. court against a foreign sovereign unless, among other things, its property was taken without just compensation in violation of international law.[9]

Defendants moved to dismiss Plaintiffs’ claims for several reasons.  First, they argued that they are entitled to sovereign immunity under the FSIA because the taking of the property at issue was purely domestic—i.e., that it was taken by Germany from German nationals—and therefore did not violate international law.  Second, they asserted that the claims were preempted and non-justiciable because the German Advisory Commission had already issued a decision on the Welfenschatz, and international comity—the principle that courts of one nation should respect the decisions of other nations—required U.S. courts to defer to that decision.  Finally, Defendants urged that the doctrine of forum non conveniens favored dismissal because the German courts would be a more convenient forum to hear the claims.

In March 2017, the District Court denied Defendants’ motion to dismiss for all of the heirs’ property-based claims.  The court found that the taking of the Welfenschatz established “a sufficient connection to genocide such that the alleged coerced sale may amount to a taking in violation of international law.”[10]  The District Court also found support for Plaintiffs’ allegation that the Commission’s decision was politically motivated, concluding that foreign policy supported the just and fair resolution of claims to Nazi-confiscated art[11] and that no binding precedent from the D.C. Circuit required the claims to be “exhausted” in Germany.  Finally, the District Court found that the balance of interests weighed in favor of Plaintiffs’ choice of forum, particularly because each of those three heirs was a U.S. citizen.[12]

Defendants appealed the District Court’s FSIA determination as of right, and it certified the exhaustion issue for interlocutory appeal.[13]  In July 2018, the D.C. Circuit Court of Appeals affirmed the District Court’s holdings that (1) the expropriation exception to sovereign immunity provided in the FSIA applied to suits involving property taken from German Jews by the German government as a part of the Holocaust, and (2) the traditional doctrine of comity had no application because it did not fall within the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.”[14]

Proceedings Before the Supreme Court

In September 2019, Defendant SPK sought review by the U.S. Supreme Court.  As it considered whether to grant certiorari, the Court asked the Solicitor General of the United States for his views on the case.  On May 26, 2020, the Solicitor General filed an amicus brief in support of the argument that the United States courts did not have jurisdiction to hear Plaintiffs’ claims.  On July 2, 2020, the Supreme Court granted the SPK’s petition for certiorari.  The Court will decide:  (1) whether the FSIA’s expropriation exception provides jurisdiction over claims “that a foreign sovereign violated international human-rights law when taking property from its own national within its own borders,” and (2) whether the U.S. doctrine of international comity is unavailable “even in cases of considerable historical and political significance to the foreign sovereign, and even where the foreign nation has a domestic framework for addressing the claims.”

In its brief, the SPK argues that, based on the original understanding of the expropriation exception and the legislative history of the FSIA, it is immune under the FSIA because the taking at issue was purely domestic.[15]  It also argues that Plaintiffs’ claims should be dismissed based on international comity, which allows U.S. courts to abstain from exercising jurisdiction over cases of “grave concern” to foreign sovereigns.[16]  In their brief, Plaintiffs argue that, looking to the plain text and the drafting history of the FSIA, the statute provides jurisdiction over claims for Nazi takings during the Holocaust.[17]  Additionally, they argue that the FSIA has already provided the “appropriate comity” in this matter, given that the D.C. Circuit dropped Germany itself as a defendant in the case.[18]  They also argue that the SPK’s comity-based abstention argument rehashes its un-appealed forum non conveniens argument, that comity-based abstention is rare, and that, even if abstention were available, it would not apply to this case because the United States has a stronger interest than Germany in “hosting claims regarding crimes of the Holocaust,” and because “German courts are categorically unavailable for claims of restitution of moveable personal property.”[19]

Seven groups of amici submitted briefs to the Court.  The National Jewish Commission on Law and Public Affairs supported Plaintiffs,[20] while several other amici curiae favored the SPK, including the United States Government,[21] experts in international and foreign relations law,[22] foreign scholars of international law who have participated in matters of state immunity and genocide[23] and the French government-owned national railway that is a defendant in a similar suit in the Seventh Circuit.[24]  Other submissions included a brief from a group of law professors urging the Court to articulate a concise standard for when to apply international comity abstention,[25] and a brief from a group of “Holocaust and Nuremberg Historians” providing a history of Nazi-looted art as it relates to the crime of genocide.[26]


The SPK maintains that the Guelph Treasure was in Amsterdam and out of the reach of the Nazis when the Consortium sold that collection, and that the final sale price was appropriate.  Nicholas M. O’Donnell, the attorney representing Plaintiffs, continues to attack that position, asserting that the sale is the “quintessential crime against international law, regardless of Germany’s Holocaust distortion in defending this case.”  O’Donnell emphasizes the importance of this case for Holocaust victims, noting that it is “an opportunity to rebuke the Department of Justice and State Department, who turned their back on decades of U.S. policy by siding with Germany’s effort to keep Nazi-looted art.”

While on its face this case now principally focuses on procedural issues of jurisdiction, the U.S. Supreme Court’s reading of the FSIA could have a significant substantive impact on international relations, as it may dictate how far U.S. courts reach to address issues of genocide in other countries.


[1] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz, (last visited Nov. 11, 2020).

[2] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times, July 10, 2020,

[3] Philipp v. Federal Republic of Germany, 894 F. 3d 406, 409 (D.C. Cir. 2018) (noting that “Welfenschatz” derives its name from “schatz,” meaning treasure, and “Welf,” referring to the House of Welf, an ancient European dynasty).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Philipp v. Federal Republic of Germany, 248 F.Supp.3d 59, 65 (D.D.C. 2017).

[9] 28 U.S.C § 1605(a)(3).

[10] Id. at 71.

[11] Id. at 80.

[12] Id. at 87.

[13] The District Court also certified the forum non conveniens issue for interlocutory appeal, but Defendants declined to reassert this argument in their appellate papers.

[14] Philipp, 894 F. 3d at 415 (D.C. Cir. 2018). However, the appellate court dropped Germany as a defendant because it did not find a sufficient nexus between Germany and the taking of the Welfenschatz.

[15] Brief of Petitioner at 16, Federal Republic of Germany v. Philipp, No. 19-351 (Sep. 4, 2020).

[16] Id. at 42.

[17] Brief of Respondent at 11–22, Federal Republic of Germany v. Philipp, No. 19-351 (Oct. 22, 2020).

[18] Id. at 38.

[19] Id. at 38–52.

[20] Brief of The National Jewish Commission on Law and Public Affairs (“COLPA”) and Seven National Orthodox Jewish Organizations as Amici Curiae in Support of Respondents, No. 19-351 (Oct. 19, 2020).

[21] Brief of the United States as Amicus Curiae in Support of Petitioners, No. 19-351 (Sep. 11, 2020).

[22] Brief of Davis R. Robinson, Abraham D. Sofaer, David P. Stewart and Edwin Williamson as Amici Curiae in Support of Neither Party, No. 19-351 (Sep. 10, 2020).

[23] Brief of Foreign International Law Scholars and Jurists as Amici Curiae in Support of Neither Party, No. 19-351 (Sep. 10, 2020).

[24] Brief of Société Nationale SNCF SA as Amici Curiae in Support of Neither Party, No. 19-351 (Sep. 11, 2020).

[25] Brief of Professors Samuel Estreicher and Thomas H. Lee as Amicus Curiae in Support of Neither Party, No. 19-351 (Sep. 11, 2020).  In addition to being the Leitner Family Professor of International Law at Fordham University School of Law and an Adjunct Professor of Law at Columbia and New York University Law Schools, Thomas H. Lee is also Of Counsel at Hughes Hubbard & Reed.

[26] Brief of Holocaust and Nuremberg Historians as Amicus Curiae in Support of Neither Party, No. 19-351 (Sep. 11, 2020).