Oral Argument: Cassirer v. Thyssen-Bornemisza Collection | Case No. 20-1566 | Date Argued: 1/18/2022 | Date Decided: 4/21/2022

Cassirer v. Thyssen-Bornemisza Collection | Case No. 20-1566 | Date Argued: 1/18/2022 | Date Decided: 4/21/2022

Background: The Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602–1611 ("FSIA"), provides that where a foreign state or an "agency or instrumentality" of a foreign state is not entitled to immunity, a federal court should "apply the law of the forum state, including its choice-of-law rules." Here, the foreign state defendant (an agency or instrumentality of the Kingdom of Spain) seeks to avoid California's choice-of-law rule and instead asks the federal court to apply federal common law.

Question Presented: Whether a federal court hearing state law claims brought under the FSIA must apply the forum state's choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

Holding: In an FSIA suit raising non-federal claims against a foreign state or instrumentality, a court should determine the substantive law by using the same choice-of-law rule applicable in a similar suit against a private party. Here, that means applying the forum State’s choiceof-law rule, not a rule deriving from federal common law. The FSIA provides a baseline principle of foreign sovereign immunity from civil actions unless a statutory exception applies (including the expropriation exception found to apply here). See §§1604–1607. Yet the FSIA was never “intended to affect the substantive law determining the liability of a foreign state or instrumentality” deemed amenable to suit. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 620. To the contrary, Section 1606 of the statute provides: “As to any claim for relief with respect to which a foreign state is not entitled to immunity under [the FSIA], the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” When a foreign state is not immune from suit, it is subject to the same rules of liability (the same substantive law) as a private party. See First Nat. City Bank, at 622, n. 11. Section 1606 dictates the selection of a choice-of-law rule: It must mirror the rule that would apply in a similar suit between private parties. Only the same choice-of-law rule can guarantee use of the same substantive law—and thus guarantee the same liability. Consider two suits seeking recovery of a painting: one suit against a foreign-statecontrolled museum (as here), the other against a private museum. If the choice-of-law rules in the two suits differed, so might the substantive law chosen. And if the substantive law differed, so might the suits’ outcomes. Contrary to Section 1606, the two museums would not be “liable to the same manner and to the same extent.” In this case, Section 1606 requires the use of California’s choice-oflaw rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum, brought as this case was in California and asserting 3 Cite as: 596 U. S. ____ (2022) Syllabus non-federal claims. If the private suit were filed in state court, California’s choice-of-law rule would govern. And if the private suit were filed in federal court, the same would be true, because a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496. If California’s choice-of-law rule applies in the private-museum suit, it must also apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party. Even absent the clarity of Section 1606, the Court would likely reach the same result. Scant justification exists for federal common lawmaking in this context. Judicial creation of federal common law to displace state-created rules must be “necessary to protect uniquely federal interests.” Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U. S. 630, 640. While foreign relations is an interest of that kind, here even the Federal Government disclaims any necessity for a federal choiceof-law rule in FSIA suits raising non-federal claims.

Result: Judgment VACATED and case REMANDED.

Voting Breakdown: 9-0. Justice Kagan delivered the opinion for a unanimous Court.

Link to Opinion: Here.

Oral Advocates:

For Petitioners: David Boies, Armonk, N.Y.; and Masha G. Hansford, Assistant to the Solicitor General, Department of Justice, Washington, D.C. (for United States, as amicus curiae.) For Respondent: Thaddeus J. Stauber, Los Angeles, Cal.