During oral argument on December 7, 2020, Supreme Court Justice Breyer referred extensively to Willenken’s brief and the four factors proposed therein for applying the international comity doctrine. Willenken filed the brief in Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp on behalf of two international law professors, Samuel Estreicher from New York University School of Law, and Thomas Lee from Fordham University School of Law.
In Republic of Hungary v. Simon, former Hungarian nationals sued the nation of Hungary to recover the value of property lost in Hungary during World War II. In Federal Republic of Germany v. Phillip, heirs of Jewish art dealers are seeking to recover an art collection known as the Guelph Treasure, which they claim was subject to a forced sale to the Nazi regime.
At stake in both cases is whether the doctrine of international comity provides a basis, separate from forum non conveniens or sovereign immunity, for a U.S. court to decline to exercise jurisdiction and require claimants to bring suit at least initially in the foreign state. Willenken’s brief defended the principle of international comity as a stand-alone doctrine and recommended a four-factor test to determine its applicability.
The cases were heard together on December 7, 2020. During argument for Republic of Hungary v. Simon, Justice Breyer questioned both petitioner and respondent’s counsel at length about the factors proposed in Willenken’s brief.
For the oral argument transcript in Republic of Hungary v. Simon, click here.
For information on Republic of Hungary v. Simon, click here.
For information on Federal Republic of Germany v. Phillip, click here.
For the Law360 article on this oral argument, click here.