Foley Hoag Obtains Major Victory for the Hellenic Republic Under US Foreign Sovereign Immunities Act

June 10, 2020

In a precedent-setting victory for the Hellenic Republic (Greece), the United States Court of Appeals for the Second Circuit ruled on June 9, 2020 that Greece’s Ministry of Culture and Sports cannot be sued in the United States for attempting to recover Greek cultural heritage property that was about to be auctioned in the U.S. Foley Hoag LLP, which specializes in representing foreign sovereign states in U.S. courts and other tribunals, led the successful appeal team.

The suit was brought by Sotheby’s auction house and individual clients of Sotheby’s to establish ownership of an 8th century B.C. bronze horse sculpture that Sotheby’s prepared to sell at auction in New York. Prior to the auction, Greece’s Ministry of Culture and Sports informed Sotheby’s that the sculpture is an item of Greek antiquity that, according to Greece’s patrimony laws, is the property of the Greek state, appears to have been illegally removed from Greek territory, and should be returned to Greece rather than sold at auction. Sotheby’s and its clients asked a federal district court in New York to declare that those clients, and not the Greek state, are the rightful owners of the sculpture.

The Ministry of Culture and Sports moved to dismiss the case on grounds of foreign sovereign immunity. The district court denied the motion, ruling that the Ministry was not immune from suit under the Foreign Sovereign Immunities Act’s commercial activity exception. The Ministry appealed, and Greece engaged Foley Hoag LLP to lead the appeal.

On appeal, the Second Circuit reversed the district court’s decision. The Second Circuit ruled that the Ministry of Culture and Sports did not engage in commercial activity when it claimed ownership over the sculpture pursuant to Greek patrimony laws. The Court held that such activity is sovereign in nature. Because the commercial activity exception did not apply, the Second Circuit instructed the district court to dismiss the case.

Foley Hoag partner Andrew Schwartz, who argued the appeal orally, commented: “This is an important decision that will enable foreign states to enforce their patrimony laws without fear of being haled into court in the U.S. if their cultural heritage property turns up here. Foreign states other than Greece have enacted laws to protect their cultural heritage, so the decision could have widespread implications.”

Foley Hoag partner Constantinos Salonidis added: “We are very happy to help Greece in its efforts to recover its cultural heritage property and to see the Court of Appeals’ acknowledgement that such activity does not amount to a waiver of its sovereign immunity.”

In addition to Mr. Schwartz and Mr. Salonidis, Greece’s legal team included Janis Brennan and Mark Finsterwald of Foley Hoag and Leila Amineddoleh of Amineddoleh & Associates LLC.