US court could hear case against the City of Amsterdam for Kazimir Malevich works of art at the Stedelijk Museum

The heirs of Kazimir Malevich are claiming 14 works which the Dutch institution sent on tour to New York and Houston


Washington, Dc

On 30 March a federal court in Washington, DC refused to dismiss a claim against the City of Amsterdam for 14 works of art at the Stedelijk Museum. The court said more facts are needed to determine whether the city, which owns the museum, subjected itself to lawsuit in the US by sending the art on loan to the Guggenheim and the Menil Collection.

The 14 works by Russian artist Kazimir Malevich, which have now returned to Amsterdam, visited the Guggenheim Museum in New York and the Menil Collection in Houston in 2003-2004. But Malevich’s 35 living heirs say that the 14 works, and in fact all 84 of the works by Malevich which are now in the possession of the Stedelijk Museum, were illegally expropriated by Amsterdam in the 1950s, from a friend of the artist who was only holding them. The 14 works were immunised from court seizure during the loan to the US under the State Department’s immunity programme, which seeks to encourage cultural exchange by barring court seizures of certain works of art that are loaned to US museums from abroad.

As the heirs could not seize the immunised art, they sued Amsterdam instead. Their complaint cites a “violation of international law” by the alleged expropriation, and asserts that the art was in the US “in connection with a commercial activity”. These combined elements, the heirs say, allow them to sue Amsterdam, a political subdivision of a foreign sovereign State, under one of the exceptions permitting suits against foreign sovereigns allowed by the 1976 US Foreign Sovereign Immunities Act (FSIA).

The March court ruling by US District Judge Rosemary M. Collyer, of the US District Court for the District of Columbia, rejected most of Amsterdam’s arguments that it remains nonetheless immune from suit as a sovereign.

The US supported Amsterdam in the case, arguing that if US claimants could bring foreign sovereigns into court based on art loans that the State Department has immunised, cultural exchanges will be discouraged. But the court said the State Department immunity applied to the art only, not to Amsterdam, which could be sued if the FSIA requirements for suing a foreign government were met. And the court rejected the argument by the US that the immunised art was not present in the US in a “commercial activity”, as the FSIA requires if the loan is to lay ground to the suit. Anyone can lend art, the court said, which makes art loans an unprotected “commercial activity”, rather than a “sovereign” activity (such as, for example, the declaration of war, which only sovereigns can conduct).

The court said two further inquiries remain, however. One question is whether by participating in the museum loan, Amsterdam had had enough “contact” with the US to expose itself to lawsuit under the FSIA; the court will seek facts about Amsterdam’s US contacts surrounding the loan show. The court will also determine whether any Dutch statutes of limitation could bar the lawsuit if the heirs were to sue in The Netherlands. Amsterdam says that before the heirs can sue under the FSIA in the US, they must first exhaust their Dutch legal remedies. But the court said it would not require this, if the heirs cannot sue in The Netherlands.

In 1927, Malevich brought more than 100 of his works to Berlin, where they remained when he later died in the USSR. The collection passed into the custody of his German friend Hugo Häring, who loaned the works to the Stedelijk Museum in 1956. Häring repeatedly said that he did not own the paintings and could not sell them, but the city acquired them anyway, the heirs say. Amsterdam is appealing the court’s ruling.

Originally appeared in The Art Newspaper as 'US court could hear case against Amsterdam and Stedelijk Museum'