City of Amsterdam may be sued by the US over lawsuit brought by Malevich heirs

The heirs of Kazimir Malevich are seeking the return of 14 paintings from the Stedelijk Museum, claiming they are not entitled to the paintings



A federal court in Washington, DC has ruled that the City of Amsterdam, which owns the Stedelijk Museum, is not immune from a US lawsuit brought by the heirs of the Russian abstract artist Kazimir Malevich, who are seeking to recover 14 of his paintings plus financial compensation. The heirs say that the City wrongfully expropriated the art after Malevich brought it to Berlin for safekeeping in the 1920s.

The heirs allege that in 1927, Malevich took more than 100 of his paintings and other works to Berlin, leaving the art with friends at a time when “Stalinist condemnation of abstract art would have caused its confiscation and destruction.” Malevich died in the USSR in 1935. Later, the heirs say, the Stedelijk’s director, through repeated efforts including a hospital visit, persuaded the German architect Hugo Häring, who was still holding the art, to make a loan of the paintings in 1956. Though “fully cognizant” that Häring was only a custodian and not an owner, the heirs say, the City then “conspired and colluded” with a German lawyer to ­“fabricate ‘conditions’ ” for a transfer of ownership from Häring’s estate in 1958. They add that when the museum first displayed the works, “their ­origin was cloaked in secrecy” rather than announced “with the fanfare that normally accompanies such an event”, and that the City’s “deception and secrecy” surrounding the acquisition continued.

In 2003, while 14 of the Malevich paintings were on loan to the Guggenheim Museum in New York and Menil Collection in Houston, the heirs sued the City of Amsterdam, claiming that the 1950s acquisition was unlawful. In response, the City, a political subdivision of the Netherlands, cited its sovereign immunity as a defence.

Generally, foreign sovereigns are immune from lawsuit in US courts. But this claim turns on one of the rare exceptions to this rule: the “expropriation” exception. Under the exception, a foreign state may be sued, if “rights in property” are at issue, the property was taken in violation of international law, the property is present in the US, and the presence is connected with a commercial activity carried on in the US by the foreign state.

In 2005, the US District Court for the District of Columbia ruled that the first three requirements were met. But to determine whether the City of Amsterdam had carried on a commercial activity “in” the US, the court required information as to whether the City had had “substantial” contact with the US. On 27 June the court ruled that it did, meaning that the case may proceed.

Based on a declaration from Stedelijk chief paintings curator Geurt Imanse, the court cited the City’s receipt of nearly E25,000 ($34,000) from the US museums borrowing the Malevich works, including transparency charges, shipping and crating costs, and a $300 administrative charge per painting from each museum, which the heirs called “exorbitant”. The City sent its own employees, who collectively spent 34 days in the US, to assist with the display of the works. A “major portion” of the loan contract was performed in the US with the “ready assistance” and participation of Stedelijk employees. This “strongly militates in favour of finding substantial contact”, the court said.

While the case may appear to raise concerns for art loans to the US, the ruling is limited to cases of a lawsuit against a museum which is a foreign sovereign, and where the claim concerns property rights taken “in violation of international law”.

The court rejected the City’s arguments that the heirs had to sue in the Netherlands before suing in the US, and its request to dismiss the claim at this point in the lawsuit as too late.

Finally, the City argued that the Stedelijk’s acquisition of the Malevich works was an “act of state”, which US courts may not question. But the court said that the acquisition was “not the type of sovereign act” that is shielded from US court scrutiny, because “any private person,” and not solely a sovereign government, could have bought the art.

The City has appealed the ruling to the federal appeals court, which is expected to set its schedule for the case this autumn.

The heirs are represented by Lawrence W. Kaye and Howard Spiegler of Herrick, Feinstein LLP, New York, and Thomas R. Kline, Andrews & Kurth LLP, Washington, DC. The City of Amsterdam is represented by Christopher M. Curran and others of White & Case LLP, Washington, DC.

Originally appeared in The Art Newspaper as 'City of Amsterdam can be sued in US'