* This document was reproduced and reformatted from the text appearing at the U.S. Supreme Court website (visited October 4, 2004) <http:///www.supremecourtus.govώ

1 Republic of Austria v. Altmann, 317 F.3d 954, 960 (9,h Cir. 2002).

2 Landgraf v. US1 Film Products, Inc., 511 U.S. 244 (1994).

3 Id. at 280.

4 Altmann v. Republic of Austria, 142 F. Supp. 2d 1187, 1200 (CD. Cal. 2001).

5 Other Circuit Courts observed on a similar case-by-case basis whether the application of the FSIA to pre-enactment conduct would interfere with settled immunity expectations. See Hwang Geum Joo v. Japan, 332 F. 3d 679 (D.C. Cir. 2003) (finding that Japan had a settled expectation not to be sued in U.S. courts for acts during WW II); Abrams v. Societe Nationale des Chemins de Fer Francais, 332 F.3d 173 (2d Cir. 2003) (remanding for further determination of whether plaintiffs legitimately could have expected to have their claims adjudicated in U.S. courts prior to the FSIA's enactment); Garb v. Republic of Poland, No. 02-7844 (2d Cir. 2003) (remanding for factual determination of the State Department's policy with respect to Poland's immunity prior to the FSIA's enactment).Other Circuit Courts observed on a similar case-by-case basis whether the application of the FSIA to pre-enactment conduct would interfere with settled immunity expectations. See Hwang Geum Joo v. Japan, 332 F. 3d 679 (D.C. Cir. 2003) (finding that Japan had a settled expectation not to be sued in U.S. courts for acts during WW II); Abrams v. Societe Nationale des Chemins de Fer Francais,332 F.3d 173 (2d Cir. 2003) (remanding for further determination of whether plaintiffs legitimately could have expected to have their claims adjudicated in U.S. courts prior to the FSIA's enactment); Garb v. Republic of Poland, No. 02-7844 (2d Cir. 2003) (remanding for factual determination of the State Department's policy with respect to Poland's immunity prior to the FSIA's enactment).

6 Republic of Austria v. Altmann, supra note 1, at 964 et seq. The Department of State and the Department of Justice filed an Amicus Curiae Brief for the United States in which the Circuit Court's finding is called an unfounded speculation. See Brief for the United States as Amicus Curiae Supporting Petitioners, at 20 et seq.

7 Republic of Austria v. Altmann, No. 03-13, at 17-18 (June 7, 2004)

8 Id. at 18.

9 Justice Kennedy, joined by the Chief Justice and Justice Thomas, criticised in his dissent that Landgraf should have governed. He argued that there is no difference between a private party's expectation and a foreign government's expectation — both deserve protection. In addition, the dissent suggested that the majority should have observed whether the FSIA's application to pre-enactment conduct creates jurisdiction where there was none before. In the latter case, the application of the FSIA would be impermissible under Hughes. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939 (1997). The majority had distinguished Hughes since it concerned a jurisdictional limitation that adhered to a cause of action and thus the limitation was in effect substantive. The FSIA, on the contrary, does not modify any cause of action. See Republic of Austria v. Altman, supra note 7, at fn 15; see also concurring opinion of Justice Scalia, id. at 49-51.

10 Id. at 46-47.

11 The European Convention on State Immunity, May 16,1972, ETS No. 74, reprinted in 11 ILM 470 (1972) is in force for only eight European States. It has to be noted that in March 2004, the United Nations Ad Hoc Committee on Jurisdictional Immunities of States and their Property, which was set up by the General Assembly in 2000, adopted in its report the text of a draft United Nations Convention on Jurisdictional Immunities of States and their Property and recommended the General Assembly the adoption of this draft Convention. This draft Convention is based on the International Law Commission's 1991 Draft Articles on Jurisdictional Immunities of States and their Property.

12 Hazel Fox, the Law of State Immunity 2 (2004).

13 Id. at 259-61.

14 Id. at 261. The fact that other States' immunity laws do not provide for an expropriation exception, however, does not warrant the conclusion that the FSIA's expropriation exception is in violation of international law. For further arguments supporting the expropriation exception's international law conformity see Christoph Schreuer, Staatenimmunitdt in den USA, 15 ecolex 781, 784 (2004).

15 West v. Multibanko Comermex S.A., 807 F.2d 820, 826 (9th Cir. 1987).

16 Associated Press, U.S. attorney files suit against Germany over art works looted by Nazis (June 23, 2004), available at <http://www.highbeam.com/library/search.>

17 See concurring opinion of Justice Breyer, joined by Justice Souter, Republic of Austria v. Altmann, supra note 7, at 67-70.

18 Anderman v. Republic of Austria, 256 F. Supp. 2d 1098 (2003).

19 Exchange of Notes Constituting an Agreement between the Government of the United States of America and the Austrian Federal Government, Jan. 23, 2001, 2001 U.S.T. LEXIS 34, available at<http://www.usembassy.at/en/policy/diplnote.htm.>

20 special mechanism for art restitution was set up by a 1998 Austrian federal law because it was revealed that—several earlier restitution laws notwithstanding—there are still looted art works in the possession of Austrian museums. The 1998 federal law deals with the restitution of art works that had to be “donated” in exchange for export licenses for other art works. The U.S. and Austria have also reached an agreement on the establishment of a Reconciliation Fund concerning slave and forced labor claims. Agreement between the Government of the United States of America and the Austrian Federal Government concerning the Austrian Fund “Reconciliation, Peace and Cooperation,” Oct. 24, 2000, 2000 U.S.T. LEXIS 117, available at <http://www.reconciliationfund.at/;> For further information see Eric Rosand, Confronting the Nazi Past at the End of the 20"1 Century: The Austrian Model, 20 BERKELEY J. INT'LL. 202 (2002). A similar agreement has been reached with Germany. Agreement between the Government of the United States of America and the Government of the Federal Republic of Germany concerning the Foundation, "Remembrance, Responsibility and the Future," Jul. 17, 2000, 2000 U.T.S. LEXIS 93, available at <http://www.usembassy.de/policy/holocaust/index.htm.>

21 Anderman v. Republic of Austria, supra note 18, at 1115.

22 Republic of Austria v. Whiteman, 124 S. Ct. 2835 (June 14, 2004). The Supreme Court also remanded the cases mentioned supra in note 5 for further consideration in light of Altmann.

* This document was reproduced and reformatted from the text appearing at the U.S. Supreme Court website (visited October 4, 2004) <http://www.supremecourtus.gov.>