the next case on for argument is barnett vs ministry of culture of sports it please the court andrew schwartz for the ministry of culture and sports of the hellenic republic of greece the district court held that greece sacrificed its sovereign immunity by seeking to recover cultural heritage property that greece claims was stolen from it and exported illegally no court has previously held that a foreign sovereign can be studion ited states under the fs ira for taking action to mean and there's a lot of discussion in the briefs about what is the act for purposes of the foreign so i mean it is an act that is the predicate for stiction and everybody seems to focus on this letter right but as i read the complaint that was filed against greece the parties commercial activity exception to determine whether it's applicable here we have to distinguish between the act and there's really no dispute about what's the act in this case the letter is the act and then here's where there's an additional element which is  view the act has to be in connection with commercial activity quote elsewhere elsewhere in this context is greece so in order for there to be jurisdiction here under the commercial activity exception statue and but back in greece and the ministry of culture gets its way which i'm not saying it should but i mean just in the statute would be repatriated to greece right so we're injecting something back in greece and greece's making a claim to but that that doesn't make the activity in connection with with the letter was sent commercial activity because what greece was doing here was in forcing reflect what alternatives they might have certainly that's the most obvious choice yes because the question here is is their united states jurisdiction under the f s i for this declaratory judgment action that the barnett some sotheby's brought and the answer is no because the only way you can establish subject matter jurisdiction or for that matter personal jurisdiction over a foreign sovereign government in our country is under the fs and you have to satisfy a specific statutory exception the only one that's invoked here and that could plausibly be invoked is the commercial activity exception every time this comes up and it comes up frequently not necessarily in reference patrimony laws i puzzle over the supreme court's jurisprudence here because it makes me distinguish between the act and the purpose but characterizing what is act and what is purpose is by no means obvious so for example in this case you say that greece is in forcing the patrimony law but what the patrimony law does is not simply to prohibit exports for example it also creates ownership right so the way the way greece is in forcing its patrimony law or attempting to enforce its patrimony law by sending the letter is by asserting a claim of ownership right i mean that's that's what makes this work is that the patrimony law says greece owns it well fair enough i don't i'm not suggesting there's anything wrong with that as a matter of law that greece can determine who owns stuff that's in the ground in greece fine the government of greece claims it owns this under that provision but when it comes to the united states what it's saying to soth own it they don't own it and anyone could make that claim and it's a kind of commercial claim it's a claim that we own it we might have owned it because somebody stole it from us we might own it because of some dispute over a will it is no different in that respect than what happened in the whale case in which the philippines exercising a statutory mandate pursued misappropriated public assets that the had looted and in that case the th circuit said that's a uniquely sovereign activity then we have a lot of cases where governments expropriate property right and that's held to be a pretty solidly sovereign activity because when quintessentially sovereign quintessentially sovereign right now isn't the patrimony law essentially that isn't greece saying all of these artifacts whether they mean now belong to whoever they it's universal in terms of if the artifact dates back to a certain period as this one doesn't say then and then it doesn't matter when this left greece that's correct doesn't it doesn't say i made a very helpful contribution in their brief in this appeal putting that in context and it's not the st time this court has encountered a law like this this was at issue in the schultz case a criminal case in which judge mescal wrote a very lengthy opinion respecting the patrimony law of egypt in that case but to bring this back to the is what's at the core of this appeal the question is whether these plaintiffs could bring a declar judgment action and you know there's a separate question about whether that's a whether this is a claim in persona which i hope to get to momentarily but the question is whether these plaintiffs could bring this action the only pathway to do that is under the commercial activity exception they have to show that there was an act in connection with commercial activity and i sympathize judge lynch with your comments about struggling with the definition of commercial you won't be the st court of appeals to have to do that the supreme court has done it that is judge souter two and repeated cases that's why i have this problem and it's very difficult to distinguish when you have an act that partakes can be characterize differently in part depending on what you see the purpose as well it's hard to distinguish that was one way to do it well we've sent that we have to identify the act of the foreign sovereign state that serves the big as for the plaintiff's claims right that's true the pla issue is reese's assertion that this is the property of the state and they're competing claim that it's their private property right here here's the most important factor in the cases and i know my time is short if we're going by the clock you have to look at the power that the foreign state is exercising that is the touchstone that is what cuts through all the definitional confusion in the case law that is what cuts through the characterization issues that are frequently because no one else no private party can control export licenses and then we have the sanchez case from the th circuit in which nicaragua's central bank in managing the nation's foreign exchange another intrinsically public activity issued a check on anybody can issue a check and then the government later stopped payment on the check ok you could look at that in the vacuum and say well private parties issue checks and stop payment well that's true but they don't do it in the context of exercising sovereign sovereign functions sovereign private device as regulators of the market there's the case law says as a pros as opposed to private players within the market you have to look at the context but you critically have to look at the power what was the nature of the power here greece was exercising much money is going to change hands to let this go back to greece or how much money is going to change hands to let it stay in the united states that's what happens if we decide this case and federal grants right if the case is dismissed the dynamic changes i can't predict the future certainly that's one scenario that could unfold whereas if it stays if the plaintiffs prevail  greek item as we talk about it culturally may have actually had its origins on the other side of the ionian sea in what is now turkey right because in geometric art comes from all over the greek world of that era and not all of that greek world is what is now the republic of greece true the i don't pretend to be an expert on the that's what the they gave would be about right but she would also go to the jurisdiction because if we're talking about a sovereign act and you're spot on we are there's no basis for federal court litigation here under the fs i that's precisely the point terms of the remedy is i mean i notice that the letter that sent to so the bees was copied to the embassy of greece and states has there been any is there we don't have anything in the record of any kind of separate diplomatic channel or a think reese is doing there's not another thing ever happened in the recovery efforts of the recovery of historical artifacts and there's a diplomatic channel nothing in the record to suggest any diplomatic activity and the record reflects that there's a complaint there's a motion to dismiss there's a decision that's all that's in front of us jumping over t  as far as i'm yes or no answer as far as i'm aware no ok i'm i'm appellate counsel i wasn't involved in district court proceedings but as far as i'm aware not just the only worthwhile short answer thank you cultural patrimony law and its authority to adopt it that's not the case and i think it's important to explain how these cultural patrimony laws work they don't declare ownership on the part of the greek state or whatever state laws in question over all cultural property were ever located under any circumstances they declare ownership of cultural property that's still in the ground hasn't been reduced to private possession yet going forward date of the law and there are no facts we believe either increases letter or that they've ever put forward they say they've been investigating this for months that would establish those facts and absent that they don't have an ownership claim and that's what the lawsuit seeks to accomplish actually law for granted and say this statue was not found in greece or in rivers and lakes and whatever else it's in the terms of it it was in fact already in private possession of dispute like judge lynch was saying about well it was found over the line it's not clear that that was great territory and there's a question of the reach of greek law to declare that object i mean no no again actually that's not there would implicate the validity of the law good of the regional all right not evaluating like you know given the territorial authority of greece could have declared this object part of the greek state those kinds of issues could come up in this kind of a litigation because those aren't put at issue in the complaint this is an ownership claim and yes the same way for a private person claimed it was stolen from their health and the evidence showed it was it was taken from somebody somebody else's house with the consent of the owner they wouldn't have a legitimate ownership claim that's how i see the significance of the possibility that this could have been found on the other side of the ionian sea to what mr schwartz suggests is the st of course the district courts st and that is the reason that was nowhere at all because the fundamental question of the case law consigner then brings its clarity judgment action to settle the ownership it's issue that's the exact fact pattern we have here and that is commercial activity under the statute and to address your question how you get to my other question i want to ask one just about what you just said you're saying the sending of the letter was commercial activity and that resonates with me to some degree but this for whatever reason was postulated not under commercial activity in the united states but as activity in the united states in furtherance of commercial activity elsewhere so what is the commercial activity that took place in greece that this activity in the united states relates to running museums or something so the act your honor is the sending of the letter under the statute the commercial activity elsewhere is greece's assertion of its ownership purported ownership of this property which also happened elsewhere elsewhere just means under the statute outside the united states prying one is about commercial activity in the united states two dollars and three dollars or elsewhere meaning outside the united states it doesn't have to be separate from the act in question reason why this wasn't considered commercial activity in the united states by virtue of simply sending a claim of ownership to southerlies well there's a substantial contacts requirement under the statute for prying one so but this this this absolutely fits under under prime three as well and  about you commit a crime against people like and that was carry a newspaper or whatever and it interrupted in the same way you still have the same kind of a controversy it would be a different scenario you'd have to look at it separately but this clearly  know and i don't like these other cases where governments expropriate property and we think that that's a sovereign function so why isn't it that why are we talking about a case where a state has a sovereign declared property to be its own and it's in forcing that law we are not challenging the law in the complaint or you know claiming that it is invalid but this gets to the question the judge lynch mentioned when my adversary was speaking and distinguishing between the nature and the purpose  of the act and the case liason in it and it is on its face a bit of a puzzlement but the statute and the case law provide a very clear answer extraordinarily clear and i answer yes only a foreign state can make an ownership claim to allegedly stolen property pursuant to a patrimony law that's true but the statue in the case will say that's not the question the question is whether only a sovereign state can make an ownership claim to allegedly stolen property period how do we know that look at the wealth over case that case involves argentina's issuance of public public debt pursuant to a government program to protect its currency or reserves and then its failure to retire that debt upon maturity pursu of the act not on the nature that was the purpose of issued bonds and in fact breaching the contract but also there was seeking relief for that breach of contract whereas your lawsuit actually goes beyond the letter and goes back to the claim of ownership i think as you just bill this law is going to do to keep the ownership correct it's an ownership and that's something that private parties are the sovereign function that in that case but i take your point it's not it's not you're saying to me that you're not challenging the authority to adopt the patrimony law and you're taking it are invoking the patrimony law saying that that's it's pursuant to that law that their ownership claim derives from but what i am saying is that the statute in the case law stated that is irrelevant and that's exactly the word that you used judge lynch in the mor r case that you decided when you were on the on the district court it's not in the briefs it's something we've got ted in preparation for argument but that was a case where germany private parties had issued certain bonds prior to world war two germany pursuant to a treaty assumed the obligations of those buns after world war two germany said we did this pursuant to a treaty it's a sovereign act judge lynch said absolutely correctly applying well to over whether a government acts pursuant to the an accident of a law or regulation ratification of a treaty or some other measure that is only available to sovereigns such a consideration is irrelevant to the determination of whether the activity w you it's not like i'm confident of any of these results because this is a very confusing law and that was the statute gives us a very clear formula which is it about the purpose or the act  but does it matter that greece is collecting the artifacts to preserve cultural heritage as opposed to anything related to commerce now that's the purpose of that's the purpose that's and that doesn't count under the statute under just cases that fine government has declared that certain property belongs to them but actually we just that you think about it as a claim of ownership whether it's pursuant to an expropriation statute or an expropriation case i think your honor is very different if greece ex propriated something within its territory which would have to have the power to do there is a separate problem of the f s a it's not a pleasurable here but that might be a sovereign act they actually go out and grab it but that's not what they did here they acted in the place to decide the merits although i think you have to assume the allegations of the complaint to be true but what all of this highlights is that this is a classic ownership dispute where the state is wearing its hat as a property owner not as a regulator this isn't about  no no one but a greek can own this stuff and a greek citizen is forbidden to sell it and then a greek citizen actually did sell this to your  client at some point and now that citizen is coming to the united states and saying it's still mine because i was not allowed to sell it a private party could do that even though the underlying basis for the claim has to do with greek law that's a question we're going to apply presumably i think you're not challenging the idea that if the united states court has jurisdiction here the ownership issue will to to tell you the truth again it depends potentially on how the litigation shakes out but at the moment we see there are no facts that greece has by which no facts by which you can certainly ownership claim under greek law or under new york or anything this doesn't fall under the greek law because factually it is not something that was found in greece in the ground post nine hundred and thirty four dollars and then exported in violation of greek direct and to highlight the point or when greece itself brought want to but if you lost that factual proposition if they could establish those facts you are not contesting that under greek law found this thing and do various steps your people wound up as holders in good faith having paid for it in switzerland or whatever a you are not contesting the validity of the greek law saying this whole thing is awful and belongs to greece or are you there are potential defenses as a matter of due process if the patrimony law hasn't actually been communicated or actually enforced there is a vein of case law to that effect under us case law that i think might be pluggable born where were were or ways off from that and i just want to emphasize as well that when greece brought one of these cases itself in new york just declare ownership but regulated the way these objects were sold let's say that the actual law said it could be sold by a greek person under certain conditions if they take certain steps and recent a letter to try to ensure that so followed the procedures that were laid out and we flaw that would be law enforcement regulation and that there'd be immunity in that kind of case and i think that would merit a different analysis for sure but it's absolutely not what we have here what we have here is an ownership claim and that's not me saying and i mean why isn't a law that just says you can't have these kinds of transactions as in force and isn't the activity law enforcement it's not going force it's not an exercise of law enforcement of hardy it's an exercise of their proportion property possible to say that well under even officially under the terms of the greek law this belongs to greece as a due process matter under us law we shouldn't give it back to them because it wasn't adequately communicated parties who are in possession of it is that right if you look at the case law is going to mclean and that involve prosecutions in this area you'll see you know discussion to that effect but that's not what we're letting in the complaint i'm just trying to answer the questions honestly about whatever whatever could come up that's not the basis for a lawsuit we don't think we ever get there excuse me tha