elements and under an investigation that in the absence of probable cause is ill defined assumes to kill tippit appellants and amounts to an indefinite detention of the property without compensation to suspected of crimes in connection with stolen goods and violations of the cultural property transfer act which you label in short and the l t c after the french words none of the appellant's is listed among the the return of any property that is not going to be used in connection with the investigation and we believe that that should have then after three and a half years determined by the  violation without compensation without adequate compensation to the property owners what we have here is a situation where they seize property without specifics especially going to criminal activity and then it's held as you know there is precedent instructing that for th amendment does not have extra territorial application what we've got here is a swiss warrant issued whether or not it would satisfy  united states court it's probable cause requirement they have pointed to what their suspicion was it's not nothing and in that sense i don't know how we view it as a taking which the courts have what might be termed or at least initially temporary deprivation of property as by just a freezing of assets that could become a taking if it is indefinite or prolonged situation that we have  success what is it that takes this case across any line that would would preclude wholesale review of foreign seizures well again it's  in switzerland to science to stand it on the fact that the this has all taken so long have you have bailed you south of your honor let me answer that by referring to correspondence between our client and the geneva prosecutor before they filed their action in a letter to the prosecutor that outlined the reasons why our client's property fell outside the scope of the l t c statute on which the a seizure is based in response to that the  honor two reasons one is that we don't believe that that relief would be effective in switzerland because we have a situation where there is an inherent conflict of interest and appealing to a swiss court  as a as a foreign national to you know contest the actions of their state prosecutor and i you know i think that that's just you know and and reasonable demand on you know for and claim and the well yes i think that you know what we're arguing is that the court should step in to fort relief much needed relief to american nationals for the indefinite detention of almost one hundred million dollars of their exhaust local remedies in a foreign forum before d bringing suit here that's very issue is up before the supreme court this term likely if there is an argument to december and these are two cases that are up from the d c circuit  therefore what we should do is apply worth and beat them and standards to taking that happened in switzerland and invalidate it based on american law that right yes that's correct and we believe that arbitrary condition taking say has to rise to the level of being irrational which i don't think you can satisfy here so then you get into the amount of time they've taken to act and what we know is that there's recourse in the swiss courts usually in the united states in our concept of due process for instance when someone is challenging state action if there's an opportunity to be heard in the state that's part of the process and you haven't been denied due process until you pursue that why why aren't those same obstacles problematic property that was years in connection with the crime or otherwise connected to a crime that's a type of property that can be seized for soon to a state police power you know with probable cause that's a type of property you have in the name cases that are cited by  that or that the whole thing is a smokescreen and they don't really have questions about the provenance of know what i'm saying is that with respect to appellants property there's not a shred of evidence or nothing absolutely nothing in the warrants or warrant they say is supported by these facts that they've outlined that it's indicate to them that they have reason to question the problem and and so my understanding was that while it's taken a long time they're trying to sort all this out and i don't see how you can get pos can't carry and until you see whether the swiss courts will give you relief i don't know how you claim that you've been denied d process by the length of time or your honor none of those items that were referred to in the warrant are connected to and if elements there's no suggestion that they are there's absolutely no suspicion articulated by anybody with respect to our client's property that's a decision actually doesn't matter how long until the property because regardless of the length of time they have probable cause rule criminal procedure forty one c or you know the chaffering section for return of the property because of a lack of probable cause but i think what we have here is a lack of probable cause coupled with an indefinite investigation which because of the lack of probable d cause with respect to my client's property is is ill defined and appears to simply assume the guilt of my clients and  their property they're treating it as guilty property even though there is no basis for them to do that and because of that they're what they're doing is proceeding on a piece by piece basis of th to have looting problems and they also seem to be recreating chains of tight so in an effort to find some retroactive justification for this seizure it also appears as though they turn this into an academic exercise and morning your honour's may please the court the district court got it exactly right the foreign sovereign immunity is act as interpreted by this court protects foreign sovereigns from lawsuits exactly like this that are designed to interfere with an ongoing criminal investigation on foreign soil this court can affirm on either of two clear cut grounds st under this court's decision in chattery as you alluded to judge r do not allege a taking much less taking in violation of international law a criminal warrant that freezes assets abroad simply does not constitute expropriation nd independently the that is so held international law was chosen precisely by congress to reflect international standards you can find those in the restatement that was other statement of foreign relations law that was in effect at the time a violation of international law taking context is one of three things property taken not for a public purpose a discriminatory taking based on nationality or where there is a taking that requires compensation no just compensation was given no where was there reference to the th or th amendment to the us constitution in defining international law in the statute as i was saying the nd basis of court can affirm is the fact that the property remains in geneva and undisputed property is not present in the united states as the statute requires so the statute starts from the presumption of immunity and it's plaintiff's burden to show an exception here there simply is no taking were notified both in the warrant itself as well as in the communication with the prosecutor there are avenues for judicial review in switzerland specifically one of the letters references article three hundred and ninety three of the swift criminal code that allows the plaintiffs or anyone aggrieved by the property deprivation to challenge the legal basis for the seizure to challenge the prosecutor's exercise of discretion in this case and also and this is important to challenge an unjustifi the investigation if that sounds familiar it's because it sounds a lot like rule forty one g b of criminal procedure in this country criminal criminal rule forty one she said that a person who was agreed by the deprivation of property brew for the properties returned the motion must be filed in the district where the property was the absolute same rules apply here as a matter of reciprocity and respect for the swiss tribunals scientists were aware of their procedure not international law as i said before the violation of international law is limited to something was not taken for public purpose or just permanent story or there was no just compensation really team i mean is that enough to say that there is discrimination on the basis of nationality no your honor absolutely not what discrimination on the basis of nationality me and international law is that the property d was se because it belongs to a non national essentially a discrimination provision to make sure that countries don't simply see the assets of foreigners and nationalize them below the surface the fact that they feel that they may not get a fair shake and again that's complete speculation because they've not tried is not the basis for just three minutes for you to hear the plaintiff cast the property as innocent but it's anything but the warrant lays the prosecutors here and allow a more expeditious review of now again this is a very populated investigation involving one point well about artifacts five thousand of those have already been returned and three and a half years and so this question starting point this argument just may not be right but you are right that there may become a point in time or an indefinite detention and become a nationalization de facto that is not th your property is still being returned either to the plaintiffs or to other property rights owner as we speak and this investigation is ongoing and so there may be a time when it ripens but it is not yet occurred and  central government and st we join in the arguments that have been made on behalf of geneva indicating that a u s court ought not to intercede in the affairs  in switzerland of a swiss criminal investigation especially in the circumstances as mr anderson indicated there are opportunities in switzerland for the appellants in this case to air their grievances but i come at the discussion this morning from a little bit of a different perspective because as i think mr anderson indicated the foreign sovereign immunity is act under the taking clause differentiate between the foreign sovereign itself and agencies and instrumentalities of the foreign sovereign with respect to the foreign sovereign the statute is plain if the property is not in the united states there is no jurisdiction under the ever say against the foreign sovereign undertaken squads and so what we have here is an argument by the appellants that both the office of culture and the customs administration are rather agencies or instrumentalities of the swiss central government the term agency or instrumentality is defined in sections  is it must be a separate legal person corporate or otherwise it has to be either majority owned by the foreign state or an organ of the state and lastly the property at issue has to be either owned or operated by that lawyer provided a declaration in his declaration is unequivocal neither customs nor culture is has any independent legal existence they are part integral parts of the swiss federal government and in fact switzerland in responding to the world trade organization where it had to list entities that are part of the central government and those that are outside the central government listed both culture and customs as part of the central government mr nuss bombs affidavit was not challenged in any regard before judge abrams  there is no evidence in the record that either customs or culture was anything but a part of the central government  do is they skip over that st prong and as i indicated the statute reads in the conjunctive not the disjunctive and they skip over the st one and say well we should look at the core function because we can now find that these organizations in particular the culture office of culture is engaged in commercial activities in the united states and therefore it is an agency and not a part of the central government and what is the evidence to which they refer it's that the office of culture publishes books offers them for sale on the internet sponsors art exhibits has a budget and things of that nature i daresay if you look at the department of defense as we did in the record before judge abrams the department of defense publishes books sells thousands of books on the internet  many of them dealing with cultural aspects of life on the united states the same could be said for the department of commerce and to be set by the department of state the fact that they are engaged in those kinds of activities that they have budgets that they  engage in commercial activity of one kind or another by no stretch of the imagination robs them of their fundamental governmental purpose and the same is true here let me turn to the rd prong of th conjunctive requirement that the agency or instrumentality has to own or operate the property and the question is how do we get there and it gets back to what mr anderson was saying before that you can't have a predicate for a jurisdiction based on a contingency of something that may happen in the future and that's exactly the basis upon which the appellant's predicate the argument that culture owns or operates the property and what they say is if the property is ultimately seized as opposed to being temporarily restrained then and it's to be repatch or e a did then the office of culture will become involved in that we and therefore the office of culture is now in possession owns or operates the property i think that that is a far stretch and as mr anderson indicated the contingency that cannot be a predicate for jurisdiction last touch on the discovery issue appellants did ask judge abrams for discovery but what do they say in their reply brief they say to the extent that two of issues exist with respect to whether the office of culture as a separate legal person from switzerland performs a commercial core function as an organ of switzerland owns or operates property to seize property langauges and commercial activity discovery is appropriate with all due respect that is hardly an indictment of the district court's decision it certainly is not showing the district court engaged in an arbitrary decision making process in fact one judge abrams asked counsel i see him of my time as up can i have one concluding sentence we know that in in our brains we also addressed the act of state dropped during an international comedy obviously the court does not have to reach to detentions of property and mr anderson referenced eight years and should treat but i think that's a little misleading because in chettri you did have probable cause and it was the existence of probable cause that we believe enabled it the authorities in that case to bring formal charges against the plaintiff in two and a half years here by contrast we have three and a half years with really no end in sight situation nd with respect to the availability of a swiss forum as alluded to earlier there was an attempt on the part of the geneva prosecutor to reverse the burden of proof on our clients something we don't think there is a staff writer you know the act itself and the same extent you would argue that the prosecutor's acting in violation of law in the united states you could argue that in switzerland you have made no attempt to do so that's what troubles me why shouldn't it trouble me well because we were concerned about subjecting our client to criminal jurisdiction in switzerland where there were no charges of any kind against him and he had had an experience where his sister in law had been  jurisdiction and i'm not sure how that means grates arbitrariness of the swiss actions that's that's a strategic choice you've made it doesn't necessarily demonstrate that their actions  arbitrary in this taking which is what you need to do to bring yourself within the exception of one of my missing i believe it's still an arbitrary action which you know we were unable to pursue and the the basis for a u s court deciding that rather than a swiss court which you don't want to go to because your client doesn't want to subject itself to jurisdiction the