indeed by herman goering himself in one nine hundred forty the district courts dismissal was based on a number of fatal errors first it improperly ruled that the post war dutch government could have sold and could asser that under the us allied external restitution policy the recovery of the receiving government was obligated to hold the return property in trust for the rightful owner and had the responsibility to restore the works to the owners from whom they had been taken the district court improperly disregarded this court's prior rulings on the policy of external restitution second the district court found that jock's widow desi waived her claims to dilute it all works by deciding not to commence a post war restitution proceeding both of these findings by the district court contravene the dutch government's own determination and finding which comprise acts of state they cannot be questioned by the dis court without any justification refused to follow the two thousand and six decision of the dutch state secretary and the findings of the dutch restitution committee on which its decision was based so i understand their point but what why why is an act of state equally compelling for the one nine hundred ninety nine dutch court of appeal decision or or the prior dutch decisions which said that your client  freely and voluntarily with advice of counsel relinquished any claim to these paintings why are they entitled to the act of state deference prior to the nine hundred ninety nine decision there were no proceedings in holland that ruled as you just said indeed this court in its prior ruling in this case found not just on the allegations the complaint but on the record and the arguments and positions of the parties and the briefs submitted by the solicitor general that there had been no internal restitution proceedings after the war decision in this case the crocs were no longer in the netherlands by the time of the one nine hundred ninety nine decision or the for the restitution proceedings and were not part of that proceeding but in any event even with respect to the paintings then works that were in the netherlands at that time that one nine hundred ninety nine decision was said nothing more than that it was too late for there to bring a proceeding under the one hundred which was one of the post war restitution laws in the netherlands that that had been closed out in  fifty one and it was too late and indeed that court ruled that as he had decided not to bring a restitution proceeding and the judge secretary said she's bound by that decision in terms of  settlement of the one hundred proceeding but that's all it did it was a procedural not a substantive ruling and she though accepting it said that it doesn't matter that they can't bring in the one hundred proceeding well let me get the facts but why isn't why are we treating the nine hundred ninety nine decision with the same act to state difference of your urges for other parts of the country with the same actors the difference because it doesn't have any bearing on the rise claim in this court because it didn't rule on any substantive issue number one the chronics as this court has noted were not in the netherlands at the time and that decision could not have been applicable to the chronics in any event but more so it's not a substantive decision it was just a decision that it was too late to bring any one hundred proceeding which had closed the time for which it closed fifty in one nine hundred fifty one but when the case then came to the state secretary to the restitution committee reviewed it they said yes we did i mean just i think you probably heard a whole long discussion about limitations in the last case so the dutch court isn't just saying it's too late it's saying you don't have a claim because your time for being the claim has lapsed under some material ruling by a dutch court no but it doesn't apply to the action in this case your honor it was only that they couldn't bring a proceeding under one hundred that has no bearing on whether the right can bring a conversion or imply of an action in this in this jurisdiction it only was a procedural ruling it did not say that she couldn't do it and it only said that she couldn't do it under one hundred and indeed its ruling is based on the fact that she made a decision not to bring anyone under proceed in a time of war and the restitution committee report and its findings that were adopted by the state secretary noted that she had good reason not to bring a proceeding under one hundred in the netherlands after the war because among other things the post were deemed the fair fact that taking the for sale by goring to be voluntary and even as late as one nine hundred fifty two in pleadings and i have secured case they again stated that it was nothing wrong not coerced and that was no way that she could get relief into the post war regime so that is why in two thousand and six the state tech the secretary based on the findings found eight that the for sale the going was not voluntary but rather involuntary and that based on all the facts and circumstances and the way does he was treated after the war she was entitled as a function of the new policy oriented restitution regime in the netherlands  decide the active state question no your honor it did not it did not even reach the active state question that this court instructed it to reach b because it was dismissed the case on other grounds asking you whether or not we should consider the act and state doctrine will be now that the record has been more fully developed the defendant in its opposition brief did raise that question in brief that question your honor and we responded in our reply brief press so i do believe that yes this court can rule on the active state question and in our briefs we believe we demonstrate that the celtic stroganoff which is what the  the act is the question was at the time of this court's last decision was a cell not a restitution a private not a involving private not public interest and that the active state doctrine  cannot be used to bar asian they hear your position is twofold one is that the dutch court of appeals which takes over the position of the council doesn't issue a decision that rises to the you know and so you know you have one hundred thirty has any active state value the previous it's a piggyback situation and away from the first time around which in effect the dutch court of appeal is affirming it's you may say it's not doing anything in terms of not being able to bring something but it's basically affirming that time has passed has and that only with respect to the procedure involved after the war in a special unique work time proceeding that the that she could not come back to fifty years later and really one hundred proceeding but the decision notwithstanding that  of the state secretary with respect to the two hundred paintings that were still there in the custody of the government but the chronics were not was that as a matter of law under the new restitution policy adopted by the parliament stroganoff as this court suggested in this last decision couldn't bring any one hundred perceiving but it has no bearing on whether the chronics can be sought now by conversion because we're not in any one hundred receiving in our view it was a purely procedural decision and now let me ask you if if the act of state does not apply and then i look at every five to say well what law does apply it's not clear to make it in some cases it talks about the terrorism declaration in the washington principles in other places it talks about applying dutch law in another part it says was not a question of dutch or us law it's a question of dutch policies and then another one europe apparently adopted the argument made by the commission for out recovery having to do with california substantive law so my question is let's just for talking purposes that there's no active state well plies in your view your honor on the garden variety claims of conversion replevin we believe that is a function of california the pictures here and california does provide as you've heard already today that you can't get good titles the stolen property even if you're good faith purchaser but the fact of the matter is that there are different elements that apply to different things we've taken the position that the dutch state secretary determinations with respect to what happened after the war what we do to the works have sticker that have been stolen my goring secretary decision expressly said that the goring are worst case was settled in the one nine hundred fifty s because they did not elect to seek restitution and by the way that looks like there's a lot of evidence there was on advice of counsel who said don't do it there are financial reasons the marketability of the collection is questionable you'll have to pay back the money you know for a whole bunch of reasons why so everybody agrees they got good advice and made a decision but in two thousand and one the secretary says you know this is all settled in the one nine hundred ninety nine dutch court opinion affirmed that that's all settled so why do you say this is not the chronics are not addressed the chronic for not dress was they were not in the netherlands at the time of any of those decisions discussions with the government think things were an issue with respect to those that settlement discussion ended with the goring paintings not being part of the settlement that was eventually entered in the one nine hundred fifty two so all of that w state secretary said in two thousand and six notwithstanding anything that happened then notwithstanding the fifty two settlement agreement notwithstanding the fact that she did that decided not to bring couldn't technically bring in the only one hundred proceeding but it didn't mean she had waived her rights indeed the state secretary after the one thousand nine hundred sixty fully aware of what happened then said she did not wait for rights in a proper restitution of those restitution proceedings so i'm wondering what you think the netherlands should have done where they under an obligation to hold on to the chronics in per emotion to dismiss and it was all sent back for development of the facts and now i understand in the record having read it the record exile these letters from advisors in the formal record bears out what the this court said was inviting her on this i agree your honor that that information was given by advisors in connection with the attempt to settle those claims with the government that settlement never came with respect to the goring paintings that advice of no moment because it was all in connection with what might have happened in a settlement that never occurred and it in any event it's out of the question now it was because the state secretary ruled in a proper proceeding as a representative of the sovereign under it's well thought out but you're saying that she didn't waive her rights and that's what we're relying on here which is the time of the one thousand nine hundred nine decision i'm sorry confirmed by the state secretary in the two thousand and six decision could not bring a proceeding to get them it was futile so yes while there was no opportunity to get them the under extreme restitution the  state had to continue to hold them in custody we submit that it did and indeed and now that that comes from this that stem from the london declaration of war from what international are legally binding document in y country of origin there was a condition and this condition in this respect of responsibility to find the true owner and get it back to them that was the only reason it went back to them under internal and directional restitution they should have been even turn restitution proceedings to get that done that was that did not happen here they were in the words of the reports in two thousand the two thousands that was never done it was inappropriate they didn't do the job the way they were regulatory system that they were contemplating so all of the receipts changed in terms of language but the of all the going paintings identical paintings had the receipt before and after the chronics they all had secretary's decision was based on the first regime in place then that it started in the mid ninety's before the washington principals of the top did and he just made a mistake the same mistake that the post w made and called voluntary then it went up to the court of appeals they said it's too late to bring one then the new regime was adopted i think in two thousand and two and that was the regime that the claim for the two hundred chronics who then made under and then the state secretary overruled the first the secretary and said you're wrong it was involuntary that was the whole subject of the of the report that she relied on and it was in her the word involuntary was in a decision  confirms that the the the going paintings that were now under consideration were held in custody still it was continual references to the custodial nature of the holding and in two thousand and twelve also set forth in our brief there was a return of the house sticker picture in two thousand and twelve long after all of this and the court the restitution of being the state secretary and that decision noted that this was being returned to the netherlands was to be held in custody for the pre war owner so throughout your honour's it was to be held in custody it should have been held in custody there was absolutely no authority for the district court the officials of the dutch government charged with the responsibility of implementing the now discredited post war rules said that even though at the beginning there was arguments that this became  may please the court fred rally jr for the norton simon the pallies i'd just like to clarify a couple of things about the nine hundred ninety nine decision that judge john auto and i think judge wardlaw asked about the one nine hundred ninety nine decision was  recuperated property and so it's sitting as the council for the restoration of rights what it concluded was that it could not grant this plane if restoration of rights ex officio it's not a statute of limitations ruling substantive ruling that it would not exercise its power to grant the plaintiff restoration of crites we know this from the very text of the of the decision where were the court says that it would not grant that the counsel for restoration of rights the plaintiff made a demand for comp monetary compensation and the monetary compensation was specific to works of art that had been transferred if you look to the list of works of art that had been transferred her sole the only two paintings on that list are the comics so the nine hundred ninety nine proceedings did in fact in compass the chronics we know that the decision that the court of appeal sitting is the council rendered was substantive and it operates as a rule of decision it is an act of state that we submit forecloses the plainest claim of title indeed we submitted doesn't as a matter of preemption forecloses the lawsuit from being heard here at all the one hundred which is the restoration of rights remedy that the plaintiff sought from the death a court of appeal is the exclusive remedy it's the exclusive memory for a claimant seeking restoration of rights this is a matter that plaintiff's own experts conceded and the dutch court of appeal held that it is not available to this plaintiff and we submit  in the absence of that if there is no restoration of rights available then the one thirty three operates as the district court concluded to vest the dutch state with title certainly but more than that it just for close is this honor so the jury independent is judge walter recognized by operation of the one thirty three which is the reparation statute that the dutch state enact it after the war the dutch state became the owner subject to each one hundred it is a separate ground from active state simply by operation of dutch law the dutch state became the owner unless there was a restoration of rights claim that was filed and that was successful that did not happen here as judge wardlaw noted the plaintiffs present predecessor in interest the house sticker firm told the dutch state it would not seek to recover or would not seek restoration of rights to the gehring work and so by operation of law the title fell to the dutch state which i would note it exercised in the one nine hundred fifty s when it auctioned off other house sticker works in so what the ninety ninety nine decision helps tell us in terms of dutch law and how it worked and it does tell us something about the operation of dutch law and it says there's even one hundred that's the relief that you were seeking consistent with the post war decorate declaration of start restitution decrees but this plaintiff is not entitled to it now mr case says that the two thousand and six decision somehow unraveled that but that can't be right because the the state secretary who returned the two hundred sixteen ngs that were still in dutch hands at that point expressly validated the dutch court of appeals decision and i think it's worth quoting what she says unlike the rest of tucson's committee i'm of the opinion that in this case it is a matter of restoration of rights which has been settled in one thousand nine hundred ninety hague court of appeal in its capacity is restoration of rights court gave a final decision in this case this is why this case is not included in the current restitution policy so when the state secretary is handing back the two hundred six paintings that are still in dutch hands it's not even implementing the two thousand and one policy it is acting in its discretion as a sovereign because it's dutch property that policy i would note expressly does not include and does not apply to works of art that have been transferred which is this very situation the dutch state had already exercised its sovereign power eighty seven when it transferred to work the works to our predecessor the museum's predecessor an interest commander stroganoff and prior to that it had exercised ownership of other house sticker works it treated the commander stroganoff that act in there's no question but that assad friends decision to transfer works like that to somebody who has claimed them in resolution of their claim that that is a sovereign act intitled to  raised a number of questions first first has to do with as i read their briefs that all of this may be icing on the cake but it sort of obscures what is a more fundamental requirement to dutch government church in effect to hold these paintings in trust yes and that most of what we're talking about is what you can do this and can't do that because the paintings are here they've been transferred yes and they said forget all that let's get to the bottom of it so why under the various other doctrines would they not have the obligation to hold these interest there's a couple of reasons for that just like you in the first as we've always asserted those polic so the policy u s policy of external restitution together with the washington principles and terra terrorism declaration we believe that those policies support us but as a matter of preemption and that's what was at issue in the last two appeals field preemption in the first one conflict preemption and the second one what mr k s suggesting is that those policies somehow fly here as a choice of law and matter and that can't be right first of all they are strictly speaking law they are not in non binding policies they certainly couldn't even if they were law and the dutch government in the absence of some kind of a treaty but they're not law is is sort of the essential point secondly mr kay gets the substance of those policies wrong if you look at external restitution in this court's decision in norton simon one makes this very clear what external restitution was intended to do  to look to the country of origin as the country and there were internal restitution schemes to do to dispose of claims like this so extra restitution was intended to look  country of origin now when you look at the washington principles and the terrorism declaration they fundamentally don't change that in the sense that what they say is countries that the policies that ought to be adopted by these countries and that they need to act within their own laws and that the norms principles that are adopted in the terrorism declaration have to be consistent with the national laws and regulations when you take all of those things together so you take external restitution which requires the u s to look countries of origin and take the knowledge meant in the terrorism declaration and the washington principles that these countries still have to act within their own laws you've got the articulation of the united states itself in this case in th solicitor general sprit it has said what u s policy is and indeed it has said what u s policy is in the context of this case and with respect to these paintings it says when a foreign nation like the netherlands here has conducted bonafide post war internal restitution proceedings following the return of nazi confiscated art to that nation under the external external restitution policy the us has a substantial interest in respecting the outcome of that nation's proceedings so we know that what the state did is fully consistent with u s policy and it is policy not law articulated in the terrorism declaration and the washington principles and it external restitution but it's yeah i think it is worth pausing and noting the features of the dutch scheme that the plaintiff has challenged throughout this rest of this litigation which has been running for ten years in the past the plaintiff has challenge the requirement that consideration be returned to plaintiff this challenge the fact that there is a time limit imposed it was imposed under the dutch restitution scheme these features were also in place in military law fifty nine which was the united states his own restitution scheme in occupied germany the plaintiff's experts ignalina that whether you apply international law or u s law requiring a claimant to come forward within a certain amount of time wouldn't violate either u s policy or international law so there's certainly nothing objectionable whether you are applying the lens of u policy or international law to the features that the plaintiff has at various times challenged and i would like to it to address the choice of law issue that mr k advanced in terms of california chattels it's clear that the law of the state where the transaction took place controls that is the law here of the netherlands and that's the law that the dutch side that the district court applied even if you applied the governmental interest test and we don't think that's the right test but if you were to apply the governmental interest test you would still we think apply dutch law in the plaintiff herself  acknowledged that in her brief to this court in the district court she argued dutch law she offered dutch experts three dutch experts on dutch law even in the reply brief in this court you've got this language where the really stale right i mean the location of the pickings has been known since one thousand nine hundred seventy one but yes yes that's not it now that has been the subject of prior litigation it was it was the subject of the first while there was a lot of to do  even under the amended statute the lawsuit was time barred we have made that argument but there's just no question but that dutch law controls the critical transactions that are at issue in this doc title dispute because  mr court ask you going back to active state there is one other kind of wrinkle sure in the last decision and which they posit without really deciding that there hickenlooper amendment yes may actually sweep into yes by the act of state for the because of the various criteria under which the amendment is effected particularly these are all these events were after nine hundred fifty nine i nlooper amendment doesn't apply at all it doesn't apply for a couple of reasons the first is that the relevant acts here if you consider them to be the dutch state's acquisition of title right so when no claim for that is challenged by this plaintiff and it took place before nine hundred fifty nine but even under if you applied the hickenlooper amendment the imposition of time limitation to seek restoration of rights the requirement of consideration being returned in by the way i would note that that was a discretionary requirement so if you look to create the one hundred if we make this very clear in the brief the council for restoration of  rights i believe the language is may may require that the consideration be returned so it wasn't a bright line rigid requirement but those features don't render the scheme deficient under international law claim that the scheme violated international law the dutch court of appeal held that the scheme was quote adequately guaranteed she brought a similar challenge under international law in the european court for human rights it was rejected there and then you you no for the present question if you're up thank you and give you a man that although we did extend your time before this well but you probably have a few things to say a few things to say i want to start with the statute of limitations your honor the one ruling that the lower court over the last eleven years has found in the plaintiff's favor was that the statute of limitations had not run and that this case was timely and that slow of the case there were a lot of other considerations besides what's being discussed here today at issue in that those motions i would appreciate your reading our briefs which discusses of a greater length but the fact of the matter is in our view and we believe we are correct that it was not a subsidy decision generally on our claims only that they would not allow the one hundred proceeding so late and indeed their finding was based on the fact that he decided not to bring the restitution proceeding which is exactly the same basis of non waiver that that that the two thousand six decision sound which we believe is the active state and the only active state in title to deference here because that was after the one nine hundred ninety nine decision even though she accepted the procedural aspects of that decision with respect to damages that mr ali raises the fact of the matter is there were no damages given with respect to the chronics in one thousand nine hundred nine and there was no remedy to give damages so it's really a non issue even though for whatever reason the dutch lawyers put it in the brief  the most important thing is that that the secretary's rule there is no waiver with respect to california law the only issue we say that california only applies to is the conversion claim in this case which is in california if as we claim the dutch government never took tight to the to the to the chronics they were held in custody until there was a remedy that the right was able to does exception does apply if this court decides that the commercial exception which i know we've been hasn't happened yet that would also be an exception we don't need the exceptions in our  view so that we don't believe any titles if you answered him even if it was a contract of sale which is not up for review your honor but is in the record below on the summary judgment so no title ever went to the government and  that distinguishing act of state there we do not challenge what happened in the post where we seem we say that this of the lower court judge misinterpreted misconstrued the events that happened there was no title under one thirty three even if you look at page twenty three to twenty four of the defendant's brief they admit that one thirty three mo for a moment in time people were urging it pretty quickly disappeared in favor of and  hundred made crystal clear that that meant someone who had died and had nowhere that wasn't more i wasn't busy dizzy had given the black book with its inventory to the government in exile he said we're going to get it back for you after the war she was totally known she decided for good reason not to bring interest to fusion proceeding there never has been one and with respect to the policies what we're saying your honor is that this court ruled that there is an international restitution thank that quite would like to thank our counsel both for a very very excellent argument obviously you are so well acquainted with the materials and also the briefing and we have a number of very helpful make us briefs on both sides and the good news is that it's all in english and so we've been able to kind of digest all of that so thank you very much and where adjourned for the morning