19

- 3457, 19

- 3481 Beierwaltes ; Aboutaam v. L’Office f é d é rale de la c ulture de la Confederation Suisse 1 

# United States Court of Appeals 2 

# For the Second Circuit 3 4 5 August Term 20 2 0 6 7 Argued : October 20 , 2020 8 Decided: J u n e 8 , 2 0 2 1 9 10 No s

. 19

- 3457 , 19

- 3481 11
12 13 L YNDA B EIERWALTES , W ILLIAM B EIERWALTES , 14 15 Plaintiffs

- Appellants , 16 17

v. 18 19 L’O FFICE F EDERALE D E L A C ULTURE D E L A 20 C ONFEDERATION S U I SSE (F EDERAL O FFICE OF 21 C ULTURE OF THE S WISS C ONFEDERATION ), 22 L’A DMINISTRATION F EDERALE D ES D OUANES 23 D E L A C ONFEDERATION S UISSE (F EDERAL 24 C USTOMS A DMINISTRATION OF THE S WISS 25 C ONFEDERATION ), L A R EPUBLIQUE ET 26 C ANTON DE G ENEVE (R EPUBLIC AND 27 C ANTON OF G ENEVA ), 28 29 Defendant s

- Appellees

. 30 31 32 33 H ICHAM A BOUTAAM , 34 35 Plaintiff

- Appellant , 36 372 v. 1 2 L’O FFICE F EDERALE D E L A C ULTURE D E L A 3 C ONFEDERATION S U I SSE (F EDERAL O FFICE OF 4 C ULTURE OF THE S WISS C ONFEDERATION ), 5 L’A DMINISTRATION F EDERALE D ES D OUANES 6 D E L A C ONFEDERATION S UISSE (F EDERAL 7 C USTOMS A DMINISTRATION OF THE S WISS 8 C ONFEDERATION ), L A R EPUBLIQUE ET 9 C ANTON DE G ENEVE (R EPUBLIC AND 10 C ANTON OF G ENEVA ), 11 12 Defendants

- Appellees

. * 13 14 15 16 Appeal s from the United States District Court 17 for the Southern District of New York 18 No s

. 18

- cv
- 8248, 18

- cv
- 11167 , 19 Ronnie Abrams , Judge

. 20 21 22 Before: R AGGI , S ULLIVAN , and M ENASHI , Circuit Judges

. 23 24 In 2017, Swiss law enforcement officers seized more than a thousand pieces 25 of ancient art owned by the p laintiffs as part of an ongoing investigation into 26 illegal trafficking of cultural property in Switzerland . The p laintiffs sued the 27 de fendant Swiss government entities and instrumentalities in the Southern 28 District of New York , alleging that the se izure was arbitrary and made without 29 probable cause. The district court (Abrams, J. ) dismissed the cases, holding that it 30 lacked jurisdiction over the d efendants under the Foreign Sovereign Immunities 31 Act. The p laintiffs now appeal, arguing that jurisdiction is proper under the 32 statute’s “expropriation exception, ” which applies in cases involving prop erty 33 taken by a foreign state in violation of international law. See 28 U.S.C. § 1605(a)(3). 34 We disagree and AFFIRM the district court

. 35

* The Clerk of Court is directed to amend the captions for both cases as set forth above.3 A routine law enforcement seizure does not ordinarily constitute a taking at 1 all , let alone a taking in violation of i nternational law, because it falls within a 2 state’s traditional police powers. And while there are a handful of narrow 3 exceptions to that general rule, such as when the seizure (i) is not rationally related 4 to a public purpose, (ii) is a pretextual attemp t to nationalize property without 5 compensation, or (iii) has continued for an unreasonable amount of time, none of 6 those exceptions appl ies here. Accordingly, the seizure was not a taking in 7 violation of international law , and the Foreign Sovereign Immuni ties Act therefore 8 does not vest the district court with jurisdiction. 9 10 A FFIRMED

. 11 12 A NJU U CHIMA ( William G. Pearlstein , on the 13 brief ), Pearlstein & McCullough LLP, New 14 York, NY , for Plaintiffs

- Appellants Lynda 15 Beierwaltes, William Beierwaltes, and Hicham 16 Aboutaam

. 17 18 R OBERT R EEVES A NDERSON ( Marcus A. Asner, 19 Arnold & Porter Kaye Scholer LLP, New York, 20 NY; Janine M. Lopez, Arnold & Porter Kaye 21 Scholer LLP, Washington, DC , on the brief ), 22 Arnold & Porter Kaye Scholer LLP, Denver, 23 CO , for Defendant

- Appellee La R é publique et 24 Canton de Gen è ve

. 25 26 M ICHAEL E VAN J AFFE ( Stephan E. Becker , on the 27 brief ), Pillsbury Winthrop Shaw Pittman LLP, 28 Washington, DC, for Defendants

- Appellees 29 L’Office F e d e rale De La Culture De La 30 Confederation Suisse and L’Administration 31 F e d e rale Des Douanes De La Confederation Suisse

. 32 33 R ICHARD J. S ULLIVAN , Circuit Judge : 34
Foreign governments and their instrumentalities are ordinarily immune 354 from suit in American courts under the Foreign Sovereign Immunities Act , 1

28 U.S.C. § 160 2 , et seq. (the “FSIA”). There are, however, several statutory 2
exceptions to that general rule. One of those exception s is the “expropriation 3
exception,” which may be invoked in certain cases involving property taken by a 4
foreign government or its instrumentality in violation of international law. See id

. 5
§ 1605(a)(3). 6
The question before us is whether that exception applies to property that 7

was seized as part of an ongoing law enforcement investigation. We hold that 8
such seizures ordinarily do not constitute a taking at all, much less a taking in 9

violation of internati onal law. And while there are a handful of narrow 10
circumstances in which a seizure can fall within the scope of the expropriation 11
exception , none applies to this case . Accordingly, we AFFIRM the judgment of the 12
district court (Abrams, J. ) 13

I. Background 14

A. Fact s 15
Lynda and William Beierwaltes are art collectors who are citizens and 16

residents of Colorado. During the 1990s, the Beierwaltes es assembled one of the 17
world’s leading private collections of ancient art. B y the early

- aughts, the couple 185 found themselves i n severe financial straits. So, in 2006, they engaged an art 1
gallery based in Geneva , Switzerland

– Phoenix Ancient Art S.A. (“Phoenix”)

– to 2
help them sell their collection. 3
Phoenix was founded in 1998 by Hicham Aboutaam ( together with the 4

Beierwaltes es , the “Art Owners”) a nd his brother, Ali Aboutaam. Since then , Ali 5

has overseen Phoenix’s day

- to

- day operations, while Hicham has manage d an 6
affiliated gallery based in New York, where he is a citizen and resident. O ver time , 7

Hicham himself has acquired a large personal collection of antiquities, many 8
pieces of which are stored with or consigned for sale to Phoenix in Geneva. 9
In December 2016, a border patrol officer for the Federal Customs 10
Administration of the Swiss Confederation (the “ Swiss Cu stoms Administration ”) 11
stopped a Land Rover registered to Phoenix that was entering the country across 12

the French border

. 1 During a routine inspection of the SUV , the officer identified 13
what appeared to be an illegally imported antique oil lamp along wit h receipts for 14
a storage warehouse in Geneva. The driver and passenger were questioned and 15
eventually released around 2:00 AM the following morning

. At about the same 16

1 The Swiss Federal Customs Administration, officially titled L’Administration F e d e r ale Des Douanes De La Confederation Suisse, plays a role similar to the U.S. Customs and Border Protection Agency.6 time, surveillance footage of the storage warehouse listed on those receipts 1
captured w hat appeared to be Ali’s wife, Biljana Aboutaam , participating in 2

“several movements of merchandise.” Aboutaam App’x at 56. 3

Based on this information, the Swiss Customs Administration developed a 4
“strong suspicion” that the warehouse was being used to store numerous pieces 5
of illegally imported art and antiquities. Id. Thereafter , o n February 10, 2017, the 6

Swiss Customs Administration issued a “denunciation , ” asserting that Biljana a nd 7
others were involved in the “sudden and suspicious move[ment] . . . of a number 8
of articles of cultural property.” Id. at 39

. This denunciation was similar to one 9

that had been prepared the prior month by the Swiss Federal Office of Culture 10
(together with the Swiss Customs Administration, the “Swiss Agencies ”)

. 2 That 11
earlier denunciation had identified “seven objects of suspicious provenance or 12
origin” held by Inanna Art Services S.A., a company affiliated with, and that leased 13
warehouse space from, Phoenix. Id. 14
On February 24, 2017, based on those two denunciations, the Public 15

Prosecutor’s Office of the Republic and Canton of Geneva issued a s earch and 16

2 The primary purpose of the Swiss Federal Office of Culture, the formal title of which is L’Office F e d e rale De La Culture De La Confederatio n Suisse, is to promote and preserve Swiss culture and heritage

.7 s eizure o rder, naming as defendants Ali, Biljana , Inanna Art Services , and others 1
(though neither the Beierwalteses nor Hicham ). 3 The order explained that the 2

defendants were “suspected .

. . of receiving stolen goods” and of illegally 3
trafficking in cultural property

. Id. As a result, it authorized the seizure of relev ant 4
objects and documents found in various storage locations used by Inanna Art 5
Services, Ali, and Ali’s companies, including Phoenix. Pursuant to that 6

authorization, Swiss authorities seized nearly 12,000 antiquities . R ather than 7
physically remove the o bjects, however, authorities simply “segregated [them] in 8
place.” Beierwaltes Br. at 11 n.9. Of those 12,000 artifacts , approximately 1,200 9
belonged to Hicham and another 18 to the Beierwaltes es

. The seizure order 10

informed the named defendants that they could appeal the order to “the criminal 11
board of appeals of the Court of j ustice” in Geneva. Aboutaam App’x at 41. 12
Days later, the Swiss Customs Administration issued a separate search 13
warrant as part of a “criminal customs inquiry” into potential violat ions of Swiss 14

law , including evasion of Swiss import taxes

. Id. at 56. Pursuant to that warrant, 15

1 11 additional artifacts were seized from Ali’s and Biljana ’s Geneva home , at least 16
one of which belonged to the Beierwaltes es

. Similar to the Geneva prosecutor, the 17

3 The Swiss structure of government resembles that of the United States, with cantons filling the role of states.8 Swiss Customs Administration permitted the seized items to remain with Ali and 1
Biljana, and simply “prohibited [ the couple ] from disposing of them. ” Id. at 57. 2

And, like the Geneva search warrant, the Swiss Customs Administration ’s warrant 3
made clear that the seizure could be challenged through domestic legal 4
proceedings. 4 5
Over a year later, o n May 7, 2018, the Art Owners sent letters to the Geneva 6
prosecutor to demand th e immediate release of their property

. Within days, t he 7

prosecutor ’s office responded with a letter of its own explain ing that the seized 8
property was suspected of being related to criminal activity and that expert 9
analysis was underway to determine wheth er any of the objects had been 10
imported in violation of Swiss law. To help speed up that process, however, t he 11

prosecutor offered the Art Owners the chance to submit documents concerning 12

the art’s chain of title. Like the warrants, the prosecutor’s letter again noted that 13
the Art Owners could appeal to the Geneva criminal court. 14
Rather than provide the referenced documents or seek relief in Swiss court , 15

4 The Swiss Agencies insist that the Swiss Customs Administration’s investiga tion is independent and separate from the investigation being conducted by the Geneva prosecutor’s office. The Art Owners, by contrast, appear to treat all these actions as part of a single investigation that is being overseen by the Geneva prosecutor’s o ffice with the aid of the Swiss Agencies. The choice between these formulations has no impact on our decision. Without deciding the issue, we adopt the Art Owners’ approach and refer to these actions as part of a single investigation.9 the Art Owners reiterat ed their belief that there was no legal basis for the seizure 1

and that their property should be returned. In each case, the prosecutor’s office 2
refused and indicated that the investigation was ongoing . The Beierwaltes es sent 3

a similar letter to the Swiss Customs Administration , which, like the Geneva 4

prosecutor, re sponded that its investigation would proceed but that the 5

Beierwaltes es were free to provide documentation to help establish their legal 6
ownership of the seized artifacts. 7
On August 8, 2018

– the same day the Beierwaltes filed their civil complaint 8

in the U.S. District Court for the District of Colorado

– the Geneva prosecutor 9
released around 5,000 of the 12,000 objects that it had seized

. Then, in April 2019, 10

the Swiss Customs Administrati on requested additional information from the Art 11

Owners about several items, and later released over one hundred items, six of 12

them Hicham’s

. 13

T hree sets of Swiss laws are relevant to that investigation. The first are Swiss 14
customs laws. Nearly all arti cles imported into Switzerland must be declared for 15

assessment of customs duties and value added tax. See Customs Act [CA] Mar. 18, 16

2005, SR 631.0, art. 25 (Switz.) ; Federal Act on Value Added Tax [VAT Act] June 17
12, 2009, SR 641.20 (Switz.)

. The Swiss Customs Administration is empowered to 1810 prosecute individuals suspected of evading th o se obligations. 1

The second are Swiss laws governing trade in cultural property. The seeds 2
for those laws were first planted in 1975, when Switzerland ratified the U nited 3
Nations Educational, Scientific and Cultural Organization (“ UNESCO ”) 1970 4

Conve n tion on the Means of Prohibiting and Preventing the Illicit Import, Export 5
and Transfer of Ownership of Cultural Property, 823 U.N.T.S. 231 (1972) , a multi

6
lateral treaty designed to tackle the growing problem of trafficking in stolen art 7
and antiquities

. Among other things, the UNESCO Convention required member 8
nations to “take appropriate steps to recover and return” stolen cultural property 9
“at the request of the [coun try] of origin.” Id. art. 7

. But, as the Convention was 10

not self

- executing, it had very little immediate effect

. 11
In June 2003 , however , Switzerland enacted domestic legislation to 12
implement the Convention. That legislation , the Federal Act on the Intern ational 13
Transfer of Cultural Property (the “CPTA”), formally criminalized the intentional 14
importation, sale, distribution, procurement, or exportation of cultural property 15
that was “stolen or otherwise lost against the will of the owner.” Federal Act on 16

t he International Transfer of Cultural Property [CPTA] June 20, 2003, art. 24 1711 (Switz.). 5 While several different divisions of the Swiss government can enforce 1
its provisions, the Swiss cantons, includ ing Geneva, have primary responsibility 2

for investigating and prosecuting criminal conduct under the CPTA. See id. art. 3

27. The CPTA also authorizes the Swiss Federal Office of Culture to monitor art 4
dealers’ compliance with the statute’s terms. 6 5

The last set of relevant Swiss laws concern s the n ation’s general prohibition 6
on the knowing possession of stolen goods. Specifically, Article 160 of the Swiss 7
Criminal Code makes it unlawful for any person to “take[] possession of . . . goods 8
which he knows or must assume have been acquired by way of an offence against 9
property.” Swiss Criminal Code Dec. 21, 1937, SR 311, art. 160 (Switz.)

. Naturally, 10
this provision is often implicated in cases involving CPTA violations. 11

B. Procedural History 12
In early August 2018, the Beierwaltes es sued the Swiss Agencies and 13

Geneva in the District of Colorado, seeking a declaratory judgment as to their title 14

to the seized artifacts , along with common law claims for conversion, unjust 15

5 The CPTA is somet imes referred to as the “LTBC,” as the statute’s native name is “Loi f é d é rale sur le transfert international des biens culturels.”

6 Notably, the 5,000 objects released by the prosecutor’s office on August 8, 2018 had been notarized on Phoenix’s registry a s pre

- CPTA imports ( i.e. , objects imported before the law’s June 1, 2005 effective date).12 enrichment, and civil theft. The following month, Hicham filed a similar 1
complaint in th e Southern District of New York . The Beierwaltes es ’ case was 2

thereafter transferred on consent to New York as related to Hicham’s. 3
On September 24, 2019, the district court dismissed both cases in a single 4

decision. See generally Aboutaam v. L’Office f ederale d e l a c ulture de la Confederation 5

Suisse , No s . 18

- cv
- 8248 , 18

- cv
- 11167 (RA), 2019 WL 4640083 (S.D.N.Y. Sept. 24, 6
2019). The district court reasoned that the Swiss Agencies and Geneva were 7

immune from suit under the FSIA. And while the statute inc ludes an exception 8
for cases involving property taken in violation of international law

– known as the 9
“expropriation exception”

– the district court determined that the Art Owners’ 10

property had been legally seized incident to a valid law enforcement inves tigation

. 11

See id. at *2

– 5. The district court also denied the Art Owners’ request for 12
jurisdictional discovery. See id. at *5. 13

The Art Owners each timely appealed the judgment

. Because the facts and 14
issues raised across the appeals are nearly identical , the appeals were argued in 15

tandem , and we now resolve them in a single opinion. 16

II. Burden of Proof & Standard of Review 17
A defendant seeking to invoke the FSIA’s protections must make a prima 1813 facie showing that it is a foreign sovereign. See Rukoro v. Federal Republic of Germany , 1
976 F.3d 218, 224 (2d Cir. 2020). If the defendant is successful in doing so, the 2
plaintiff bears the burden of demonstrating that an exception to foreign sovereign 3

immuni ty applies. See id. “Once the plaintiff has met its initial burden of 4
production, the defendant bears the burden of proving, by a preponderance of the 5
evidence, that the alleged exception does not apply.” Id. (quoting Pablo Star Ltd. v. 6

Welsh Gov’t , 961 F.3d 555, 560 (2d Cir. 2020)). 7

Still, a plaintiff seeking to drag a foreign government into court has her work 8

cut out for her. See Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling 9

Co. , 137 S. Ct. 1312, 1316 (2017) (“ [A] party ’ s nonfr ivolous, but ultimately incorrect, 10
argument that property was taken in violation of international law is insufficient 11
to confer jurisdiction. Rather, state and federal courts can maintain jurisdiction to 12
hear the merits of a case only if they find that th e property in which the party 13
claims to hold rights was indeed ‘ property taken in violation of international 14

law. ’ ” ) ; Rukoro , 976 F.3d at 224

– 25

. And since t he “basic objective” of sovereign 15
immunity is “to free .

. . foreign sovereign[s] from suit , ” Helm erich & Payne , 137 S. 16

Ct. at 1317 , this gesture of comity aims to shield them from the “expense, 17
intrusiveness, and hassle of litigation” altogether , Arch Trading Corp. v. Republic of 1814 Ecuador , 839 F.3d 193, 206 (2d Cir. 2016) (internal quotation marks omit ted) ; see also 1

Dole Food Co. v. Patrickson , 538 U.S. 468, 479 (2003) ( recognizing that sovereign 2
immunity is meant “to give foreign states and their instrumentalities some 3
protection from the inconvenience of suit ”) ; Cargill Int’l S.A. v. M/T Pavel Dybenko , 4
991 F.2d 1012, 1016 (2d Cir. 1993). Consequently, courts must endeavor to res o lve 5
questions of foreign sovereign immunity “as near to the outset of the case as is 6
reasonably possible,” even if that requires deciding disputed factual issues. 7
Helmerich & Payne , 137 S. Ct. at 1317; see also Rukoro , 976 F.3d at 224

– 25. 8
On appeal follow ing a dismissal under the FSIA , “w e review the district 9
court’s legal conclusions concerning sovereign immunity de novo and its factual 10
findings for clear error.” Arch Trading , 839 F.3d at 199 (internal quotation marks 11
and brackets omitted)

. Our review o f a district court’s decision to deny 12
jurisdictional discovery is even more deferential. W e assess such ruling s only for 13

abuse of discretion, “mindful that a district court has wide latitude to determine 14
the scope of discovery.” Id. at 206 (internal quot ation marks omitted). 1515 III. Discussion 1

A. The Foreign Sovereign Immunities Act 2

The principles of sovereign immunity, comity, and international reciprocity 3
are “deeply rooted” in our nation’s law s and history. Garb v. Republic of Poland , 4
440 F.3d 579, 585 (2d Cir. 2006) ; see also Helmerich & Payne , 137 S. Ct. at 1319

. Chief 5
Justice Marshall first crystalized those concepts in The Schooner Exchange v. 6

McFaddon , 11 U.S. (7 Cranch) 116 (1812) , when he explained that although “foreign 7
sovereigns do not enjoy an in herent right to be held immune from s uit in American 8

courts,” Opati v. Republic of Sudan , 140 S. Ct. 1601, 1605 (2020), “the United States 9

ha [s] impliedly waived jurisdiction over certain activities of foreign sovereigns

. . . 10

[a ]s a matter of grace and co mity , ” Verlinden B.V. v. Cent

. Bank of Nigeria , 461 U.S. 11
480, 486 (1983)

. 12

From that case sprang a doctrine of virtually “ absolute sovereign immunity ” 13
that exempted foreign governments from all manner of suits in our nation’s courts 14
for the next century and a half

. See Garb , 440 F.3d at 585 ; see also Permanent Mission 15
of India to the United Nations v. City of New York , 551 U.S. 193, 199 (2007)

. But that 16

doctrine was effectively controlled by the Executive Branch, not the Judiciary

. See 17

Verlinden , 461 U.S. at 48 6

– 87 ; see also Mobil Cerro Negro, Ltd. v. Bolivarian Republic of 1816 Venezuela , 863 F.3d 96, 103 (2d Cir. 2017)

. I n practice , sovereign immunity was 1
invoked by the State Department whenever it submitt ed a “suggestion [] of 2
immunity,” something it did in nearly every action brought against a foreign 3
sovereign. Verlinden , 461 U.S. at 48 6

– 8 7; see also Opati , 140 S. Ct. 1605; Rubin v. 4
Islamic Republic of Iran , 138 S. Ct. 816, 821 (2018). O nce a suggestion o f immunity 5

was made , the reviewing court would typically defer to the State Department on 6
the theory that issues of comity and foreign relations “implicate [] judgments [that] 7
the Constitution reserves to the political branches.” Opati , 140 S. Ct. at 1605. And 8

so it went until the middle of the twentieth century , when “this arrangement 9
[finally] began to break down.” Id. 10

In 1952, in what has been dubbed the “Tate Letter,” the State Department 11
changed course and enunciated “a new, ‘restrictive’ theory of sovereign 12
immunity

. ” 7 Garb , 440 F.3d at 585. Under that theory, sovereign immunity 13

continue d to be recognized where “public act s” were concerned but was no longer 14

extended in “cases arising out of a foreign state’s strictly commercial acts.” 15

Verlinden , 461 U.S. at 487; see also Garb , 440 F.3d at 585

. 16

7 The Tate Letter is available as an appendix to the Supreme Court’s decision in Alfred Dunhill of London, Inc. v. Republic of Cuba , 425 U.S. 682, 711

– 715 (1976) (App endix 2); see also Letter of Jack B. Tate, Acting Legal Adviser, Dep’t of State, to Acting Att’y Gen. Philip B. Perlman (May 19, 1952), reprinted in 26 Dep’t of State Bull. 984, 984

– 85 (1952).17 Unfortunately, application of th is approach “proved troublesome.” 1

Verlinden , 46 1 U.S. at 487. As in the past , foreign nations often exerted diplomatic 2
pressure on the State Department to recognize their immunity even in cases 3
involving commercial acts. See id. ; see also Republic of Argentina v. NML Cap

. , Ltd. , 4

573 U.S. 134, 141 (2014)

. I n other cases, foreign nations failed to seek Executive 5

Branch intervention altogether , thrusting courts in to the difficult position of 6
deciding whether immunity was appropriate based largely on analogy to prior 7
State Department decisions. See N ML Cap. , 573 U.S. at 141 ; Mobil Cerro Negro , 8 63 8

F.3d at 10 3

– 04

. 9

F or nearly 150 years, then, the standards governing foreign sovereign 10
immunity “were neither clear nor uniformly applied , ” and were subject to the ad 11

hoc decisions of E xecutive B ranch officia ls

. NML Cap

. , 573 U.S. at 141 (internal 12
quotation marks omitted)

. But all that changed in 1976, when Congress “abated 13
the bedlam” by pass ing the FSIA. I d. In the FSIA, Congress set forth “a 14
comprehensive set of legal standards governing claims of immunity in every civil 15
action against a foreign state or its political subdivisions, agencies[,] or 16

instrumentalities ” Verlinden , 461 U.S. at 488, and vested sole responsibility for 1718 applying those standards in the federal judiciary, see Mobil Cerro Negro , 8 63 F.3d at 1

104 (citing 28 U.S.C. § 1602)

. 2
The FSIA begins with the baseline presumption that foreign states are 3
“immune from the jurisdiction of United States c ourts.” Chettri v. Nepal Rastra 4

Bank , 834 F.3d 50, 55 (2d Cir. 2016) (quoting Saudi Arabia v. Nelson , 507 U.S. 349, 5
355 (1993)) ; see also Federal Republic of German y v. Philipp , 141 S. Ct. 703, 709 (202 1 ) 6
(citing 28 U.S.C. § 1604). But the law also includes several exceptions. See Zappia 7
Middle E. Constr. Co. v. Emirate of Abu Dhabi , 215 F.3d 247, 2 51 (2d Cir. 2000) ; see also 8
Mobil Cerro Negro , 8 63 F.3d at 104 (explaining that Congress’s intent was to 9
effectively codify the Tate Letter’s restrictive approach to sovereign immunity )

. 10
There are exceptions for waiver , commercial activity, exp ropriations, succession, 11
personal injury in the United States, arbitration, maritime liens, state

- sponsored 12

terrorism, and counterclaims

. See 28 U.S.C. §§ 1605, 1605A, 1607. Together, these 13
exceptions form the “sole basis for obtaining jurisdiction over a foreign state in our 14

courts .” Argentine Republic v. Amerada Hess Shipping Corp. , 488 U.S. 428, 434 (1989) ; 15
Arch Trading , 839 F.3d at 199 ( explaining that “ [a] bsent such an exception, the 16
immunity conferred by the FSIA strips courts of both subject matte r and personal 17
jurisdiction over the foreign state”). 1819 Because of this statutory structure, courts must be careful when interpreting 1
the scope of the FSIA’s exceptions to avoid upending the “careful balance” that 2
Congress intended to strike

. See Rubin , 138 S. Ct. at 822. Too restrictive a reading , 3

and foreign sovereigns could avoid accountability even where Congress dictate d 4

otherwise

. See id. Too expansive, and the exceptions could result in a flood of suits 5
against foreign states , prompting those na tions to reciprocate in foreign suits 6
against the United States

. See Philip p , 141 S. Ct. at 714 (expecting reciprocal action 7
by foreign nations); Helmerich & Payne , 137 S. Ct. at 132 2 ( noting the State 8
Department’s warning that weak sovereign immunity rul es could “produc[e] 9
friction in our relations with [other] nations , ” which might “lead[] some to 10
reciprocate by granting their courts permission to embroil the United States in 11
expensive and difficult litigation” (internal quotation marks omitted))

. 12
It is undisputed that the defendants in this case

– a political subdivision of 13

the Swiss Confederation and two Swiss federal agencies

– are all foreign 14
sovereigns under the FSIA. See 28 U.S.C. § 1603(a) (defining “foreign state” to 15
include “a p olitical subdivision of a foreign state or an agency or instrumentality 1620 of a foreign state”). 8 So, to hale them into court, the Art Owners must demonstrate 1
that this case falls within one of the FSIA’s exceptions. The Art Owners identify 2
only one except ion as applicable: the expropriation exception. 3
As its name suggests, the expropriation exception supplies federal court s 4

with jurisdiction over certain case s concerning property taken by a foreign 5

government : 6
A foreign state shall not be immune from the jurisdiction 7 of courts of the United States or of the States in any case 8

. . . in which rights in property taken in violation of 9 international law are in issue and that property or any 10 property exchanged for such property is present in the 11 United States in connection with a commercial activity 12 carried on in the United States by the foreign state; or that 13 property or any property exchanged for such property is 14 owned or operated by an agency or instrumentality of 15 the foreign state and that agency or instrumen tality is 16 engaged in a commercial activity in the United States

. 17
28 U.S.C. § 1605(a)(3). 9 18

8 There is some dispute about whether the Swiss Agencies are me rely agencies or instrumentalities of the Swiss Confederation or are part of the foreign state itself. Because this distinction does not affect our opinion, we do not resolve the issue.

9 Notably, “no other country has adopted a comparable limitation on s overeign immunity.” Philipp , 141 S. Ct . at 713. The reason for our nonconformity is that “the United States has long sought to protect the property of its citizens abroad as part of a defense of America’s free enterprise system.” Id.21 A plaintiff seeking to invoke this exception must show four things : 1

“ (1) [that] rights in property are in issue; (2) that the property was ‘taken’; (3) that 2
the taking was in violation of international law; and (4) that one of the [provision’s] 3
two nexus requirements is satisfied.” Rukoro , 976 F.3d at 224 (quoting Zappia , 215 4

F.3d at 251 ) ; see also Restatement (Fourth) of Foreign Rels. L . of U.S. § 455 c mt. a 5
(Am. L. Inst. 2018)

. 10 Our decision today concerns the second and third element s 6
of the exception , which requires unpacking the meaning of the phrase “taken in 7

violation of international law

. ” 8
We begin with the word “taken.” In this context, a taking is “[ c ] onduct 9

attributable to a state that is intended to, and does, effectively deprive an alien of 10
substantially all the benefit s of his interest in property.” Banco Nacional de Cuba v. 11

Chem. Bank N.Y. Tr. Co. , 822 F.2d 230, 239 (2d Cir. 1987) (emphasis omitted) 12
( quoting Restatement (Second) § 192 (Am. L. Inst. 1965) ) ; cf. Philip p , 141 S. Ct. at 715 13

10 “The Restatement [of Foreign Relations Laws of the United States (the “Restatement”) ], a kind of treatise or commentary, is not a primary source of authority upon which, standing alone, courts may rely for propositions of customary international law. Such wor ks at most provide evidence of the practice of States, and then only insofar as they rest on factual and accurate descriptions of the past practices of states, not on projections of future trends or the advocacy of the ‘better rule.’” United States v. You sef , 327 F.3d 56, 99 (2d Cir. 2003). Bearing this in mind, courts sometimes consult the Restatement when interpreting the FSIA and addressing international law. See, e.g. , Helmerich & Payne , 137 S. Ct. at 1320

– 21; Permanent Mission of India , 551 U.S. at 200; Walters v. Indus. & Com. Bank of China, Ltd. , 651 F.3d 280, 288, 295 (2d Cir. 2011); but see Garb , 440 F.3d at 596 n. 21.22 ( holding that the exception does not apply to a state’s taking of its own citizen’s 1
property)

. This applies equally to depriv ations that occur in o ne fell swoop and 2

to deprivations that occur in stages through the accumulation of small restrictions. 3

See Restatement (Third) § 712 cmt. g , n.7 (Am. L. Inst. 1987)

. 4

A significant exception to this general definition concerns a state’s exercise 5

of its traditional regulatory or police powers over its internal affairs. See E

. N.Y. 6

Sav. Bank v. Hahn , 326 U.S. 230, 232 (1945) (explaining that “the police power[] is 7
an exercise of the sovereign right of the government to protect the general welfare 8

of the people” (internal quotation marks and alterations omitted)) ; see also 9
Restatement (Third) § 712 cmt. g (noting that “[a] state is [ordinarily] not 10
responsible for loss of property or for other economic disadvantage resulting from 11
bona fide general taxation , regulation, forfeiture for crime, or other action of the 12
kind that is commonly accepted as within the police power of states”) ; Restatement 13
(Second) § 197 (“Conduct attributable to a state and causing damage to an alien 14
does not depart from the internati onal standard of justice .

. . if it is reasonably 15
necessary for .

. . the enforcement of any law of the state .

. . that does not itself 16
depart from the international standard”)

. Such actions typically do not constitute 1723 a t aking, even if they result in t he loss of property or other economic harm. 11 S ee, 1

e.g. , West v. Multibanco Comermex, S.A. , 8 07 F.2d 832, 83 1

– 3 2 (9th Cir. 1987) ( holding 2
that a state’s institution of monetary exchange controls did not constitute a taking 3

because it was within the countr y’s “basic authority to regulate its economic 4
affairs”) ; Restatement (Third) § 712 cmt. g, n.6

. A state , however, may not effect 5

a n illegal taking in the guise of an exercise of its police powers. For that reason, 6

when a state has “effectively deprive [d] an alien of substantially all the benefits of 7
his interest in property,” Banco Nacional , 822 F.2d at 239 , through an ostensible 8
exercise of its police powers, whether a taking has occurred will turn on whether 9
that taking was “in vi olation of international law.” Rukoro , 976 F.3d at 224. 10

T he expropriation exception is concerned only with illegal takings. And the 11
legal standards by which taking s are judged are not found in the domestic laws of 12

the United States or even the laws of t he “expropriating” nation, but rather in 13
customary international law. See Permanent Mission of India , 551 U.S. at 200 ; Chettri , 14

11 In many ways, this mirrors our domestic law on takings. See Bennis v. Michigan , 516 U.S. 442, 452 (1996) (holding that “[t]he government may not be required to compensate an owner for property which [the government] has . . . lawfully acquired under the exercise of governmental authority other than the power of eminent domain”); United States v. Davis , 648 F.3d 84, 97 (2d Cir. 20 11) (explaining that “it has long been settled that if the government acts pursuant to a forfeiture statute, it may seize personal property without compensating the owner” (internal quotation marks omitted)).24 834 F.3d at 58 ; see also Flores v. S. Peru Copper Corp. , 414 F.3d 233, 250

– 52 (2d Cir. 1
2003) (discussing various sources that may be used to identify principles of 2
customary international law)

. Put more colorfully, “United States law governs 3
domestically but does not rule the world.” Phili p p , 141 S. Ct. at 713 (quoting Kiobel 4
v. Royal Dutch Petroleum Co. , 569 U.S. 108, 115 (2013)). 5

To determine which takings offend these international standards, we have 6
historically turned , in part, to House Report 94

- 1487 on the FSIA legislation. See 7

Chettri , 834 F.3d at 58; Zappia , 215 F.3d at 251. The House Report identifies three 8

cate gories of illegal takings: (i) “nationalization[s] or expropriation[s] of property 9
without payment of .

. . prompt [ , ] adequate [ , ] and effective compensation”; 10
(ii) takings that are “discriminatory”; and (iii) takings that are “arbitrary.” 12 See 11
H.R. Rep. No. 94

- 1487, at 19

– 20 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6618; 12

12 We have previously framed the latter two cate gories as subsets of the first, see Zappia , 215 F.3d at 251, but it is more accurate to treat each of the three as conceptually distinct, see H.R. Rep. No. 94

- 1487, at 19

– 20 (1976), as reprinted in 1976 U.S.C.C.A.N. 6604, 6618 (stating that each of these

c ategories is “include[d]” in the phrase “taken in violation of international law” (internal quotation marks omitted)); see also Restatement (Third) § 712(1) (identifying three categories of takings that violate international law). This is a minor clarific ation, though, and does not change our analysis here.25 see also Chettri , 834 F.3d at 58. In this appeal, the plaintiffs focus their argument s 1
on the third category, claim ing that the seizure of their artwork was arbitrary. 13 2
Today, we hold that a n “arbitrary taking ” is a taking that bears no rational 3
relationship to a public purpose. We settle on this definition for two reasons. First, 4
the lack of a public purpose has been identified by both courts and the Restatement 5

as a paradigmatic example of a taking that violates international law

. See, e.g. , 6
Comparelli v. Rep ú blica Bolivariana de Venezuela , 891 F.3d 1311, 1326 (11th Cir. 2018); 7
Cassirer v. Kingdom of Spain , 616 F.3d 1019, 1027 (9th Cir. 2010) ( en banc ); Chettri v. 8

Ne pal Bangladesh Bank, Ltd. , No. 10

- cv
- 8470 (PGG), 2014 WL 4354668, at *16 9
(S.D.N.Y. Sept. 2, 2014), aff’d , 834 F.3d 50 (2d Cir. 2016); Smith Rocke Ltd. v. Rep ú blica 10

Bolivariana de Venezuela , No. 12

- cv
- 7316 (LGS), 2014 WL 288705, at *7 (S.D.N.Y. Jan. 11

27, 2014); Restatement (Third) § 712 (1)(a) & cmt. e ; Restatement (Second) § 185 (a)

. 12

Second, this definition dovetails with the restrictive approach to sovereign 13
immunity announced in the Tate Letter and largely codified in the FSIA , see 14
Philipp , 141 S. Ct . at 713 ; Garb , 440 F.3d at 585

– 86 , which “recognize [ s ] immunity 15
in cases based on a foreign state’s public acts , but not in cases based on commercial 16
or private acts, ” H.R. No. 94

- 1487, at 8 , as reprinted in 1976 U.S.C.C.A.N. at 6607

. 17

13 The plaintiffs do not argue that Switzerland or Geneva has nationalized or expropriated their artwork or that the seizures were the result of discrimination.26 The Art Owners propose a much broader interpretation of the term

. 1

D rawing on a definition of “arbitrary” found in the Restatement (Third) , they 2
suggest that an “arbitrary taking ” refers to any taking that is merely “unfair and 3
unreasonable[].” Beierwaltes Reply at 4 (i nternal quotation marks omitted)

. But 4

th at definition is not only unsupported by caselaw, it is also taken out of context. 5
Specifically, “unfair and unreasonable” is how the Restatement describe s actions 6
by a foreign sovereign that fall under Subsection (3) of § 712 , i.e. , those that, 7
although caus ing economic injury to an alien , “fall[] short of an act that would 8
constitute an expropriation under Comment g .” Restatement (Third) § 712 n.11. 9
Comment g, in turn, describes subsection (1) of § 712, covering “a taking by the 10
state of the property of a national of another state[.]” Id. § 712(1) (emphasis 11
added). And b ecause the FSIA speaks only of “rights in property taken in violation 12

of international law,” 28 U.S.C. § 1605(a)(3) (emphasis added), rather than “other 13
arbitrary or discriminatory acts or omissions by the state that impair property or 14

other economic interests , ” Restatement (Third) § 712 (3), that definition has no 15
place here. 16

Instead , we conclude that a foreign state’s action is an ar bitrary “taking in 17

violation of international law” if the foreign state exceeds its traditional police 1827 power s to deprive an alien of substantially all the benefit of her property in a way 1

that is not rationally related to a public purpose. 2

B. The Swiss Invest igatory Seizure 3
At the heart of the parties’ dispute is the question of whether a temporary 4
seizure made as part of an ongoing law enforcement investigation can constitute 5

a taking in violation of international law

. The answer is “ yes, ” but only in rare 6

circumstances. S uch circumstances are not present here. 7

1. When Does a Temporary Law Enforcement Seizure Constitute a 8 Taking in Violation of International Law? 9 Temporary l aw enforcement seizure s ordinarily do not constitute a taking 10

at all , much less a taking in violation of international law. 14 See Chettri , 834 F.3d 11

at 58 (rejecting “the proposition that ” a foreign state’s decision to “fr[ee]ze .

. . 12

financial assets in connection with .

. . a routine law enforcement action

. . . 13

constitut es a taking within the meaning of [the FSIA]” ) ; see also Off. Stanford Invs. 14
Comm. v. Bank of Antigua , No. 13

- cv
- 762 (DCG), 2018 WL 3956470, at *4 (N.D. Tex. 15
Aug. 17, 2018); Hilsenrath v. Swiss Confederation , No. C 0 7

- 02782 (WHA), 2007 WL 16
3119833, at *4 (N .D. Cal. Oct. 23, 2007), aff’d , 402 F. App’x 314 (9th Cir. 2010); 17

14 Again, this resembles domestic law on ta kings. See Davis , 648 F.3d at 97; see also AmeriSource Corp. v. United States , 525 F.3d 1149, 1154 (Fed. Cir. 2008); Acadia Tech. , 458 F.3d at 1331

– 32; United States v. $7,990.00 in U.S. Currency , 170 F.3d 843, 845

– 46 (8th Cir. 1999).28 Greenpeace, Inc. (U.S.A.) v. State of France , 946 F. Supp. 773, 782

– 84 (C.D. Cal. 1996); 1

Restatement (Third) § 712 cmt. g; Restatement (Second) § § 192 n.2 , 197

. Th is is 2

because such seizures usually fall within the scope of a state’s traditional police 3

powers. See Restatement (Third) § 712 cmt. g ; cf. Warden, Md. Penitentiary v. 4
Hayden , 387 U.S. 294, 302 (1967) (discussing police powers in the domestic context)

. 5

But, of course , a foreign state cannot absolve itself of liability for an otherwise 6
illegal taking simply by branding the action as a law enforcement seizure. 7
Accordingly, there are a handful of circumstances in which this general rule does 8
not apply . T hree of those c ircumstances are relevant here. 9

First, a law enforcement seizure may constitute an illegal taking if the 10

seizure is not rationally related to a public purpose

. See West , 807 F.2d at 831 11
( recognizing that “[v]alid expropriations must always serve a public purpose” 12
(emphasis added) ) ; Chettri , 2014 WL 4354668, at *16 ( similar ) ; see also Restatement 13
(Third) § 712(1)(a)

. In other words, if a law enforcement seizure is “arbitrary , ” as 14

we explained that te rm above , then it both falls outside the scope of the state’s 15
traditional police powers because it serves no valid governmental objective and 16

violates international law. 1729 Determining whether a particular seizure constitutes an arbitrary taking for 1

purposes of the FSIA is not the same as asking whether the seizure is un lawful 2

under the “seizing” nation’s applicable criminal laws. See Chettri , 834 F.3d at 58 3
(holding that “conclusory criticisms of the manner in which [the foreign state] has 4
conducted its investigation are insufficient to prove a violation of international 5
law”). Rather, it requires first asking whether the law enforcement inv estigation 6

itself is rationally related to a public purpose. 15 If so , then as long as the seizure 7

bears a rational connection to that investigation, the seizure is not arbitrary. See 8

Chettri , 834 F.3d at 58 ; West , 807 F.2d at 831 ; Greenpeace , 946 F. Supp . at 783

. 9

Second, even if a seizure bears some facial connection to a public purpose , 10
it may nonetheless constitute an illegal taking if th at public purpose is shown to 11

be a “ sham ”

– that is, if the seizure is merely a ploy by the foreign state either to 12

nationalize the plaintiff’s property without compensation or to discriminate 13
against her because she is an alien

. Siderman de Blake v. Republic of Argentina , 965 14
F.2d 699, 704 (9th Cir. 1992); see Restatement (Third) § 712 c mt. g. While pretextual 15

seizures will likely be few and far between, such seizures will often be 16

15 Investigations into suspected criminal conduct will generally satisfy this requirement, as protecting the public from harm is unquestionably a public purpose. See Chettri , 834 F.3d at 58; Hilsenrath , 2007 WL 3119 833, at *4 (holding that “[i]t is frivolous to claim that freezing assets during a legitimate criminal investigation violated criminal law”).30 recognizable from an examination of the investigation’s course , or because the 1
foreign officials have acted in such a way or made statements that strongly sug gest 2

that there is an ulterior motive at work

. See , e.g. , Comparelli , 891 F.3d at 1317, 1327

– 3
28 (remanding for district judge to consider whether expropriation exception was 4
satisfied where government seized plaintiffs’ chemical company on grounds it 5

ille gally stored three million unreported pounds of hydrochloric acid , but physical 6
audit revealed only excess es “within the normal tolerance margins associated with 7
the weighing of bulk purchases”); see also Siderman , 965 F.2d at 704 (finding 8
expropriation exception satisfied under pre

- Helmerich & Payne standard where 9
government first “imprisoned and killed the accountant to whom [Sidermans] had 10
granted management powers” and then held ex parte receivership proceeding on 11
grounds company “lacked a representative”)

. 12

Third , a temporary law enforcement seizure that is not initially a taking can 13

nonetheless ripen into an arbitrary one if it continues for a n unreasonably long 14

and indefinite period

. 16 See Sardino v. Fed. R sr v. Bank of N.Y. , 361 F.2d 106, 111 (2d 15
Cir. 1966) (acknowledging that it is “hard to say there is no deprivation when a 16

16 It goes without saying that this does not apply to seizures that become permanent because of a bona fide crimina l conviction. See Restatement (Third) § 712 cmt. g (indicating that a “forfeiture for crime” does not constitute a taking even though it results in the permanent “loss of property”).31 man is prevented both from obtaining his property and from realizing any benefit 1
from it for a period of indefinite duration which may o utrun his life”) ; see also 2
Restatement (Third) § 712 cmt. g, n.6 (explaining that a temporary seizure “might 3
become a taking if it is long extended”); Restatement (Second) § 192 n.2

. Of course, 4
there is no catchall answer to the question of how long is too long; each 5
investigation is unique and must be considered in context. But there are a few 6

factors that courts might consider in addition to the duration of the seizure to help 7
guide this asse ssment , including : (i) whether the investigation has been 8
prosecuted diligently since the seizure occurred ; (ii) the complexity and scope of 9
the investigation; (i ii ) whether formal criminal charges have been filed that bear 10

some connection to the seized p roperty ; and ( i v) whether the plaintiff has 11
cooperated with the investigation or taken any other steps, judicial or otherwise, 12

to move the investigative process along

. 17 See, e.g. , Chettri , 2014 WL 4354668, at 13

*18; Greenpeace , 946 F. Supp. at 783. 14

The Ar t Owners identify a fourth circumstance in which they argue a law 15

17 This last factor is not intended to impose an exhaustion requirement on plaintiffs. Rather, it is an acknowledgment that, all else being equal, a seizure’s duration will look very different depending on whether the plaintiff has taken advantage of the to ols at her disposal to help speed up the investigation. Simply put, a plaintiff who refuses to utilize those lawful tools should reasonably expect that the investigation will take longer as a result.32 enforcement seizure would come within the boundaries of the expropriation 1
exception : if the seizure is made without probable cause in contravention of either 2
the “seizing” nation’s law (here, Switzerland) or the Fourth Amendment

. But , in 3
making this argument, the Art Owners identify no precedent suggesting that 4

international law has adopted th ose probable cause standards , let alone that a n 5
investigatory seizure in violation of th ose standard s would automatically 6

constitute a n illegal taking

. And while that alone is fatal to the Art Owners’ 7
position, it is also noteworthy that the Fourth Amendment itself h as only limited 8
extraterritorial application

. See United States v. Getto , 729 F.3d 221, 227

– 28 (2d Cir. 9
2013) (holding that the Fourth Amendment generally does not require 10
“suppressing evidence collected by foreign law enforcement authorities abroad”); 11

se e also United States v. Hasbajrami , 945 F.3d 641, 662

– 63 (2d Cir. 2019); United States 12

v. Odeh ( In re Terrorist Bombings of U.S. Embassies in E. Africa ), 552 F.3d 157, 167

– 71 13
(2d Cir. 2008). We therefore reject the Art Owners’ invitation to conclude that a 14
foreign law enforcement seizure that fails to meet the probable cause standards 15

found in Swiss or United States law ipso facto constitutes a taking in violation of 16

international law. 1733 Before applying these principles to the law enforcement seizure at issue 1
here, we pause for a note of caution. Specifically, c ourts must be deferential when 2
assessing a foreign sovereign’s police activities. O ne of the FSIA’s purposes is to 3
avoid stoking international tensions , see Philipp , 141 S. Ct . at 714 ; Zappia , 21 5 F.3d 4

at 251 , and meddling in a foreign nation’s ongoing criminal investigation s will 5

often be invasive of its sovereignty. As a result, we expect that law enforcement 6

seizures will be declared to be illegal in only rare and egregious circumstances. 7

See Chettri , 834 F.3d at 58; Restatement (Second) § 185 cmt. b ( noting that “ [t] here 8
appear to be few, if any, cases in which a taking has been held unlawful under 9
international law on the sole and specific ground that it was not for a public 10
purpose”). 11

2. The S wiss Law Enforcement Seizure Is Not a Taking in Violation 12 of International Law 13

T he investigation in this case bear s a rational relationship to a public 14
purpose. Swiss law enforcement officers observed Phoenix employees and 15

Hicham’s sister

- in

- law engaging in what appeared to be criminal violation s of 16
customs laws and the unlawful importation of art. C urtailing crimina l activity is 17
in the public interest, and stopping the illegal import ation of cultural property is 18
important to Switzerland ’s efforts to comply with its obligations under the 1934 UNESCO Convention

. 1
The Art Owners’ property also has a rational connection to th is 2
investigation , as it was stored in warehouses owned and operated by individuals 3
whom Swiss authorities suspected of illegally importing and possessing cultural 4

property

. This remains true regardless of whether the seized art was actuall y 5
owned by one of the named defendants in the Swiss investigation or was owned 6
by a third party (like the Art Owners)

. See Off. Stanford Invs. Com m

. , 2018 WL 7
3956470, at *1, *4 ( finding that a seizure of assets involved in a Ponzi scheme was 8

not a taking even though those assets were scheduled to be distributed to the 9
fraud’s victims); c f. Bennis , 516 U.S. at 453 (explaining that , in the context of 10

domestic law, the inquiry focuses on the character of the government action, not 11
the culpability or in nocence of the property owner). In either case, the property 12

bore some rational connection to the investigation. Accordingly, the seizure of the 13
Art Owners’ property was rationally connected to a public purpose and , as a 14

result, was not arbitrary. 15

While that conclusion could have been overcome had the Art Owners 16

identified facts strongly suggesting that the investigation and seizure were merely 17

a pretext to allow Switzerland to nationalize their property without compensation 1835 or to discriminate against the m because of their foreign citizenship , the district 1
court did not clearly err in finding that they had not done so. To start , the 2
investigation ’s course does not indicate pretext . The Art Owners’ property was 3

seized pursuant to two warrant s , which were obtained only after a routine 4

customs search and follow

- on surveillance operations revealed possible criminal 5
activity. And rather than comingle the Art Owners’ artifacts with state property, 6

the investigators were careful to “ segregate[] [ the art ] in place” and have merely 7
restricted the Art Owners’ ability to “exercis[e] [their] ownership rights.” 8

Aboutaam Br. at 10 n.9 ; Beierwaltes Br. at 11 n.9 (same) . Thus, there is no 9
suggestion that the Swiss Agencies or Geneva are claiming a legal interes t in the 10
seized property or are manufacturing after

- the

- fact explanations for an illegal 11
expropriation

. 12

Moreover , in the years since the property was seized, the investigators have 13

continued to collect and review evidence. The investigators have also repe atedly 14
attempted to work cooperatively with the Art Owners. Those facts are consistent 15

with a bone fide law enforcement investigation. See Greenpeace , 946 F. Supp. at 783. 16
Thus, the district court’s finding that “neither the timing of the items’ release nor 17
the level of specificity of the warrants furnishes an appropriate basis to scrutinize 1836 . . . [the] ongoing criminal investigation” was not clearly erroneous. Aboutaam , 1

2019 WL 4640083, at *4. 2

Likewise, the Art Owners have identified no other facts tha t would seriously 3
call into question the purpose of the investigation

– at least, not in a ny way 4
relevant to the expropriation exception

. T he Art Owners make various threadbare 5
assertions about the lead Geneva prosecutor, Claudio Mascotto, and his team , 6
suggesting that the investigation is merely a publicity stunt and a vindictive 7
attempt to harm Ali and Phoenix. 18 For instance, the Art Owners make vague 8

references to Mascotto ’s “reputation as an aggressive, publicity

- seeking 9
prosecutor,” Beierwalt es Br. at 19, to one of the investigation’s experts behaving in 10
an “unprofessional” manner , id. at 22, and to the possibility that this investigation 11
is being used to coerce Phoenix to withdraw a legal challenge to a separate CPTA 12
proceeding . But, in each case, the Art Owners’ assertions are entirely conclusory

. 13
And, in any event, while this behavior (if true) might constitute a breach of Swiss 14

law, the Art Owners have not identified what international laws it would violate. 15
Consequently, there is no bas is on which to conclude that this seizure is in fact an 16
illegal taking in disguise

. 17

18 Mascotto resigned from his position in December 2019 to run for public office. The investigation is currently led by his successor.37 Finally, the Art Owners argue that the seizure violated international law 1

because it was prohibited by the UNESCO Convention. In short, the Art Owners 2
suggest that, under Article 7(b)(ii) of the Convention, illegally imported cultural 3
property cannot be seized absent a request by the property’s nation of origin. 19 4
This treaty provision o ffers a remedy for nations whose cultural property was 5
illegally exported but, contrary to the Art Owners’ claim, does not purport to serve 6
as the exclusive means for states to combat art trafficking. Thus, while a seizure 7
in express violation of an inter national treaty could potentially constitute a breach 8

of international law, see Flores , 414 F.3d at 256; Restatement (Second) § 165 (1)(b) , 9
we agree with the district court that no such violation occurred here because, 10
among other reasons, the Art Owners id entify no provision in the Convention that 11

would prohibit Switzerland from seizing stolen or trafficked goods inside its own 12

borders , even if such a seizure is not mandated by the Convention

. See Aboutaam , 13

2019 WL 4640083, at *5. 14

Because the seizure w as n ot a taking in violation of international law when 15

19 Article 7(b)(ii) merely requires the State Parties to the Convention to “undertake .

. . at the request of the State Party of origin , to take appropriate steps to recover and return any [illegally exported] cultural property imported after the entry into force of this Convention ” and requires “[t] he requesting Party [to] furnish, at its expense, the documentation and other evidence necessary to establish its claim for recovery and return. ” 823 U.N.T.S. at 241.38 it occurred, the only way it might come within the expropriation exception is if it 1

had become a taking over time. We conclude that it has not. 2
As of now, the seizure has been ongoing for a little more th an four years 3
( and, importantly, the Art Owners sued after only one and a half years)

. This 4
duration is not out of step with what one would expect in a n investigation 5
involving thousands of pieces of art and antiquities , nor is it significantly longer 6

tha n the duration of seizures that courts have previously found not to constitute a 7
taking

. See , e.g. , Chettri , 834 F.3d at 54, 58 ( two and a half years before criminal 8
charges were filed) ; Acadia Tech. , 458 F.3d at 132 9 ( four years before forfeiture 9
complaint was filed in domestic investigation )

. I n fact, the Art Owners’ counsel 10

conceded below that the seizure “isn’t indefinite yet.” Aboutaam App’x at 613. 11
And while criminal charges have not yet been filed, the investigation has 12
progressed since the initial seizure. 13

Also relevant here is the fact that the Art Owners have thus far refused to 14
cooperate with the investigation and have not otherwise taken advantage of 15

domestic Swiss remedies that could potentially speed things along

. Having 16

chosen not to avail themselves of th os e opportunities, the Art Owners should 17
reasonably have expected that the investigation would take longer. To be sure, 1839 the Art Owners did send a handful of letters to Swiss officials identifying which 1
pi eces of art they claim legally belong to them. The record, however, contains no 2
evidence that the Art Owners provided documentation that could corroborate 3
their claims. Accordingly, those officials were under no obligation to “take [the 4
Art Owners] at th eir word [

. ] ” Geneva Br. at 34

. 5
At bottom, nothing about this investigation indicates that it is an arbitrary 6

act or a pretextual attempt to nationalize the Art Owner s’ property . Nor do the 7
facts compel the conclusion that the seizure has extended for an unreasonable 8

amount of time

. A ll the Art Owners offer are “conclusory criticisms of the manner 9
in which [ Geneva and the Swiss Agencies ] ha [ve] conducted [their] investigation

. ” 10

Chettri , 834 F.3d at 58. But, as our precedent makes clear, such criticisms “are 11
insufficient to prove ” that a law enforcement seizure qualifies as a taking in 12

“ violation of international law.” Id. 13

* * * 14
Before moving on, we offer a few additional words about the Art Owners ’ 15
decision to sue in the United States before seeking recourse in Swiss court. See 16

Aboutaam , 2019 WL 4640083, at *5. Whether the expropriation exception 17
incorporate s an exhaustion requirement is the source of some dispute among our 1840 sister circuits. Compa re Federal Republic of Germany v. Philipp , 894 F.3d 406, 414

– 16 1
(D.C. Cir. 2018) (rejecting an exhaustion requirement) , vacated on other grounds , 141 2
S. Ct. 703 (202 1 ) , with Fischer v. Magyar Allamvasutak Zrt. , 777 F.3d 847, 854, 856

– 59 3
(7th Cir. 2015) (de claring exhaustion to be required under international law) , and 4

Abelesz v. Magyar Nemzeti Bank , 692 F.3d 661, 678

– 85 (7th Cir. 2012) (same) ; see also 5
Republic of Austria v. Altmann , 541 U.S. 677, 714 (2004) (Breyer, J. , concurring) 6
(explaining that “a plai ntiff who chooses to litigate in this country in disregard of 7
the postdeprivation remedies [available] in the ‘expropriating’ state may have 8
trouble showing a ‘taking in violation of international law’” (brackets omitted)) ; 9

Cassirer , 616 F.3d at 1034

– 37 (c oncluding that the FSIA does not mandate 10
exhaustion, but leaving open whether courts may consider exhaustion as a 11
prudential factor before accepting jurisdiction over a case against a foreign 12
sovereign)

. B ecause we can resolve this case on other grounds, we do not analyze 13

th is issue. That said, the Art Owners’ suggestion that exhaustion would have be en 14

futile here simply because the Swiss government is on the other side of the “v

. ” 15

borders on the frivolous. Absent a s trong showing to the contrary, we have no 16

reason to question the Swiss judiciary ’s ability to fairly and impartially review the 17

lawfulness of its government’s actions

. 1841 C. Jurisdictional Discovery 1

Because t he purpose of sovereign immunity is to protect foreign nations not 2
only from liability but also from “the expense, intrusiveness, and hassle of 3
litigation , a court must be circumspect in allowing discovery before the plaintiff 4
has established that the court has jurisdiction over a foreign sovereign defendant 5

under the FSIA.” Arch Trading , 839 F.3d at 206 (internal quotation marks omitted)

. 6
In practice, this means that a plaintiff should be granted jurisdictional discovery 7
“only to verify allegations of specific facts crucial to an immunity determination.” 8

I d. at 207 ( internal quotation marks omitted ). A court therefore does not abuse its 9
discretion in denying jurisdictional discovery “if the party seeking discovery 10
cannot articulate a reasonable basis for the court first to assume jurisdiction.” Id. 11

at 206

– 07 ( internal quotation marks omitted ). 12

Here, the Art Owners have identified no specific discovery that could 13
credibly support their claim that this law enforcement seizure constitute s a taking 14
in violation of international law. In light of that fa ct , and given the significant 15
comity concerns at stake, the district court plainly did not abuse its discretion by 16
denying the Art Owners the opportunity to conduct jurisdictional discovery

. See 17
NML Cap

. , 573 U.S at 146 n.6 (acknowledging that district co urt s may 1842 “appropriately consider comity interests and the burden that the discovery might 1
cause to the foreign state” ( internal quotation marks omitted )). 2

IV. Conclusion 3
For the foregoing reasons, we AFFIRM the judgment of the district court. 4