Restitution of Property (Republic of Italy) Case

CourtCourt of Appeal of Hamm (Germany)
Date14 s 1951
Docket NumberCase No. 52
German Federal Republic, Court of Appeal of Hamm.
Case No. 52
Restitution of Property (Republic of Italy) Case.

Jurisdiction — Exemption of Foreign States from Territorial Jurisdiction — Foreign State as Owner of Immovable Property within Jurisdiction — Action in rem — Whether Foreign State Entitled to Claim Exemption.

The Facts.—A law enacted in Germany after the end of hostilities in the Second World War provided, as far as here material, that the former owners of identifiable property who had sold such property between the years 1933 and 1945 because certain discriminatory legislation enacted in Germany was such asto make their continued ownership of property in that country virtually impossible, were entitled to claim the return thereof from those who had acquired it during that period. Between 1933 and 1945 the Government of Italy, respondents herein, had purchased certain real property from a person who was subject to the discriminatory legislation here referred to, and that person, the appellant herein, accordingly brought an action against the Republic of Italy claiming the return of his property. On behalf of the Republic of Italy it was contended that as a sovereign State it was not subject to the jurisdiction of the German courts. This contention was upheld by the lower Court, and the appellant now appealed.

Held: that this was an action in rem concerning real property situate in Germany, and that the general rule which conferred upon foreign States exemption from the jurisdiction of the German courts did not apply; that the Republic of Italy, as the owner of such property, was accordingly subject to the jurisdiction of the German courts, and that the case must be sent back to the lower Court in order there to be determined on the merits. The Court said:

“We agree with the general remarks of the lower Court concerning the exercise of jurisdiction over foreign States. Private international law recognises the rule, which admits of exceptions, that according to international law a State may not be brought before the courts of another State. Private international law has increasingly admitted exceptions to this rule, namely, in cases in which a foreign State enters into private contractual relations with other States or with nationals of the latter and no longer exercises its activities as the holder of sovereign rights, but in the field of purely private and commercial intercourse. The Supreme Court of the Reich (Reichsgericht) has held that the...

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