Pierre Konowaloff is the sole heir to the estate of his great-grandfather, Ivan Morozov, a Russian national whose modern-art collection—which included a Cézanne painting known as Madam Cézanne in the Conservatory (the “Painting”)—ranked among Europe’s finest before World War I.  On December 19, 1918, the Bolsheviks decreed that Morozov’s art collection, including the Painting, was “state property,” and therefore it confiscated all Morozov’s artwork. The Russian government subsequently sold the Painting to Stephen C. Clark, a trustee of the Metropolitan Museum of Art, who, upon his death, bequeathed the Painting to the Met.  After Konowaloff became the official heir to the Morozov collection he demanded that the Met return it to him.  They refused, prompting a lawsuit.

Citing the “act of state doctrine”—a legal doctrine precluding courts in the United States from questioning the validity of an act of a foreign state—the district court dismissed the lawsuit on the face of the complaint.  Konowaloff v. Metro. Museum of Art, 10 Civ. 9126, 2011 U.S. Dist. LEXIS 107262 (S.D.N.Y. Sept. 22, 2011).  The court held that because the United States eventually recognized the Soviet government in 1933, and such recognition applies retroactively and “validates all the actions and conduct of the government so recognized from the commencement of its existence,” the court would not second-guess the act of expropriating the Painting from Morozov.  Id. at *28-29 (citations omitted).  In upholding the district court’s decision, the Second Circuit reaffirmed the retroactive application of the act-of-state doctrine, and held that “the lawfulness of the Soviet government’s taking of the Painting is precisely what the act of state doctrine bars the United States courts from determining.”  Konowaloff v. Metro. Museum of Art, 11-4338-cv, 2012 U.S. App. LEXIS 25836, at *19 (2d Cir. Dec. 18, 2012).

The act-of-state doctrine and its underlying rationale are well settled, as the Second Circuit recently confirmed.  That United States courts may not question the acts of a foreign state, however, does not mean that others, including the recipient of the confiscated work, cannot question those same acts.  At the very least it may be appropriate under the circumstances to include in the Painting’s provenance the fact that the Painting had been confiscated from Morozov, which at present the Met does not, listing the transfer of title simply as:  “Ivan Abramovich Morozov, Moscow (1911–18)” to “Museum of Modern Western Art, Moscow.”