UPDATED > Back Again: H.R. 4292, The Foreign Cultural Exchange Immunity Clarification Act

[UPDATED 3/7/15: The  Foreign Cultural Exchange Immunity Clarification Act (H.R. 889) has been introduced again in 2015, during the 114th session of Congress.]

First adopted by the U.S. House of Representative in 2012 and then left to die in the Senate, the Foreign Cultural Exchange Immunity Clarification Act (FCEICA) is back, having been reintroduced by the three original sponsors along with a new co-sponsor.

CHL supported the bill the last time it made its way to Capitol Hill and recommended modifications that would help to bolster the State Department's review of IFSA requests. CHL once again supports the legislation.

Judiciary Committee member Rep. Steve Chabot (R-OH) introduced H.R. 4292 on March 25 along with co-sponsors Rep. John Conyers (D-MI), Rep. Bob Goodlatte (R-VA), and Rep. Steve Cohen (D-TX). Their purpose is to amend the Foreign Sovereign Immunities Act (FSIA) in order to encourage foreign lending of art to the U.S.

The bill proposes that artwork of cultural significance imported for purposes of temporary exhibition by a cultural institution, and which is in the national interest, will not be considered "commercial activity." That is important because federal law generally protects foreign states from lawsuits except in situations involving "commercial activity."

The concept of "commercial activity" was expanded by the courts in the 2005 case of Malewicz v. City of Amsterdam. That case involved the heirs of Kazimir Malevich who sued Amsterdam in Washington, DC to either recover the artworks that the city’s Stedelijk Museum loaned to American museums or, in the alternative, to receive $150 million in damages. The heirs claimed that the foreign museum unlawfully obtained the paintings.The City of Amsterdam, meanwhile, argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from the lawsuit.

IFSA, formally called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), protects foreign artwork on temporary loan in America from judicial seizure. It does so by preventing a civil litigant in a U.S. court from claiming the art itself to satisfy a judgment in a lawsuit, for example.

The Malewicz court ruled that Amsterdam had engaged in “commercial activity” under the FSIA. So while IFSA may have protected the actual artwork from seizure, the FSIA did not protect the City of Amsterdam from a damages award, said the court. The FCEICA would correct this contradictory result.

The latest version reintroduces the so-called "Nazi exception," which the bill now words in this fashion:

Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 

Covered governments are defined as Germany, its allies, Germany's military occupied territories, and cooperating regimes during the period of the Second World War.

The bill has been referred to the Judiciary Committee.

UPDATE 4/3/13
The full committee of the Judiciary quickly held a markup of the legislation, without a hearing, and yesterday approved the bill by voice vote. The measure will now be sent to the full House for consideration.

The Judiciary Committee declared, "By making a minor change to the Foreign Sovereign Immunities Act, this legislation strengthens the ability of U.S. museums and schools to borrow foreign government-owned artwork and cultural artifacts."

A bipartisan statement issued by the bill's Republican and Democratic sponsors announced:

The United States has long recognized the importance of a cultural exchange of ideas through artwork loaned from other countries. We are proud to support this strongly bipartisan legislation that increases Americans’ access to beautiful artwork and artifacts from around the world, fosters knowledge and appreciation of the arts and other cultures, and encourages learning, history and creativity.

UPDATE 5/9/14
The full House passed the bill on May 6 by a vote of 388 to 4.  The bill was sent to the Senate and referred to the Judiciary Committee on May 7.

Photo credit: Micahel Slonecker

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com