It’s been a few weeks since the House passed the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (H.R. 4086) and sent it on to the Senate for consideration as S.B. 2212. It has bipartisan sponsorship there (Dianne Feinstein and Orrin Hatch), but no word yet on when it will be put to a vote.
As a reminder, the law would exempt the defendant’s commercial activity in the United States from analysis as a prerequisite (among others) to jurisdiction under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1603 (FSIA) when that commercial activity related solely to lending the cultural object at issue, if that object had already been granted immunity from seizure under the Immunity from Seizure Act, 22 U.S.C. § 2459 (IFSA).
That has provided enough time for commentary to take shape about the wisdom of the law. Somewhat surprisingly, there has been a great deal of negative analysis of the law as it relates to restitution claims and exhibitions. Others have been similarly critical, arguing that the law threatens restitution claims entirely. Many have debated the effect that the law would have on the Russian loan embargo.
The view here is that the effect of the law would actually be more limited. First, even if it had been in place five years, ago, it would have had no impact on the Chabad/Russian dispute over the Schneerson library. That set of books has never been in the United States, so removing its presence here as a basis to exercise jurisdiction under the FSIA wouldn’t change the result. Russia’s response to an adverse ruling—i.e. its refusal to participate further at all—has far more to do with the current embargo. Whether or not the Chabad dispute and the resulting standoff is the reason for the proposed law doesn’t really matter.
Second, the ultimate goal of a restitution claim has to be considered. Consider for the sake of discussion that a painting had ownership issues in its country of origin (keep out Nazi claims, they are exempted from the proposed law’s reach). The object is lent to the U.S., but granted immunity from seizure under IFSA. Under the law as it is now, the object cannot be seized, but if FSIA’s other requirements are met, the act of the loan can allow the plaintiff to invoke U.S. federal court jurisdiction. But to what end? Even if the plaintiff wins, it cannot seize the object that is immune from seizure to which it has secured title. Moral victories have real value, but winning a multi-year litigation that cannot result in the desired outcome does not seem like that much to give up. The proposed law simply spares both parties the exercise.
It is also open to debate how broadly the proposed change will even apply. That is to say, how many foreign nations have no commercial activity in the United States except the loan of disputed artworks? Of those, how many would loan a work without getting IFSA immunity? Can the resulting number really be that high? Are there any? Since the Portrait of Wally case (which did not have IFSA immunity), immunity from seizure has been standard practice, and no sensible foreign owner is going to lend without it.
In the more (in)famous cases of Nazi looted art, the law would have no effect at all. So a painting commandeered by Hermann Göring, now in the hands of a new owner that has no contact with the U.S. other than loaning the painting could still be sued using FSIA (just as it could today).
The oft-cited recent case in which of the disputed Christ Carrying the Cross Dragged by a Rogue by Girolamo Romano really has nothing to do with FSIA. That order was issued under customs law (on which the proposed law has no effect) based on the allegation that the very act of import violated 19 U.S.C. § 1595a and other laws (addressed here before). Moreover, there was no indication of whether the painting had IFSA immunity. The United States obtained a default against the Italian lenders for their failure to make a timely claim, and settled with the claimed heirs in which the U.S. agreed to give them the painting. The court did not, contrary to the tenor of much coverage of the result, rule on the merits of the restitution claim.
Putting aside Russia’s embargo, which is impossible to defend, the law will encourage international exhibition loans. If the loan of a painting was not going to result in its restitution anyway, isn’t encouraging those international exhibitions a good thing?