The Art Law Report Providing timely updates and commentary on legal issues in the museum and visual arts communities

Senate Bill 2212, the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Unexpectedly Dies in Committee

Posted in Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, Foreign Sovereign Immunities, Immunity from Seizure Act, Restitution, Senate Bill 2212

Senate Bill 2212, previously passed by the House of Representatives, seemed to be gathering steam as 2012 came to a close.  In November and December bipartisan sponsors were signing on, with no publicly-known opposition as it waited for a Senate Committee on the Judiciary hearing.

Yet the New Year has come and gone—and with it the 112th Congress.  To be considered by the Congress now in session, the bill would have to be reintroduced.  H.R. 4086, the version passed by the full House of Representatives in early 2012, is similarly void.

This is an unsatisfactory outcome for a proposed law that was consistently poorly described and seldom defended by its proponents.  Although S.B. 2212 was a positive step to solve a gap in the law that created the false hope of restitution, it was certainly not perfect, and there were valid, principled objections to the way it was drafted.  Yet now the matter is simply off the table indefinitely, with no known plans for further discussion or debate.

The Foreign Sovereign Immunities Act will remain unaltered for now, meaning that the mere loan of a work of art targeted for restitution into the United States can create commercial activity sufficient to satisfy the FSIA-even if that work is immune from seizure.  The status quo discourages international loans or encourages litigation that cannot obtain restitution, or both. 

 We will be watching the 113th Congress for any related action.