Perhaps lost in the coverage about Senate Bill 2212 (the Art Law Report no less than anyone else) to amend the Foreign Sovereign Immunities Act to preclude claims against defendants whose “commercial activity” is limited to the loan of artwork whose ownership is in dispute, is the case made by the sponsors of the bill themselves, Senators Dianne Feinstein (D, CA) and Orrin Hatch (R, UT).
The Congressional Record, via the Library of Congress, has the text of the co-sponsors’ remarks offering the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act. They are refreshingly apolitical, explain well what the bill is for, and just as importantly what it is not for. Critics and supporters alike should read them.
Senator Feinstein observed (emphasis added):
"For decades, American law has offered legal protection for these exhibitions. Passed in 1965, a law called the Immunity from Seizure Act, 22 U.S.C. 2459, is designed to provide the legal certainty necessary for American museums to organize such exhibitions with their foreign counterparts.
. . .
"Unfortunately, this important law has been undermined by a decision of the U.S District Court for the District of Columbia in a case called Malewicz v. City of Amsterdam.
. . .
"Even though the State Department's approval was sought and received for the temporary loan, the court held that the City of Amsterdam's temporary loan nevertheless subjected the City to Federal court jurisdiction in a lawsuit over the work of art.
. . .
"This bill is simple. It relies on the State Department's approval process. If the State Department approves a loan of a foreign art work--essentially immunizing the work from judicial seizure under existing law--then the foreign state's activities associated with the work's exhibition cannot be used to assert jurisdiction over the foreign state under the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3).
"This narrow approach does only what is necessary to fix the problem created by the Malewicz decision--nothing more, nothing less.
"It is important to note that this bill would not apply if the foreign state does not seek or receive the State Department's approval. The State Department requires detailed certifications and independent investigations about an art work's provenance before it grants approval. The bill also expressly would not apply to any work taken in Europe by the Nazis or their collaborators. . . ."
Senator Hatch noted further (emphasis added):
"A major exhibition can take years to develop and potential overseas lenders must be assured that their art will be legally protected while it is in the United States. Many exhibitions simply will not be possible without that assurance. We have had laws in place for decades that did just that, and they worked exactly the way they were supposed to. Specifically, the Protection from Seizure Act guaranteed that once the State Department reviewed and certified an exhibition as being in the national interest, the art was immune from legal judgments or court orders while in this country.
. . .
"The dilemma here is easy to see. These statutes are not supposed to be in conflict. Bringing art here under the protection of one statute is not supposed to create jurisdiction for a lawsuit against the lender under another statute.
"The solution is also easy to see. The bill we introduce today is very short and very simple. It clarifies that the presence in this country of art under the Protection from Seizure Act does not create jurisdiction for a lawsuit under the Foreign Sovereign Immunities Act. It simply returns these two statutes to the harmony they were intended to have all along and to lift the cloud of doubt that has hung over the art exhibition process for the last several years.
. . .
"This is a problem that is easy to fix. It is not a partisan or an ideological issue. It is not a spending program. It involves neither regulations nor taxes. Each of our States has institutions that can benefit from this clarification. As my colleagues will see, we did put a caveat in the bill so that it will not apply to the ongoing efforts to identify and recover art and cultural objects seized by the Nazis during the World War II era. . . ."
