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Jurisdictional Law Hailed as Impetus to End Russian Art Loan Embargo that is Actually Unaffected by that Law

Posted by Nicholas O'Donnell on January 6, 2017 at 12:39 PM

With reports that Russia is considering abandoning the nearly five year old embargo on loans of cultural artifacts into the United States, the cited connection between that willingness and the recent passage of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) bears closer scrutiny that it has received to date.  If the unnecessary embargo were to come to an end it would be welcome news, but Russia’s claim that the new law is the reason is hard to square with the history of the issue.  It cannot be stated emphatically enough that the new law makes Russian art loans no more or less safe from seizure than they were before, because the law governing seizure of cultural objects (the Immunity from Seizure Act, or IFSA) has not changed.  Russia’s penchant for framing the question as something for which it needed protection is thus frustrating because it is simply incorrect.  The Russian loan embargo has been political theater from the time in began in 2012 in retaliation after Russian defendants lost a key litigation in Washington, DC, and the new law was passed in response to events that had nothing to do with Russia. 

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Topics: Alfred Flechtheim, Russia, 22 U.S.C. § 2259, Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(3), FSIA, IFSA, Immunity from Seizure Act, Chabad, Welfenschatz, Malevich v. City of Amsterdam, Foreign Cultural Exchange Jurisdictional

Looted Art Legislation—HEAR Act and Foreign Cultural Exchange Jurisdictional Clarification Act Set to Become Law

Posted by Nicholas O'Donnell on December 12, 2016 at 2:40 PM

Congress has passed and President Obama is expected to sign two bills related to looted art and the availability of U.S. courts to hear disputes over them.  The Holocaust Expropriated Art Recovery (HEAR) Act of 2016 and the Foreign Cultural Exchange Jurisdictional Clarification Act (FCEJCA, for lack of a handy acronym) were both passed without objection both the House of Representatives on December 10, 2016, and are expected to be signed by President Obama shortly.  The HEAR Act is a major shift in the law of Nazi-looted art claims specifically, while the FCEJCA is controversial but unlikely to have a broad impact one way or another.  It is perhaps most remarkable that in an era of unique partisanship and political polarization, members of Congress from both parties and the President agreed on anything, let alone unanimously (sponsors include such unusual allies as Ted Cruz, Richard Blumenthal, John Cornyn, and Charles Schumer).

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Topics: Legislation, Alfred Flechtheim, Russia, Nazi-looted art, Foreign Sovereign Immunities Act, 22 U.S.C. § 2459, FSIA, expropriation exception”, NS Raubkunst, Restitution, World War II, State Hermitage Museum, Charles Schumer, Immunity from Seizure Act, Chabad, 28 U.S.C. § 1605, John Cornyn, Welfenschatz, Holocaust Expropriated Art Recovery Act, Richard Blumenthal, Ted Cruz, Foreign Cultural Exchange Jurisdictional, Mikhail Piotrovsky, Politico, Anita Difanis

Museum Denied Exhibition Loan of Byzantine Ivory from British Museum That Should Have Been Permitted

Posted by Nicholas O'Donnell on July 8, 2015 at 8:08 AM

The Museum of Russian Icons in Clinton, Massachusetts, has apparently been told by the U.S. Fish & Wildlife Service that it will not be receiving the anticipated loan of a Byzantine ivory relief of the Death of the Virgin for the exhibition “Saints and Dragons: Icons from Byzantium to Russia.” This no doubt springs from the new U.S. policy on ivory, but even under that stringent approach, the temporary import for a cultural exhibition should have been permitted. The museum may have recourse, but it has apparently made a backup plan for another object to round out the show. The case still serves as a useful framework to consider the new legal reality. This is also a real shame, because it is the second time in the last few years that the museum (which is an absolute gem, founded privately in 2006 by art collector and industrialist Gordon B. Lankton) has been affected by international contretemps (the first relating to the Russian exhibition loan embargo arising out of the Chabad case).

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Topics: relief, Massachusetts, Saints and Dragons: Icons from Byzantium to Russia, Byzantine, Death of the Virgin, U.S. Fish & Wildlife Service, ivory, Gordon B. Lankton, 22 U.S.C. § 2459, Museum of Russian Icons, Convention on International Trade in Endangered Sp, Clinton, commercial trade, National Strategy for Combating Wildlife Trafficki, Immunity from Seizure Act, Customs, Chabad

Foreign Cultural Exchange Jurisdictional Clarification Act Returns

Posted by Nicholas O'Donnell on June 10, 2015 at 12:47 PM

The U.S. House of Representatives passed yesterday H.R. 889, the Foreign Cultural Exchange Jurisdictional Clarification Act for the third time in four years. Identical bills passed the house in early 2012 and again last year but failed to win passage in the Senate and signature by the President, thus expiring without becoming a law (and remaining just a bill sitting on Capitol Hill). Will it become law? Probably not, and after a little reflection and evolution, that’s probably for the best.

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Topics: U.S. House of Representatives, Foreign Cultural Exchange Jurisdictional Clarifica, Second Hickenlooper Amendment, Russia, Herrick Feinstein, Nazi-looted art, Konowaloff, Stiftung Preussischer Kulturbesitz, Association of Art Museum Directors, Restitution, World War II, Foreign Sovereign Immunities, act of state doctrine, Senate, Altmann v. Republic of Austria, Capitol Hill, Immunity from Seizure Act, Chabad, Federal Republic of Germany, 28 U.S.C. § 1605, Welfenschatz, Foreign Cultural Exchange Jurisdictional Immunity, Mari-Claudia Jiménez, Cuba

Immunity from Seizure in Focus—Loans from Cuba for Exhibitions on Hold

Posted by Nicholas O'Donnell on March 5, 2015 at 6:39 AM

A recent story in The Art Newspaper spotlights a number of lingering issues related to stolen art, the power of U.S. courts to seize property to satisfy liability, and the role of the Immunity from Seizure Act, 22 U.S.C. § 2459 (IFSA). As we discussed recently, the prospect of a material change in U.S.-Cuba relations, which as a commercial matter haven’t existed for more than 50 years, has broad implications for the art market. Just as importantly, there are many, many unanswered questions about the fate of property in Cuba that changed hands or was nationalized as part of the Cuban Revolution in the late 1950s and onward. Simply put, there are thousands of claims worth billions of dollars for all sorts of property that exiles left behind or had taken from them. While it is still a long way off, one impact of potentially normalized relations is the prospect of sorting through those claims.

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Topics: Legislation, Malevich, Atlanta, Boston College Law School, The Art Newspaper, Immunity from Seizure, Foreign Sovereign Immunities Act, Wifredo Lam: Imagining New Worlds, 22 U.S.C. § 2459, City of Amsterdam, High Museum, McMullen Museum at Boston College, IFSA, Foreign Sovereign Immunities, Portrait of Wally, Immunity from Seizure Act, Museums, Chabad, Foreign Cultural Exchange Jurisdictional Immunity, State Department, Cuba

Argentina, Bond Payment Default, Contempt, and Art Restitution Claims: An Unlikely But Important Mix

Posted by Nicholas O'Donnell on September 30, 2014 at 7:34 AM

When Judge Thomas P. Griesa of the U.S. District Court for the Southern District of New York (Manhattan) held Argentina in contempt on Friday for the South American nation’s default on bond payments, few people likely perked up with attention about the possible implication for art restitution. But with a bit of indulgence, the connection is more important than it might first seem.

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Topics: Banco de la Nación, Library, Judge Thomas P. Griesa, Bank of New York Mellon, Argentina, Foreign Sovereign Immunities Act, Rebbe, Southern District of New York, Russian Federation, FSIA, Lubavitch, Restitution, A bond, Foreign Sovereign Immunities, default, Chabad, Paul E. Singer, Art Law Report

Chabad Asks for Interim Judgment of $14.75 Million Against Russia for Defiance of Order to Return Rebbe's Library

Posted by Nicholas O'Donnell on January 29, 2014 at 12:18 PM

It has been a year since the U.S. District Court for the District of Columbia instituted a fine of $50,000 per day against the Russian Federation, the Russian Ministry of Culture and Mass Communications, the Russian State Library, and the Russian State Military Archive until they comply with a 2010 judgment to return the library of Menachem Schneerson, the late charismatic leader of the worldwide Chabad Lubavitch movement, to the movement in Brooklyn, New York. And in that year, the Russian defendants have neither obeyed the original judgment, nor paid the fine. The plaintiffs have now returned to court asking for an interim money judgment for the cumulative amount—$14,750,000—a judgment that could in theory be executed on other assets.

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Topics: Russian art embargo, Russian State Military Archive, Germany, Rebbe, 28 U.S.C. § 1603, 1939, the Russian Ministry of Culture and Mass Communica, Russian Federation, the Russian State Library, FSIA, Agudas Chasei Chabad, Soviet Union, Chabad

President Putin Vows to Keep Chabad Library in Russia

Posted by Nicholas O'Donnell on February 20, 2013 at 4:51 AM

Backing off some of the more belligerent comments made recently by the Foreign Ministry, Russian President Vladimir Putin has nonetheless signalled that Russia has no plans to return the Chabad library to comply with a 2010 judgment or the more recent sanctions order. Both Reuters and the Art Newspaper reported that Putin proposed to store the Schneerson library in the newly built Jewish Museum in Moscow. Putin stated "The Schneerson Collection belongs to Russia. . . .If we now open a Pandora's box and start satisfying similar requests, there will be no end to these claims. Maybe one day we will be able to do this, but now we are absolutely not ready for this. This is impossible," Putin said." That statement simply begs the question of what the Pandora's box is that Putin fears. Russia has, for example, refused for years even to discuss cultural artifacts taken to the Soviet Union as the German army retreated in World War II. The more conciliatory tone is a marked change from recent threats to try to find the United States in default in retalation for the recent sanctions order, although it does little to address the fundamental dispute.

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Topics: Moscow Jewish Museum, Restitution, Schneerson library, Foreign Sovereign Immunities, Vladimir Putin, Chabad

Russia Threatens Lawsuit Against U.S. Library of Congress in Further Retaliation for Chabad Sanctions Order

Posted by Nicholas O'Donnell on February 12, 2013 at 8:44 AM

In a story that gets more unusual with every new development, the Russian Foreign Ministry has reportedly recommended filing a lawsuit, in Russia, against the United States Library of Congress in response to last month’s contempt sanctions order by the U.S. District Court of the District of Columbia arising out of Russia’s refusal to obey a judgment to return the Chabad Lubavitch library of Menachem Schneerson.

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Topics: Russian Times, Russian Foreign Ministry, sanctions, The Art Newspaper, Library of Congress, 22 U.S.C. § 2459, Foreign Sovereign Immunities, Litigation, Immunity from Seizure Act, Chabad, Sergey Lavrov

Russia Swiftly Lashes Out At Sanctions Concerning Schneerson/Chabad Library, U.S. Government Still Silent

Posted by Nicholas O'Donnell on January 17, 2013 at 8:53 AM

Despite refusing to participate in a lawsuit for nearly three years since a judgment that ordered the return to the Chabad Lubavitch movement in Brooklyn of the late Rebbe Menachem Schneerson’s library, the Russian Federation swiftly spoke up when news came of the U.S. District Court for the District of Columbia’s order yesterday sanctioning and fining the defendants $50,000 per day until they comply with the 2010 judgment. The Washington Post reports today that the U.S. government has declined to comment.

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Topics: cultural property, Menachem Schneerson, Russian Foreign Ministry, sanctions, Restitution, World War II, Foreign Sovereign Immunities, Chabad

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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