A new lawsuit seeking to seize a painting by Van Gogh currently at the Detroit Institute of Arts for the show “Van Gogh in America,” a painting which the plaintiff alleges was unlawfully taken has brought back into focus the law in the United States that address immunity from seizure. That is to say, what are the circumstances under which a work of art loaned on exhibition—even if stolen property—might nonetheless have to be returned to the lender? The results, and the criteria, are often surprising to the casual viewer but are important to review for museums, collectors, and anyone involved in art loans.
Topics: Malevich, Schiele, 22 U.S.C. § 2459, Pinacoteca di Brera, Museum of Modern Art, Van Gogh, IFSA, Leopold Collection, Portrait of Wally, Immunity from Seizure Act, State Department, Detroit Institute of Art, Brokerarte Capital Partners LLC, The Reading Lady, Liseuse De Romans, George Caram Steeh, Gustavo Soter, The Novel Reader, replevin
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.
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
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).
Topics: Legislation, Guelph Treasure, 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
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).
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
There has been additional commentary in the last week on the Foreign Cultural Exchange Jurisdictional Clarification Act, including this piece at Hyperallergic in which I’m quoted. The piece reminds me to revisit a confusing subject latent in the whole discussion: immunity from suit versus immunity from seizure. Despite what one frequently reads, the current bill would have no effect at all on immunity from seizure, which seems to be most people’s concern. It would affect only a small category of exceptions for immunity from suit, that is, who can be sued, not what can be loaned into the United States.
Topics: Foreign Cultural Exchange Jurisdictional Clarifica, Amsterdam, Thyssen-Bornemisza Collection, U.S. Federal Republic of Germany, Foreign Sovereign Immunities Act, FSIA, Restitution, Kingdom of Spain, IFSA, Foreign Sovereign Immunities, Immunity from Seizure Act, Museums, 28 U.S.C. § 1605, Foreign Cultural Exchange Jurisdictional Immunity, State Department
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.
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
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.
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
A quirk of parliamentary procedure is that any bill in Congress exists only for so long as that particular Congress is in session. This week, the 114th Congress took its seats, meaning that any bill not passed by both the House of Representatives and the Senate, and signed by the President, is a dead letter. This is the fate of many, many bills—indeed most.
Topics: Legislation, Resale Royalties, Chuck Close, Moral Rights, Nazi-looted art, Foreign Sovereign Immunities Act, 28 U.S. § 1605, Art Law Day, 114th Congress, 22 U.S.C. § 2459, City of Amsterdam, Rep. Jerrold Nadler (D-NY), FSIA, expropriation exception”, droit de suite, IFSA, Foreign Sovereign Immunities, Senate, House of Representatives, Immunity from Seizure Act, President, Foreign Cultural Exchange Jurisdictional Immunity
In the course of our work here, I like to call out books and articles that I feel are worthy of praise, usually the in the course of a particular post or issue. After a too-long stay on the corner of my desk awaiting time to read it, I finally finished a book published last year that should be an essential for any collector, or lawyer dealing with clients across borders. Entitled The Art Collecting Legal Handbook (Thomson Reuters), the book is edited by Bruno Boesch and Massimo Sterpi, both notable European practitioners in art and cultural affairs law, at Froriep in London and Studio Legale Jacobacci & Associati in Rome, respectively.
Topics: Legislation, the Middle East, looted property, Forgery, Auctions, VAT, Studio Legale Jacobacci & Associati, authenticity, London, Sam Keller, Julien Anfruns, droite de suite, Froriep, Moral Rights, Europe, North America, Holocaust claims, California, Fondation Beyeler, Howard Kennedy FSI, Thomson Reuters, Asia, Rome, Restitution, International Council of Museums, Massimo Sterpi, United States, World War II, Sabina von Arx, 1970 UNESCO Convention, Morgan Stanley, Art Fairs, Publications, Litigation, due diligence, Immunity from Seizure Act, Museums, Bruno Boesch, 1995 UNIDROIT Convention on Stolen or Illegally Ex, Daniel McClean, New York
The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (HR 4292) passed the House of Representatives yesterday, 388 to 4. Voting against were Reid Ribble (R, WI), Mark Sanford (R, SC), Marlin Stuzman (R, IN), and Justin Amash (R, MI). As discussed here previously, the bill would amend the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605 (FSIA) to clarify when a cultural object loaned with immunity from seizure pursuant to the Immunity from Seizure Act (IFSA) can also constitute the “commercial activity” element necessary to overcome sovereign immunity and bring a suit in U.S. federal court. Invocation of the FSIA has, since Altmann v. Republic of Austria up through the cases pending against Hungary and the Thyssen-Bornemisza Collection pending today, become the go-to strategy to seek federal jurisdiction over World War II/Nazi-looted art restitution cases in particular.
Topics: Reid Ribble, Mark Sanford, Thyssen-Bornemisza Collection, Art & Cultural Heritage Law Committee of the A, Marlin Stuzman, Nazi-looted art, Foreign Sovereign Immunities Act, Malevicz v. City of Amsterdam, 22 U.S.C. § 2459, Justin Amash, FSIA, Restitution, HR 4292, World War II, IFSA, Foreign Sovereign Immunities, Altmann v. Republic of Austria, Immunity from Seizure Act, 28 U.S.C. § 1605, Foreign Cultural Exchange Jurisdictional Immunity