[Congressional Record (Bound Edition), Volume 158 (2012), Part 3]
[House]
[Pages 3613-3615]
[From the U.S. Government Publishing Office, www.gpo.gov]




  FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT

  Mr. SMITH of Texas. Madam Speaker, I move to suspend the rules and 
pass the bill (H.R. 4086) to amend chapter 97 of title 28, United 
States Code, to clarify the exception to foreign sovereign immunity set 
forth in section 1605(a)(3) of such title, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 4086

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Foreign Cultural Exchange 
     Jurisdictional Immunity Clarification Act''.

     SEC. 2. CLARIFICATION OF JURISDICTIONAL IMMUNITY OF FOREIGN 
                   STATES.

       (a) In General.--Section 1605 of title 28, United States 
     Code, is amended by adding at the end the following:
       ``(h) Jurisdictional Immunity for Certain Art Exhibition 
     Activities.--
       ``(1) In general.--If--
       ``(A) a work is imported into the United States from any 
     foreign country pursuant to an agreement that provides for 
     the temporary exhibition or display of such work entered into 
     between a foreign state that is the owner or custodian of 
     such work and the United States or one or more cultural or 
     educational institutions within the United States,
       ``(B) the President, or the President's designee, has 
     determined, in accordance with Public Law 89-259 (22 U.S.C. 
     2459), that such work is of cultural significance and the 
     temporary exhibition or display of such work is in the 
     national interest;, and
       ``(C) the notice thereof has been published in accordance 
     with subsection (a) of Public Law 89-259,
     any activity in the United States of such foreign state, or 
     of any carrier, that is associated with the temporary 
     exhibition or display of such work shall not be considered to 
     be commercial activity by such foreign state for purposes of 
     subsection (a)(3) of this section.
       ``(2) Nazi-era claims.--Paragraph (1) shall not apply in 
     any case in which--
       ``(A) the action is based upon a claim that the work was 
     taken in Europe in violation of international law by a 
     covered government during the covered period;
       ``(B) the court determines that the activity associated 
     with the exhibition or display is commercial activity, as 
     that term is defined in section 1603(d) of this title; and
       ``(C) such determination is necessary for the court to 
     exercise jurisdiction over the foreign state under subsection 
     (a)(3) of this section.
       ``(3) Definitions.--For purposes of this subsection--
       ``(A) the term `work' means a work of art or other object 
     of cultural significance;
       ``(B) the term `covered government' means--
       ``(i) the Nazi government of Germany;
       ``(ii) any government in any area occupied by the military 
     forces of the Nazi government of Germany;
       ``(iii) any government established with the assistance or 
     cooperation of the Nazi government of Germany; and
       ``(iv) any government that was an ally of the Nazi 
     government of Germany during the covered period; and
       ``(C) the term `covered period' means the period beginning 
     on January 30, 1933, and ending on May 8, 1945.''.
       (b) Effective Date.--The amendment made by this section 
     shall apply to any civil action commenced on or after the 
     date of the enactment of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Texas (Mr. Smith) and the gentleman from California (Mr. Berman) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Texas.


                             General Leave

  Mr. SMITH of Texas. Madam Speaker, I ask unanimous consent that all 
Members may have 5 legislative days within which to revise and extend 
their remarks and include extraneous materials on H.R. 4086 currently 
under consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Texas?
  There was no objection.
  Mr. SMITH of Texas. Madam Speaker, I yield myself such time as I may 
consume.
  I want to thank the gentleman from Ohio (Mr. Chabot), a leader on the 
Judiciary Committee, for introducing this legislation. I also want to 
thank Mr. Conyers and Mr. Cohen for their support as well.
  This bill preserves the ability of U.S. museums and educational 
institutions to continue to borrow foreign government-owned artwork and 
artifacts for temporary exhibition or display. The United States has 
long recognized the importance of encouraging a cultural exchange of 
ideas through exhibitions of artwork loaned from abroad. Cultural 
exchanges produce substantial benefits to the educational and cultural 
development of all Americans. The future success of these exchanges 
depends on foreign lenders having confidence that loaning artwork to 
U.S. institutions will not open them up to lawsuits in U.S. courts.
  For 40 years, the Immunity from Seizure Act provided foreign 
government lenders with this confidence. However, rulings in several 
recent Federal cases have caused that confidence to unravel. In these 
decisions, the courts have determined that the Immunity from Seizure 
Act does not preempt the Foreign Sovereign Immunities Act, which 
provides U.S. courts with jurisdiction in cases against foreign 
countries.
  The effect has been to open foreign governments up to the 
jurisdiction of U.S. courts simply because they loaned artwork to an 
American museum or educational institution. This has seriously 
threatened the ability of U.S. institutions to borrow foreign 
government-owned artwork. It has also resulted in cultural exchanges 
being curtailed as foreign government lenders have become hesitant to 
permit their artwork to travel to the United States.

[[Page 3614]]

  The bill addresses this situation. It provides that if artwork is 
granted immunity by the State Department under the Immunity from 
Seizure Act, then the loan of that artwork cannot subject a foreign 
government to the jurisdiction of U.S. courts under the Foreign 
Sovereign Immunities Act.
  This is very narrow legislation. It only applies to one of the many 
grounds of jurisdiction under the Foreign Sovereign Immunities Act. It 
requires the State Department to grant the artwork immunity under the 
Immunity from Seizure Act before the provisions of the bill apply. And 
in order to preserve the claims of victims of the Nazi government and 
its allies during World War II, the bill has an exception for claims 
brought by these victims.
  If we want to encourage foreign governments to continue to lend 
artwork to American museums and educational institutions, we must enact 
this legislation. Without the protections this bill provides, rather 
than lending artwork to U.S. institutions, foreign governments will 
simply deny American loan requests. So I urge my colleagues to support 
this bill.
  Madam Speaker, at this time I yield 2 minutes to the gentleman from 
Ohio (Mr. Chabot), who is the author of this legislation and an active 
member of the Judiciary Committee.
  Mr. CHABOT. I would like to thank my colleague, the distinguished 
chairman of the Judiciary Committee (Mr. Smith of Texas) for yielding 
the time. He explained it much better than I can, but I'll take a stab 
at it myself.
  H.R. 4086 is really a straightforward bill which would better clarify 
the relationship between the Immunity from Seizure Act and the Foreign 
Sovereign Immunities Act. Since 1965, the Immunity from Seizure Act has 
provided the executive branch with authority to grant foreign artwork 
and other objects of cultural significance immunity from seizure by 
U.S. courts. The purpose of this was to encourage loaning and sharing 
exhibitions between U.S. and foreign museums.
  However, there is now a conflict between the Immunity from Seizure 
Act and the Foreign Sovereign Immunities Act that has interrupted this 
friendly exchange. Essentially, a provision of the Foreign Sovereign 
Immunities Act allows U.S. courts to have jurisdiction over foreign 
governments when their artwork is temporarily imported into the U.S., 
putting foreign artwork and artifacts at risk of seizure.

                              {time}  1710

  Unfortunately, this has led, in many instances, to foreign 
governments declining to import into our country artwork and cultural 
objects for temporary exhibitions. In order to maintain the exchange of 
government-owned artwork and artifacts, Congress should clarify the 
relationship between these two acts in question.
  This bill would do just that, ensuring that American museums like the 
Cincinnati Museum Center and the Cincinnati Art Museum, two in my 
district, can continue to enjoy international artwork and cultural 
artifacts. Enacting this legislation will remove a major obstacle to 
foreign loans and exchanges to American museums.
  I urge my colleagues to support H.R. 4086, and I would also thank the 
gentleman from California (Mr. Berman) and the gentleman from Michigan 
(Mr. Conyers) for their leadership and their support in this effort.
  Mr. SMITH of Texas. Madam Speaker, we have no other speakers on this 
side, and I yield back the balance of my time.
  Mr. BERMAN. Madam Speaker, I rise in strong support of the bill, and 
I yield myself such time as I may consume.
  Madam Speaker, this bill arises from a tension between a 1963 statute 
providing foreign art collectors immunity from seizure and the Foreign 
Sovereign Immunities Act. It specifically stems from a 2007 court 
decision that broadened the expropriation exemption under the FSIA and 
allowed for suits on artwork already immunized under the 1963 law. The 
Los Angeles County Museum of Art and other museums have made clear to 
me the chilling effect of that decision on artistic exchanges.
  This bill resolves the inconsistency between the Foreign Sovereign 
Immunities Act and the 1963 statute and protects critical cultural 
exchanges. Specifically, the bill would clarify that foreign states are 
immune from lawsuits that seek damages for artwork that may already be 
immune from seizure pursuant to a Presidential determination.
  I support this bill for several reasons:
  First, cultural and artistic exchanges are a powerful form of 
democracy that foster mutual understanding, and this bill would remove 
obstacles to such exchanges;
  Second, the bill is narrowly crafted. It provides sovereign immunity 
only in cases in which the President already immunized the artwork in 
question;
  Third, H.R. 4086 includes an exception for Nazi-era claims. This 
carve-out is consistent with longstanding American policy to seek 
restitution when possible for victims of the Nazi government, its 
allied governments and its affiliated governments.
  I urge my colleagues to support the bill, and I yield back the 
balance of my time.
  Mr. CONYERS. Madam Speaker, I strongly support H.R. 4086, the 
``Foreign Cultural Exchange Jurisdictional Immunity Clarification 
Act,'' as amended. This is a bipartisan bill that the Judiciary 
Committee ordered favorably reported by voice vote.
  This bill contains a narrowly tailored fix to the expropriation 
exception of the Foreign Sovereign Immunities Act of 1976 that would 
clarify that the exception is not available in cases where:
  artwork or a cultural object is imported into the United States for 
temporary exhibit or display pursuant to an agreement between a foreign 
state that owns or has custody of the work and a U.S. cultural or 
educational institution;
  the work has been granted immunity from seizure by the President 
pursuant to the Immunity from Seizure Act because it is of cultural 
significance and its temporary exhibit or display is in the national 
interest; and
  the President's determination has been published pursuant to IFSA.
  The bill also clarifies that its provisions do not apply to Nazi-era 
claims regarding the ownership of art or cultural objects.
  In short, this bill immunizes foreign states from lawsuits that seek 
damages for artwork that is already immune from seizure pursuant to a 
Presidential determination when the work is in the U.S. for temporary 
exhibition.
  I am an original cosponsor of this bill for several reasons.
  First, H.R. 4086 will make the FSIA consistent with the purpose 
underlying the Immunity from Seizure Act.
  The IFSA was intended to encourage foreign states to lend their 
artwork and other cultural property to American museums and educational 
institutions for the cultural and educational benefit of the American 
people.
  We enacted the IFSA in 1965 at the height of the Cold War to immunize 
certain artwork owned by the Soviet Union so that the Soviets would 
lend the artwork to the University of Richmond for a temporary exhibit.
  We recognized then, and continue to recognize now, that as a general 
matter, the benefits of the cultural exchange fostered by temporary 
exhibits or displays of artwork outweigh the provision of a U.S. forum 
for disputes about the ownership of cultural property that is held by a 
foreign government.
  The benefits of cultural exchange include an increased understanding 
of and appreciation for foreign cultures, a decrease in xenophobia and 
prejudice, and perhaps even some diplomatic benefit in fostering mutual 
respect between our Nation and other nations.
  IFSA worked well for 40 years. Unfortunately, the court's decision in 
Malewicz [MA-le-vich] v. City of Amsterdam broadened the scope of the 
FSIA's expropriation exception to the point where it undermined IFSA.
  The court construed the term ``commercial activity'' as used in the 
FSIA to include the temporary exhibit of artwork in the United States. 
This triggered the expropriation exception to sovereign immunity even 
though the works at issue in Malewicz had been immunized from seizure 
by the President.
  The Malewicz case has had a chilling effect on loans of cultural 
property from foreign states.
  According to a letter urging my support for this bill that I received 
from Graham W.J. Beal, Director of the Detroit Institute of Arts, both 
the Russian and Czech governments are refusing to lend works of art to 
American museums in the wake of this court decision.
  Additionally, the Metropolitan Museum of Art withdrew a loan request 
to a Middle Eastern

[[Page 3615]]

museum out of fear that once the works were in the U.S., their presence 
would be used as grounds for a lawsuit.
  H.R. 4086 resolves the inconsistency between the IFSA and the FSIA 
created by the Malewicz decision by ensuring that any work that the 
President has immunized from seizure pursuant to IFSA will also 
immunize the foreign government owner of that work from a suit for 
damages under FSIA.
  Second, the sovereign immunity provided for under this bill is 
limited to a very specific set of circumstances.
  H.R. 4086 does not cover every possible claim concerning the 
ownership of artwork owned by a foreign government. For instance, the 
expropriation exception could be available for any claim concerning 
works that have not received immunity from seizure under IFSA.
  Similarly, the expropriation exception remains available for a work 
that is not in the United States on temporary exhibit or display 
pursuant to an agreement.
  Additionally, H.R. 4086 leaves untouched the other exceptions to 
sovereign immunity provided for in the FSIA, including the general 
``commercial activity'' exception.
  Third, I can support H.R. 4086 because it makes an exception for 
Nazi-era claims.
  This carve-out is consistent with longstanding American policy to 
seek restitution when possible for victims of the Nazi government, its 
allied governments, and its affiliated governments.
  In light of the unique historical sensitivities surrounding the Nazi 
government's deliberate campaign to steal artwork from its victims, 
H.R. 4086 rightfully ensures that victims of the Nazis are not 
foreclosed from pursuing damages for stolen art, even at the cost of 
foreclosing cultural exchange.
  H.R. 4086 is an exceedingly modest bill that will nonetheless foster 
tremendous benefits for the American people.
  I applaud Representative Steve Chabot, the sponsor of this bill, as 
well as my fellow co-sponsors, Judiciary Chairman Lamar Smith and 
Representative Steve Cohen, for their leadership on this issue.
  I urge my colleagues to support this bill.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Texas (Mr. Smith) that the House suspend the rules and 
pass the bill, H.R. 4086, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

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