[House Report 112-413]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-413
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FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT
_______
March 19, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following,
R E P O R T
[To accompany H.R. 4086]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred 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, having
considered the same, reports favorably thereon with amendments
and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendments................................................... 1
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 7
Committee Consideration.......................................... 7
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 9
Advisory on Earmarks............................................. 9
Section-by-Section Analysis...................................... 9
Changes in Existing Law Made by the Bill, as Reported............ 10
The Amendments
The amendments (stated in terms of the page and line
numbers of the introduced bill) are as follows:
Page 2, line 13, strike ``it''.
Page 2, line 22, strike ``; and'' and insert ``, and''.
Page 3, line 7, strike ``Nazi era'' insert ``Nazi-era''.
Purpose and Summary
Currently, a provision in the Foreign Sovereign Immunities
Act (FSIA) discourages foreign governments from lending
government-owned artwork and objects of cultural significance
to U.S. museums and educational institutions for temporary
exhibition or display. Foreign governments are discouraged from
such lending by the possibility that it will open them up to
litigation in U.S. courts for which they would otherwise be
immune. This legislation fixes this problem by making a
narrowly tailored change to FSIA. This change will make it
easier for U.S. museums and educational institutions to borrow
works of art and other objects from abroad, increasing
Americans' opportunities for cultural and educational
development.
Background and Need for the Legislation
The Immunity from Seizure Act (IFSA) provides the
President, or the President's designee, with authority to grant
a work of art or other object of cultural significance immunity
from seizure by U.S. courts whenever it is determined that its
temporary exhibition or display is within the national interest
of the United States.\1\ The intent of the IFSA is to encourage
the cultural and educational exchange of artwork and other
culturally significant objects which, in absence of the
legislation, would not be made available for exchange. In
enacting IFSA, Congress recognized that cultural exchange can
produce substantial benefits to the United States, both
artistically and diplomatically.\2\
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\1\22 U.S.C. Sec. 2459.
\2\H.R. Rep. No. 89-1070 (1965).
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However, for artwork and cultural objects owned by foreign
governments, the intent of IFSA is being frustrated by the
Foreign Sovereign Immunities Act (FSIA). Recent court decisions
have interpreted a provision of FSIA in a manner that opens
foreign governments up to the jurisdiction of U.S. courts if
foreign government-owned artwork is present in the United
States in connection with a commercial activity and there is a
claim that the artwork was taken in violation of international
law.\3\ Courts have determined that the non-profit exhibition
or display of the artwork can be considered ``present in the
United States in connection with commercial activity'' even if
the artwork has been granted immunity under IFSA.
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\3\28 U.S.C. Sec. 1605(a)(3).
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This has led, in many instances, to foreign governments
declining to export artwork and cultural objects to the United
States for temporary exhibition or display. Future cultural
exchanges may be seriously curtailed by foreign lenders'
unwillingness to permit their artwork and other cultural
objects to travel to the United States. In order to keep the
exchange of foreign government-owned cultural objects flowing,
this legislation clarifies the relationship between the
immunity provided by IFSA and the exceptions to sovereign
immunity provided for in FSIA.
A. IMPORTANCE OF CULTURAL EXCHANGE THROUGH MUSEUM LOANS
``The United States has long recognized the importance of
encouraging the cultural exchange of ideas through
international loan exhibitions.''\4\ Art exhibitions enrich the
cultural life of Americans and serve a number of public
interests, including education of the public, scholarship,
promotion of further artistic activity, and entertainment.
Exhibitions of international artwork in particular inspire
cultural exploration, the expansion of the global community,
and the exchange of ideas through art.
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\4\Yin-Shuan Lue, Polly Clark, & Marion R. Fremont-Smith,
Countering a Legal Threat to Cultural Exchanges of Works of Art: The
Malewicz Case and Proposed Remedies 3 (Hauser Center for Nonprofit
Organization, Working Paper No. 42, 2007).
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International loans of artwork produce significant benefits
for the countries on both sides of the exchange. For the
country exporting the artwork, ``art serves as an `ambassador'
which ignites interest in, understanding of, and compassion for
that country. As such, international exchange of artworks can
foster the breakdown of parochialism and increase international
harmony.''\5\ And, for the country importing the artwork, ``art
serves to widen its citizenry's cultural horizons and stimulate
new art and scholarship.''\6\ In short, the international
exchange of artwork serves as a ``good ambassador'' for the
exporting country and enriches the importing country by both
educating and stimulating further artistic activity.
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\5\Id. at 21.
\6\Id.
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B. THE IMMUNITY FROM SEIZURE ACT
In 1965, Congress enacted the Immunity from Seizure Act to
allow foreign entities\7\ to lend artwork and other objects of
cultural significance without fear that the loan would subject
them to the jurisdiction of U.S. courts.\8\ IFSA creates a
mechanism by which the President or the President's designee
(currently the Department of State) may grant immunity to
objects to be imported that are determined to be of ``cultural
significance and that the temporary exhibition or display
thereof within the United States is in the national
interest.''\9\
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\7\IFSA applies to artwork owned by private entities as well as
foreign states. This legislation only applies to artwork owned by
foreign states.
\8\S. Rep. No. 89-747, at 2 (1965).
\9\22 U.S.C. Sec. 2459(a).
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In order to qualify for immunity, there must be an
agreement between the foreign owner or custodian and a U.S.
cultural or educational institution ``providing for the
temporary exhibition or display'' of the artwork ``at any
cultural exhibition, assembly, activity, or festival
administered, operated, or sponsored, without profit, by any
such cultural or educational institution.''\10\ Additionally,
the State Department must determine that (1) the object is of
cultural significance, and (2) the temporary exhibition of the
object in the United States is in the national interest. If the
State Department determines that the requirements have been met
and it publishes notice in the Federal Register of its
determinations before the objects are imported:
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\10\Id.
no court of the United States, any State, the District
of Columbia, or any territory or possession of the
United States may issue or enforce any judicial
process, or enter any judgment, decree or order, for
the purpose or having the effect of depriving such
institution, or any carrier engaged in transporting
such work or object within the United States of custody
or control of such object.\11\
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\11\Id.
In enacting IFSA, Congress recognized that cultural
exchange can produce substantial benefits, both artistically
and diplomatically. The House Judiciary Committee reported that
``the purposes of this proposed legislation are salutary and
will contribute to the educational and cultural development of
the people of the United States.''\12\ The accompanying Senate
report recognized that the legislation was ``a significant step
in international cooperation.''\13\ The legislation was
intended to accomplish its purposes by encouraging ``the
exhibition in the United States of objects of cultural
significance which, in the absence of assurances such as are
contained in the legislation, would not be made
available.''\14\ The adoption of IFSA was supported by the
State Department, the Justice Department, the Smithsonian
Institution, and the American Association of Museums.\15\
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\12\H.R. Rep. No. 89-1070, at 2.
\13\S. Rep. No. 89-747, at 1-2.
\14\Id. at 3.
\15\H.R. Rep. No. 89-1070.
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Since its enactment in 1965, IFSA has served to facilitate
cultural exchanges with foreign countries, thereby building
international understanding and appreciation of other cultures,
and conferring educational and artistic benefits on Americans.
In recent years, the IFSA has been used with increasing
regularity to provide assurances to foreign lenders when they
temporarily export their artwork to the United States. Indeed,
from 2000 to the beginning of 2008, the State Department has
published in the Federal Register determinations for more than
650 temporary exhibits.\16\ However, recent court decisions
addressing the relationship between IFSA and the FSIA have
undercut the ability of IFSA, in many cases, to provide foreign
governments with assurances they require to be willing to
export artwork to the United States for temporary exhibition or
display.
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\16\Because each of the notices published in the Federal Register
can include multiple objects, the works involved actually number in the
many thousands.
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C. THE FOREIGN SOVEREIGN IMMUNITIES ACT
From the Supreme Court's 1812 decision in Schooner Exchange
v. McFaddon \17\ until the State Department's 1952 Tate
letter,\18\ the United States adhered to the ``absolute''
theory of sovereign immunity, pursuant to which foreign
sovereigns were absolutely immune from suit in U.S. courts.\19\
In 1952, the United States switched to the ``restrictive''
theory of sovereign immunity, under which ``immunity is
confined to suits involving the foreign sovereign's public
acts, and does not extend to cases arising out of a foreign
state's strictly commercial acts.''\20\ Congress passed FSIA in
1976 to codify the restrictive theory of sovereign immunity.
FSIA for the first time established a ``comprehensive set of
legal standards governing claims of immunity in every civil
action against a foreign state or its political subdivisions,
agencies, or instrumentalities.''\21\ It is the ``sole basis
for obtaining jurisdiction over a foreign state in our
courts.''\22\
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\17\11 U.S. (7 Cranch) 116 (1812)
\18\Letter from Jack B. Tate, Acting Legal Adviser, U.S. Dept. of
State, to Acting U.S. Attorney General Phillip B. Perlman (May 19,
1952).
\19\Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486-87
(1983).
\20\Id. at 487.
\21\Id. at 488.
\22\Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S.
428, 434 (1989).
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FSIA sets forth a general rule that foreign states are
immune from the jurisdiction of U.S. courts.\23\ Courts may
exercise jurisdiction over foreign states only if the suit
comes within one of the specific statutory exceptions to that
rule.\24\ For international loans of foreign government-owned
artwork, the relevant exception is set forth in 28 U.S.C.
Sec. 1605(a)(3). This exception, commonly referred to as the
``expropriation exception,'' provides that a foreign state\25\
is not immune from suit in any case ``in which rights in
property taken in violation of international law are in issue
and that property . . . is present in the United States in
connection with a commercial activity carried on in the United
States by the foreign state.'' Thus, 28 U.S.C. Sec. 1605(a)(3),
allows a suit against a foreign state when (1) rights in
property were taken in violation of international law, (2) the
property is present in the United States, and (3) the property
has a connection to a commercial activity in the United States
conducted by the foreign state.
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\23\28 U.S.C. Sec. 1604.
\24\See 28 U.S.C. Sec. Sec. 1605-1607.
\25\A ``foreign state'' includes a political subdivision of a
foreign state or an agency or instrumentality of a foreign state. 28
U.S.C. Sec. 1603.
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D. THE RELATIONSHIP BETWEEN IFSA AND FSIA
The United States has a strong national interest in
facilitating cultural exchanges of artwork with other nations.
In furtherance of that interest, the State Department has
regularly exercised authority delegated to it to grant immunity
for temporary art loans from abroad that are of cultural
significance and in the national interest. For forty years,
this immunity provided foreign lenders with the assurance that
immunized loans of artwork would not serve as the basis for the
jurisdiction of U.S. courts. However, these assurances and the
willingness of foreign government lenders to loan their artwork
have been threatened by recent Federal court decisions holding
that foreign sovereigns waive their sovereign immunity under
FSIA by sharing their artwork with American museums and
educational institutions even if the loan is made pursuant to a
grant of IFSA immunity.\26\ These decisions hold that the
presence in the United States of artwork protected under IFSA
can serve as the basis for jurisdiction under the FSIA
expropriation exception, 28 U.S.C. Sec. 1605(a)(3).
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\26\See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298
(D.D.C. 2005).
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Thus, in a manner that substantially undermines the
purposes of IFSA, courts have extended the FSIA ``commercial
activity nexus to cover cross-border museum loans . . . [and]
stripped the IFSA of its ability to provide any sort of
meaningful immunity to art loans coming into the United States,
by holding that immunity under IFSA prohibits seizure but does
not bar judicial proceedings against the property under
immunity.''\27\ In other words, ``what were formerly viewed as
educational and cultural promotions for international art
exhibitions now can take the form of commercial activities
capable of stripping foreign sovereigns of their
immunity.''\28\
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\27\Charlene A. Caprio, ``Artwork, Cultural Heritage Property and
the Foreign Sovereign Immunities Act,'' 13 Int'l J. of Cultural
Prop.285, 287 (2006).
\28\Id. at 291.
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These decisions, however, defeat the purpose of IFSA by
allowing the very type of lawsuit that motivated the passage of
the statute in the first place. By allowing the presence in the
United States of immunized works to form the basis for
depriving foreign states of sovereign immunity, courts have
turned IFSA on its head and paved the way for further lawsuits
of the very sort that Congress intended to prevent. As one
scholar has observed, ``[a] museum promotion or art loan into
the United States is not the best mechanism to trap foreign
sovereigns into U.S. courts. It mixes together two separate
interests: promoting (by protecting) cross-cultural art and
cultural heritage exchanges, and providing a forum for wronged
individuals to seek justice for their private claims.''\29\
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\29\Id. at 303.
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In enacting IFSA, Congress made the policy decision to
promote Americans' exposure to objects of cultural significance
over the potential rights of individual claimants. Congress's
aim was to ensure that foreign lenders would not be subject to
the jurisdiction of U.S. courts when they loaned immunized
artwork for temporary exhibits in the United States. As
Representative Byron Rogers explained during floor debate on
IFSA, the bill was designed to assure the foreign lender that
it could lend artwork to the United States without incurring
the risk that the artwork would be seized or the lender would
become subject to suit:
If a foreign country or an agency should send exhibits
to this country in the exchange and cultural program
and someone should decide that is necessary for them to
institute a lawsuit against that particular country or
those who may own the cultural objects, the bill would
assure the country that if they send the objects to us
they would not be subjected to a suit and an attachment
in this country.\30\
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\30\111 Cong. Rec. 25,929 (1965) (remarks of Rep. Rogers) (emphasis
added).
The ongoing effectiveness of IFSA to encourage foreign
governments to lend artwork depends upon the ability to provide
assurance to foreign lenders that participating in an immunized
exhibit will, in fact, protect them from litigation in the
United States based on the exhibit.
In sum, court decisions interpreting FSIA's expropriation
exception, 28 U.S.C. Sec. 1605(a)(3), have undermined the
interests that IFSA was designed to foster and have created
tension in U.S. relations with other countries that IFSA was
intended to facilitate. As a result, foreign nations are less
willing to loan cultural objects for exhibition in the United
States, and American institutions are less able to host
exhibitions of such objects, depriving the American public of
opportunities to view and learn from such exhibitions.
E. THE LEGISLATION
H.R. 4086 makes a very modest but important change to FSIA
to restore the protections that IFSA was intended to provide
and to bring the two statutes into harmony. Foreign government
lenders will once again be assured that if they are granted
immunity from seizure under IFSA, the loan of artwork or other
objects of cultural significance for temporary non-profit
exhibition or display in the United States will not open them
up to the jurisdiction of U.S. courts.
Although this legislation is of great importance to
ensuring the continued willingness of foreign states to lend
their artwork to U.S. institutions, it is narrowly-tailored for
at least three reasons. First, the immunity applies to only one
of several FSIA exceptions to sovereign immunity--the exception
related to rights in property taken in violation of
international law, often called the ``expropriation
exception.'' Second, the immunity provided by this bill only
applies to foreign government-owned artwork and cultural
objects for which the President, or the President's designee,
has granted the object immunity from seizure under IFSA.\31\
Thus, if foreign government-owned artwork has not been granted
immunity pursuant to IFSA, the protection provided by this
legislation will not apply. Third, the immunity provided by
this bill does not apply to claims arisihng from artwork and
objects of cultural significance that were taken in violation
of international law by the Nazi government of Germany and its
allied and affiliated governments between January 30, 1933 and
May 8, 1945.
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\31\22 U.S.C. Sec. 2459.
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Additionally, it is worth recognizing that without the
protections provided for in this legislation the artwork and
cultural objects covered by this bill would not, in all
likelihood, be imported into the United States for temporary
exhibition or display. Therefore, this legislation does not, as
a practical matter, change the status quo for claiming that
artwork was taken in violation of international law. In the
absence of this legislation foreign governments have simply
avoided the jurisdiction of U.S. courts by refusing to export
their artwork to the United States for temporary exhibition or
display. In other words, the practical effect is that whether
or not this legislation is enacted, claimants will not, in most
cases, be able to bring suit under 28 U.S.C. Sec. 1605(a)(3).
Without this legislation, however, Americans will be deprived
of the opportunity to view these works of art and cultural
objects if a foreign government believes loaning its property
will open it up to litigation under FSIA.
Hearings
The Committee on the Judiciary held no hearings on H.R.
4086.
Committee Consideration
On February 28, 2012, the Committee met in open session and
ordered the bill H.R. 4086 favorably reported with an
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 4086.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4086, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, March 19, 2012.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4086, the
``Foreign Cultural Exchange Jurisdictional Immunity
Clarification Act.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4086--Foreign Cultural Exchange Jurisdictional
Immunity Clarification Act
As ordered reported by the House Committee on the Judiciary on
February 28, 2012.
Based on information provided by the Administrative Office
of the United States Courts and the National Gallery of Art,
CBO estimates that H.R. 4086 would have no significant impact
on the Federal budget. Enacting H.R. 4086 would not affect
direct spending or revenues; therefore, pay-as-you-go
procedures do not apply.
Under current law, works of art loaned by foreign
governments generally are immune to certain decisions made by
Federal courts and cannot be confiscated. However, foreign
governments engaging in commercial activity do not have
immunity in Federal courts.
H.R. 4086 would clarify that importing works of art into
the United States for temporary display would not be considered
a commercial activity and thus would be immune from seizure if
the President, or the President's designee, determines that
display of the works is in the national interest.
H.R. 4086 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of State, local, or tribal
governments.
The CBO staff contact for this estimate is Martin von
Gnechten. The estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
4086 clarifies the exception to foreign sovereign immunity set
forth in section 1605(a)(3) of title 28, United States Code.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 4086 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
Section 1. Short title.
Section 1 provides that the short title is the ``Foreign
Cultural Exchange Jurisdictional Immunity Clarification Act.''
Section 2. Clarification of Jurisdictional Immunity of Foreign States.
Section 2 amends 28 U.S.C. Sec. 1605 to clarify the
immunity foreign states are granted under the Foreign Sovereign
Immunities Act when they temporarily export artwork or other
objects of cultural significance to the United States pursuant
to the provisions of the Immunity From Seizure Act, 22 U.S.C.
Sec. 2459. Under the amendments made by the Act, the temporary
importation of artwork or cultural objects is not considered
``commercial activity'' for purposes of 28 U.S.C.
Sec. 1605(a)(3) if the objects are: (a) imported pursuant to an
agreement between the foreign state and the United States or a
cultural or educational institution within the United States;
(b) the President, or the President's designee, has made a
determination that the work is of cultural significance and the
temporary exhibition or display of such work is in the national
interest; and (c) notice of that determination has been
published in the Federal Register. This immunity does not apply
if the artwork or cultural object imported was taken in
violation of international law by the Nazi government of
Germany or its collaborators between January 30, 1933, and May
8, 1945. Finally, the section provides that this immunity only
applies to cases commenced on or after the date of enactment of
the Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SECTION 1605 OF TITLE 28, UNITED STATES CODE
Sec. 1605. General exceptions to the jurisdictional immunity of a
foreign state
(a) * * *
* * * * * * *
(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.