[House Report 114-141]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-141
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FOREIGN CULTURAL EXCHANGE JURISDICTIONAL IMMUNITY CLARIFICATION ACT
_______
June 8, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 889]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 889) 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, report favorably thereon without amendment
and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 8
Committee Consideration.......................................... 8
Committee Votes.................................................. 8
Committee Oversight Findings..................................... 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Duplication of Federal Programs.................................. 9
Disclosure of Directed Rule Makings.............................. 10
Performance Goals and Objectives................................. 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 11
Purpose and Summary
Under current law, 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. At the same time, in recognition of the
unprecedented scale of art theft by Nazi Germany and in light
of the longstanding policy interest in ensuring that victims of
Nazi crimes have an opportunity to pursue justice, the
legislation also contains an exception for Nazi-era claims.
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 in the United States is within
our national interest.\1\ The intent of the IFSA is to
encourage the cultural and educational exchange of artwork and
other culturally significant objects which, in the absence of
the Act, 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 object ``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, 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 FSIA have undercut the ability of
IFSA, in many cases, to provide foreign governments with the
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 or cultural objects, 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.''\26\ 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.
The United States is the only nation to have such an
exception.\27\
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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.
\26\28 U.S.C. Sec. 1605(a)(3).
\27\Nout van Woundenberg, State Immunity and Cultural Objects on
Loan 116 (2012).
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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 and cultural objects
with other nations. In furtherance of that interest, the State
Department has regularly exercised authority delegated to it to
grant immunity for temporary 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 and cultural objects
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 objects have been
threatened by recent Federal court decisions holding that
foreign sovereigns waive their sovereign immunity under FSIA by
sharing their objects with American museums and educational
institutions even if the loan is made pursuant to a grant of
IFSA immunity.\28\ These decisions hold that the presence in
the United States of cultural objects 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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\28\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.''\29\ 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.''\30\
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\29\Charlene A. Caprio, ``Artwork, Cultural Heritage Property and
the Foreign Sovereign Immunities Act,'' 13 Int'l J. of Cultural Prop.
285, 287 (2006).
\30\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.''\31\
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\31\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'
aim was to ensure that foreign lenders would not be subject to
the jurisdiction of U.S. courts when they loaned immunized
cultural objects 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 cultural objects to the United States without
incurring the risk that the objects 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.\32\
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\32\111 Cong. Rec. 25,929 (1965) (remarks of Rep. Rogers) (emphasis
added).
The ongoing effectiveness of IFSA to encourage foreign
governments to lend cultural objects 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. 889 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 cultural objects 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 immunity from seizure under IFSA.\33\
Thus, if foreign government-owned work has not been granted
immunity pursuant to IFSA, the protection provided by this
legislation will not apply.
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\33\22 U.S.C. Sec. 2459.
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Third, the immunity provided by this bill does not apply to
claims arising 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.\34\ This
exception is included in the bill because of the systematic
looting of artwork by the Nazis in Europe during Hitler's
reign--looting that was ``on a historically unmatched
level.''\35\ According to one commentator,
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\34\The Conference on Jewish Material Claims Against Germany, Inc.
and the American Jewish Committee have reviewed the text of this
exception and have no objection to it. Letter from Conference on Jewish
Material Claims Against Germany, Inc. to the Association of Art Museum
Directors (Dec. 19, 2013) (on file with the Committee).
\35\Shira T. Shapiro, ``How Republic of Austria v. Altmann and
United States v. Portrait of Wally Relay the Past and Forecast the
Future of Nazi Looted-Art Restitution Litigation,'' 34 Wm. Mitchell L.
Rev. 1147, 1150 (2008).
Between 1938 and 1945, the Nazi regime looted and
confiscated an estimated three million artworks
throughout occupied Europe. In doing so, the Third
Reich effectively looted between one-fourth and one-
third of European art. . . . The racial and cultural
purity fundamental to Nazi ideology extended to
Hitler's plan to appropriate European art. It was not
enough merely to steal the art; rather, the Nazis'
exhausting and extensive processes intended to strip
European Jews of their dignity and cultural lifestyles.
Thus, Nazi looted-art restitution claims represent more
than the theft of a particular family's private
collection--they instead symbolize the profound depths
of the Nazis' crimes against humanity. . . . To
establish Germany as the world's most civilized
society, Hitler implemented an unprecedented, ruthless,
and immoral scheme to steal all European art for German
ownership.\36\
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\36\Id. at 1152-1153.
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 those 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
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its property will open it up to litigation under FSIA.
Hearings
The Committee on the Judiciary held no hearings on H.R.
889.
Committee Consideration
On March 24, 2015, the Committee met in open session and
ordered the bill H.R. 889 favorably reported, without
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. 889.
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. 889, 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 30, 2015.
Hon. Bob Goodlatte, 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. 889, 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 Marin
Burnett, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 889--Foreign Cultural Exchange Jurisdictional Immunity
Clarification Act.
As ordered reported by the House Committee on the Judiciary
on March 24, 2015.
Based on information provided by the Administrative Office
of the United States Courts, CBO estimates that implementing
H.R. 889 would have no significant effect on the Federal
budget. Enacting H.R. 889 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 from certain decisions made by
Federal courts and cannot be confiscated as long as the
President, or the President's designee, determines that display
of the works is in the national interest. However, commercial
activity in which foreign governments are engaged does not have
immunity in Federal courts. H.R. 889 would clarify that
importing works of art into the United States for temporary
display is not a commercial activity, and thus that such works
would be immune from seizure.
H.R. 889 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 Marin Burnett.
The estimate was approved by Theresa Gullo, Assistant Director
for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 889 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 889 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
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.
889 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. 889 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: (a) the work is 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):
TITLE 28, UNITED STATES CODE
* * * * * * *
PART IV--JURISDICTION AND VENUE
* * * * * * *
CHAPTER 97--JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
* * * * * * *
Sec. 1605. General exceptions to the jurisdictional immunity of a
foreign state
(a) A foreign state shall not be immune from the
jurisdiction of courts of the United States or of the States in
any case--
(1) in which the foreign state has waived its
immunity either explicitly or by implication,
notwithstanding any withdrawal of the waiver which the
foreign state may purport to effect except in
accordance with the terms of the waiver;
(2) in which the action is based upon a commercial
activity carried on in the United States by the foreign
state; or upon an act performed in the United States in
connection with a commercial activity of the foreign
state elsewhere; or upon an act outside the territory
of the United States in connection with a commercial
activity of the foreign state elsewhere and that act
causes a direct effect in the United States;
(3) in which rights in property taken in violation
of international law are in issue and that property or
any property exchanged for such property is present in
the United States in connection with a commercial
activity carried on in the United States by the foreign
state; or that property or any property exchanged for
such property is owned or operated by an agency or
instrumentality of the foreign state and that agency or
instrumentality is engaged in a commercial activity in
the United States;
(4) in which rights in property in the United
States acquired by succession or gift or rights in
immovable property situated in the United States are in
issue;
(5) not otherwise encompassed in paragraph (2)
above, in which money damages are sought against a
foreign state for personal injury or death, or damage
to or loss of property, occurring in the United States
and caused by the tortious act or omission of that
foreign state or of any official or employee of that
foreign state while acting within the scope of his
office or employment; except this paragraph shall not
apply to--
(A) any claim based upon the exercise or
performance or the failure to exercise or
perform a discretionary function regardless of
whether the discretion be abused, or
(B) any claim arising out of malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with
contract rights; or
(6) in which the action is brought, either to
enforce an agreement made by the foreign state with or
for the benefit of a private party to submit to
arbitration all or any differences which have arisen or
which may arise between the parties with respect to a
defined legal relationship, whether contractual or not,
concerning a subject matter capable of settlement by
arbitration under the laws of the United States, or to
confirm an award made pursuant to such an agreement to
arbitrate, if (A) the arbitration takes place or is
intended to take place in the United States, (B) the
agreement or award is or may be governed by a treaty or
other international agreement in force for the United
States calling for the recognition and enforcement of
arbitral awards, (C) the underlying claim, save for the
agreement to arbitrate, could have been brought in a
United States court under this section or section 1607,
or (D) paragraph (1) of this subsection is otherwise
applicable.
(b) A foreign state shall not be immune from the
jurisdiction of the courts of the United States in any case in
which a suit in admiralty is brought to enforce a maritime lien
against a vessel or cargo of the foreign state, which maritime
lien is based upon a commercial activity of the foreign state:
Provided, That--
(1) notice of the suit is given by delivery of a
copy of the summons and of the complaint to the person,
or his agent, having possession of the vessel or cargo
against which the maritime lien is asserted; and if the
vessel or cargo is arrested pursuant to process
obtained on behalf of the party bringing the suit, the
service of process of arrest shall be deemed to
constitute valid delivery of such notice, but the party
bringing the suit shall be liable for any damages
sustained by the foreign state as a result of the
arrest if the party bringing the suit had actual or
constructive knowledge that the vessel or cargo of a
foreign state was involved; and
(2) notice to the foreign state of the commencement
of suit as provided in section 1608 of this title is
initiated within ten days either of the delivery of
notice as provided in paragraph (1) of this subsection
or, in the case of a party who was unaware that the
vessel or cargo of a foreign state was involved, of the
date such party determined the existence of the foreign
state's interest.
(c) Whenever notice is delivered under subsection (b)(1),
the suit to enforce a maritime lien shall thereafter proceed
and shall be heard and determined according to the principles
of law and rules of practice of suits in rem whenever it
appears that, had the vessel been privately owned and
possessed, a suit in rem might have been maintained. A decree
against the foreign state may include costs of the suit and, if
the decree is for a money judgment, interest as ordered by the
court, except that the court may not award judgment against the
foreign state in an amount greater than the value of the vessel
or cargo upon which the maritime lien arose. Such value shall
be determined as of the time notice is served under subsection
(b)(1). Decrees shall be subject to appeal and revision as
provided in other cases of admiralty and maritime jurisdiction.
Nothing shall preclude the plaintiff in any proper case from
seeking relief in personam in the same action brought to
enforce a maritime lien as provided in this section.
(d) A foreign state shall not be immune from the
jurisdiction of the courts of the United States in any action
brought to foreclose a preferred mortgage, as defined in
section 31301 of title 46. Such action shall be brought, heard,
and determined in accordance with the provisions of chapter 313
of title 46 and in accordance with the principles of law and
rules of practice of suits in rem, whenever it appears that had
the vessel been privately owned and possessed a suit in rem
might have been maintained.
(g) Limitation on Discovery.--
(1) In general.--(A) Subject to paragraph (2), if
an action is filed that would otherwise be barred by
section 1604, but for section 1605A, the court, upon
request of the Attorney General, shall stay any
request, demand, or order for discovery on the United
States that the Attorney General certifies would
significantly interfere with a criminal investigation
or prosecution, or a national security operation,
related to the incident that gave rise to the cause of
action, until such time as the Attorney General advises
the court that such request, demand, or order will no
longer so interfere.
(B) A stay under this paragraph shall be in
effect during the 12-month period beginning on
the date on which the court issues the order to
stay discovery. The court shall renew the order
to stay discovery for additional 12-month
periods upon motion by the United States if the
Attorney General certifies that discovery would
significantly interfere with a criminal
investigation or prosecution, or a national
security operation, related to the incident
that gave rise to the cause of action.
(2) Sunset.--(A) Subject to subparagraph (B), no
stay shall be granted or continued in effect under
paragraph (1) after the date that is 10 years after the
date on which the incident that gave rise to the cause
of action occurred.
(B) After the period referred to in
subparagraph (A), the court, upon request of
the Attorney General, may stay any request,
demand, or order for discovery on the United
States that the court finds a substantial
likelihood would--
(i) create a serious threat of
death or serious bodily injury to any
person;
(ii) adversely affect the ability
of the United States to work in
cooperation with foreign and
international law enforcement agencies
in investigating violations of United
States law; or
(iii) obstruct the criminal case
related to the incident that gave rise
to the cause of action or undermine the
potential for a conviction in such
case.
(3) Evaluation of evidence.--The court's evaluation
of any request for a stay under this subsection filed
by the Attorney General shall be conducted ex parte and
in camera.
(4) Bar on motions to dismiss.--A stay of discovery
under this subsection shall constitute a bar to the
granting of a motion to dismiss under rules 12(b)(6)
and 56 of the Federal Rules of Civil Procedure.
(5) Construction.--Nothing in this subsection shall
prevent the United States from seeking protective
orders or asserting privileges ordinarily available to
the United States.
(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
subsection (a) of Public Law 89-259 (22 U.S.C.
2459(a)), 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 (22 U.S.C. 2459(a)),
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).
(2) Nazi-era claims.--Paragraph (1) shall not apply
in any case asserting jurisdiction under subsection
(a)(3) in which rights in property taken in violation
of international law are in issue within the meaning of
that subsection and--
(A) the property at issue is the work
described in paragraph (1);
(B) the action is based upon a claim that
such work was taken in connection with the acts
of a covered government during the covered
period;
(C) the court determines that the activity
associated with the exhibition or display is
commercial activity, as that term is defined in
section 1603(d); and
(D) a determination under subparagraph (C)
is necessary for the court to exercise
jurisdiction over the foreign state under
subsection (a)(3).
(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 Government of Germany
during the covered period;
(ii) any government in any area in
Europe that was occupied by the
military forces of the Government of
Germany during the covered period;
(iii) any government in Europe that
was established with the assistance or
cooperation of the Government of
Germany during the covered period; and
(iv) any government in Europe that
was an ally of the 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.
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