Foreign Cultural Exchange Jurisdictional Clarification Act and the Immunity from Seizure Act—Status Quo Is Often Misunderstood

Art Law Report 15 June 2015
By Nicholas O'Donnell

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.

Immunity from suit means that a particular person or entity cannot be a defendant in a lawsuit.  The most common example is sovereign immunity: the State of New York, or the Kingdom of Spain, or their subdivisions or instrumentalities (think state museums) cannot be sued unless they have given their consent, or a statute applies an exception to that immunity.  The Foreign Sovereign Immunities Act provides a list of such exceptions for foreign sovereigns (like Germany) or their instrumentalities (like the Thyssen-Bornemisza Collection).  As it happens, many of those exceptions require consideration of commercial activity, instances in which the foreign sovereign acts more like a commercial actor (e.g., an art dealer or buyer) than a sovereign one (e.g., the activity of its diplomats or governmental affairs).  If an exception applies, then the defendant can be sued and the question then becomes whether the plaintiff will prevail.

Immunity from seizure, by contrast, concerns property, not potential defendants.  A painting that is immune from seizure cannot be seized by the government, or to satisfy a judgment in a civil lawsuit.  Without that immunity, such seizures or “executions” (after final judgment) happen as a matter of course, it is how judgments are commonly paid for.  If a painting or cultural object has IFSA immunity, it cannot be seized, for any reason.  IFSA has been the law since 1965 and it is not being amended or even proposed to be amended.  Regardless of the fate of the Foreign Cultural Exchange Jurisdictional Clarification Act, an object that has IFSA immunity can be lent into the United States and it will be returned to its lender at the end of the loan.  Full stop.  So while the city of Amsterdam would have been immune suit as a political subdivision, it was not because it lent a painting to a museum in America, even though the painting was immune from seizure under IFSA.

Much of the coverage focuses its outrage on that latter point: that “stolen” art is being lent with impunity.  But it is IFSA that allows that result, not the FSIA.  And amending the FSIA, in this or any other form, will not change it.  It will take away a potential means of jurisdiction over a class of defendants—who make a loan of an immune object constituting sufficient commercial activity if none other exists—but it would have no effect whatsoever on claims to stolen works immune from seizure.  None.

An important point to remember, too, is that immunity is not automatic.  It lies within the discretion of the State Department.

Whether or not the bill becomes law, it is useful to bear these distinctions in mind as to the current state of things.
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