Grossman LLP | Recently Enacted Federal Law Hopes to Facilitate Art Lending from Abroad
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  • Recently Enacted Federal Law Hopes to Facilitate Art Lending from Abroad
    Under a recently enacted federal law, foreign states have been granted sovereign immunity in controversies over the temporary exhibition of artworks and cultural objects on loan to the United States, The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, signed at the end of last year by President Obama, grants immunity from federal or state-court jurisdiction to foreign governments, where an artwork or cultural object from that country has been imported for a temporary display at a U.S. cultural or educational institution. The Act effectively overrules the 2005 District of Columbia decision in Malewicz v. City of Amsterdam, holding that loaned art could provide a basis for suing a foreign government for damages, even where judicial seizure of those works was unavailable as a remedy.

    The Act carves out two exceptions: first, for works looted by Germany or German allies during World War II, and second, for works taken since 1900 as part of “coercive confiscation or misappropriation of works from members of a targeted and vulnerable group.” Despite these exceptions, the bill is not without controversy, as it is still seen by some critics as extinguishing otherwise meritorious claims directed toward looted art and archeological objects. The Holocaust Art Restitution Project, for example, has expressed concern that the Act would impact claims regarding not only Nazi looted art, but also works confiscated, for example, during the Bolshevik and Cuban revolutions or looted by ISIS in the ongoing struggle in the Middle East.

    The Association of Art Museum Directors supported the bill, arguing that the law would allow foreign governments to continue to loan works to U.S. museums, and touting the significance of cultural exchange. (Russia, for instance, has not lent works to United States institutions since a federal judge ordered the country to return a collection of books to a Brooklyn-based Hasidic community.) While it remains to be seen how much this Act will impact foreign lending to U.S. institutions, proponents of the bill are optimistic that foreign countries will be more willing to send artistically and culturally significant works to the United States.