49–006 

114TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 114–141 

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 govVerDate Sep 11 2014 04:12 Jun 09, 2015 Jkt 049006 PO 00000 Frm 00001 Fmt 6659 Sfmt 6601 E:\HR\OC\HR141.XXX HR141

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1 22 U.S.C. § 2459. 

2 H.R. Rep. No. 89–1070 (1965). 

3 28 U.S.C. § 1605(a)(3). 

ernment-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

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. 

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. 


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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). 5 Id. at 21. 6 Id. 

7 IFSA applies to artwork owned by private entities as well as foreign states. This legislation 

only applies to artwork owned by foreign states. 8S. Rep. No. 89–747, at 2 (1965). 

9 22 U.S.C. § 2459(a). 

10 Id. 

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. 

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. 

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

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, 

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 


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11 Id. 12 H.R. Rep. No. 89–1070, at 2. 13S. Rep. No. 89–747, at 1–2. 14 Id. at 3. 15 H.R. Rep. No. 89–1070. 16 Because each of the notices published in the Federal Register can include multiple objects, 

the works involved actually number in the many thousands. 17 11 U.S. (7 Cranch) 116 (1812). 18Letter 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. 

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

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

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. 

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 


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21 Id. at 488. 22 Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). 23 28 U.S.C. § 1604. 24See 28 U.S.C. §§ 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. § 1603. 26 28 U.S.C. § 1605(a)(3). 27 Nout van Woundenberg, State Immunity and Cultural Objects on Loan 116 (2012). 28See, e.g., Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298 (D.D.C. 2005). 

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

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. § 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. § 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

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. 

§ 1605(a)(3). 

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 


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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. 31 Id. at 303. 32 111 Cong. Rec. 25,929 (1965) (remarks of Rep. Rogers) (emphasis added). 

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

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

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

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. § 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. 


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33 22 U.S.C. § 2459. 34The 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). 35Shira 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). 36 Id. at 1152–1153. 

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. 

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, 

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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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. § 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. 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 


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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 

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eral 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. 

§ 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. § 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. § 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. § 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. 


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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 

* * * * * * * 

§ 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— 


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(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 


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13 

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. 


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14 

(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 


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(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. 

* * * * * * * 

Æ 


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