Introduction -

On December 16, 2016, President Obama signed into law the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA). The bill, which extends sovereign immunity to foreign states that send works of art to the U.S. for temporary exhibit, passed with bipartisan support. The FCEJICA was first introduced in the House of Representatives in 2012, but failed to secure support in the Senate. However, the bill was reintroduced in the Senate in July 2016, was reported by the Judiciary Committee in September, and passed both the House and the Senate by voice vote in December.

The FCEJICA amends the U.S. Foreign Sovereign Immunities Act (FSIA), the legal regime that governs litigation against foreign sovereigns and state instrumentalities in American courts. The FSIA establishes a general presumption that foreign sovereigns are immune from suit, subject to certain exceptions. One such exception, known as the “expropriation exception,” abrogates the foreign sovereign immunity from U.S. judicial proceedings in cases involving the taking of property in violation of international law. The FCEJICA narrows the expropriation exception by excluding from its scope circumstances where the property at issue consists of works of art loaned by a foreign government for temporary display in the U.S. While this latest amendment to the FSIA was billed as a clarification, it may serve to create new uncertainties as to the exact circumstances in which cultural property may form the basis of a suit against a foreign sovereign in U.S. courts.