United States: Jurisdictional Law Hailed As Impetus To End Russian Art Loan Embargo That Is Actually Unaffected By That Law

Last Updated: January 12 2017
Article by Nicholas M. O'Donnell

With reports that Russia is considering abandoning the nearly five year old embargo on loans of cultural artifacts into the United States, the cited connection between that willingness and the recent passage of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) bears closer scrutiny that it has received to date.  If the unnecessary embargo were to come to an end it would be welcome news, but Russia's claim that the new law is the reason is hard to square with the history of the issue.  It cannot be stated emphatically enough that the new law makes Russian art loans no more or less safe from seizure than they were before, because the law governing seizure of cultural objects (the Immunity from Seizure Act, or IFSA) has not changed.  Russia's penchant for framing the question as something for which it needed protection is thus frustrating because it is simply incorrect.  The Russian loan embargo has been political theater from the time in began in 2012 in retaliation after Russian defendants lost a key litigation in Washington, DC, and the new law was passed in response to events that had nothing to do with Russia. 

As we have explained before, the FCEJICA was an amendment to a jurisdictional statute (Foreign Sovereign Immunities Act , or FSIA), that is, a law about whether U.S. courts can hear a certain kind of claim (i.e., against foreign sovereign defendants).  Under the "expropriation exception" of the FSIA, 28 U.S.C. § 1605(a)(3), a sovereign defendant like Russia or Hungary may be sued in U.S. federal court if the claims concern rights in property taken in violation of international law, and the sovereign defendant is engaged in commercial activity in America (not necessarily related to the property at issue).  The FSIA does not create the property claim itself, but it does endorse U.S. courts as a forum to hear them.  The FSIA is the basis for many restitution claims, particularly for Nazi-looted art (for which the FCEJICA also has a specific exception), including the Welfenschatz and Flechtheim cases brought by clients of ours. 

Many sovereign defendants dispute whether they are engaged in commercial activity here, and in one—and only one—case, the sole commercial activity alleged was the loan of paintings immune from seizure under IFSA.  The District Court ruled that such a loan (which had been made by an Amsterdam museum) could satisfy the commercial activity prong of the expropriation exception.  In that case, however (Malewicz v. City of Amsterdam), the consequence was only over whether the lawsuit could proceed (it did), not over whether the paintings themselves could be seized (they could not).  The FCEJICA overrules that result by statute, such that if there is no commercial activity other than a loan of an IFSA-immune object, now the defendant cannot be sued in the United States. 

How does IFSA work, then?  IFSA allows the State Department to immunize any cultural object loaned into the United States from seizure while it is here.  Once granted immunity, an object cannot be seized for any reason, and it must be returned whence it came.  Critically, the FCEJICA does not amend, alter or affect IFSA in any way.  Much of the outcry about the FCEJICA has centered on the argument that it blesses the loan of looted or stolen art.  It does not, however.  If one believes (as many of good faith do) that stolen art should not be loaned into the U.S. without consequence, then it is IFSA that must be amended, not the FSIA. 

None of this has anything to do with Russia.  The FCEJCA was proposed three times before it passed, and it was a direct response to the Malewicz case, not Russia.  In fact, the connection comes from an FSIA-based case that Russia lost nearly a decade ago and which it continues to defy. 

In 2005, the (Orthodox Jewish) Chabad movement in Brooklyn sued the Russian Federation, the Russian Ministry of Culture and Mass Communication, the Russian State Library and the Russian State Military Archive, seeking the return of the so-called Rebbe's (the movement's charismatic leader) collection of books and other objects of interest to the Chabad-Lubavitch movement and teachings (the "Library").  The defendants moved to dismiss Chabad's complaint, arguing that the expropriation exception did not apply.  The District Court denied the motion to dismissed and the Court of Appeals for the D.C. Circuit affirmed the order in 2010.  In short, the courts concluded that the claims did relate to rights in property taken in violation of international law, and that the Russian defendants were sufficiently commercially active. 

In response, Russia announced that it would defy the judgment and refuse to participate in the proceedings any further.  The Russian defendants have been in contempt of the U.S. District Court in Washington for four years, and have been accruing a fine of $50,000 per day ever since for flouting the Court's order (last liquidated in an unpaid amount of $43,700,00 as of September 2015).

The current loan embargo was in explicit retaliation for the judgment of the U.S. court, not because of the Malewicz case or any other Russian loan.  In short, it is unconnected to any principled concern about seizure because any object from Russia that has IFSA imimunity cannot be seized.  The FCEJICA does not change this.  If the Chabad case were filed today, the FCEJICA would not change the result, because the Chabad case does not concern property that was ever loaned into the United States.

Yet in response to the statute's passage, Russian officials have been suddenly vocal that the law will bring an end to the embargo.  That may well be, but the unilateral refusal to loan cultural objects has never had anything to do with the law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Nicholas M. O'Donnell
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions