[UPDATE, April 21, 2019… National Security Advisor Jonathan Bolton on Wednesday announced the Trump Administration’s decision to implement Title III: “Americans who have had their private and hard-earned property stolen in Cuba will finally be allowed to sue,” as quoted by the BBC and described further by the Miami Herald. Accordingly, the tsunami now begins.]
[UPDATE: A mere four hours after this post went live, the Miami Herald published a story asserting that Secretary Kerry notified Congress on January 4th of President Obama’s intent to suspend Helms-Burton actions for another six months. The suspension, it seems, took effect on the 19th, but I cannot find any other verification that the suspension indeed happened. The State Department website is utterly mute on the subject. That said, President Trump may yet rescind the suspension as part of the Administration’s wholesale review of Cuba policy. Stay tuned here for more information as it comes out.]
Subchapter III of the Helms-Burton Act (22 U.S. Code § 6081 et seq., 1995) provides a private cause of action for parties whose property was expropriated by the Cuban government following the Castro Revolution in 1959. To be sure, the Cuban government is not the defendant. Rather, foreign persons who have profited from the expropriation are subject to suit.
A hypothetical, to illustrate: say the Hernandez* family has owned land in Cuba since 1898. After the 1959 Revolution, the land is seized by the Castro government, and the family flees to the U.S. Thirty years on, the land is given by the Castro government to Petróleos de Venezuela S.A., the Venezuelan national oil company, who builds a refinery on the land. (You may be more familiar with Citgo, the U.S. oil conglomerate which is owned by PDVSA.)
Under Helms-Burton, the Hernandez heirs have a statutory claim against PDVSA for its profits from that land, and if they can get the case into court, they can collect damages. But the Act is subject to suspension every six months by the President, and since 1995, they haven’t been able to get into court.
Bill Clinton suspended it immediately on enactment, George W. Bush suspended it throughout his two terms, as did Barack
Obama. The Donald Trump Administration, however, has not issued a suspension, so the door is currently open to the cause of action.
Aggrieved owners of Cuban property—like the hypothetical Hernandez family—may now file suits against the various individuals and companies around the world who have benefited from the expropriations.
But contrary to a quick read of Helms-Burton, there is no special method of serving the defendants, no matter where they may be. Rule 4(f) still controls the manner, but it is affected by two other pieces of federal law: the Foreign Sovereign Immunities Act (FSIA) and the Hague Service Convention (HSC).**
Rule 4 provides the general framework for service of process in federal actions. Helms-Burton does not effect its structure. Of greatest import is 4(f)(1), which specifically names the Hague Service Convention as the appropriate channel to serve a defendant in another Hague country. Frankly, this tacitly codifies the 1988 Schlunk decision, in which Justice O’Connor and eight of her colleagues (do the math there) mandate such Hague application. Even more frankly, the language of 4(f)(1) does not go far enough to reflect the Convention’s mandatory character. But that doesn’t mean it goes away.
The service provisions of 28 U.S.C. §1608 provide a hierarchy of steps necessary to serve foreign governments and their instrumentalities.*** This code section, too, refers to the HSC, though not by name, in requiring service “in accordance with an applicable international convention on service of judicial documents”. 1608(a)(2) and 1608(b)(2). Again, under Schlunk, the HSC is mandatory where it applies, so FSIA doesn’t have any real effect.
There’s really not much to say here. If the Convention applies, follow it—neither Helms-Burton nor the FSIA purport to abrogate it.
In our hypothetical, PDVSA must be served via the Central Authority (yeah, good luck with that) or by a Venezuelan judicial officer (a bit more likely , but still doubtful). That’s it. You can’t mail it, because Venezuela specifically objects to HSC Article 10(a). You can’t send a guy to the general counsel’s office because they don’t define the terms of 10(b) or 10(c)—you have to approach the matter as if the action is filed in a Venezuelan court.
Elsewhere, be it in China or Vietnam or Russia or other countries that have historically enjoyed good relations with Cuba since 1959, Hague doctrines must be observed. As you might expect, this means different things in different jurisdictions. (Give us a shout to discern those different things.)
* The name Hernandez is chosen here solely for illustrative purposes, owing to its commonality among Cubans. This doesn’t refer to specific persons at all. Citgo and PDVSA, though real entities, are likewise chosen solely for illustrative purposes.
** Yes, the Convention is U.S. law. Don’t make me throw the Supremacy Clause at you again, pal.
*** For a more thorough discussion of service abroad under FSIA, see The Foreign Sovereign Immunities Act’s Crippling Effect on United States Businesses, in the Michigan State International Law Review.