[UPDATE, May 3, 2019… The tsunami now begins. Title III of the Helms-Burton Act has been implemented.]
With all the fanfare this month over the government shutdown and the Kansas City Chiefs’ coin-toss defeat in the AFC Championship, a little-noticed story out of the Trump Administration could prompt a tsunami of litigation (yeah, I’ve wanted to use that expression for a while now) against offshore companies doing business with Cuba. I withhold comment here about the broader ramifications of such suits,* but an important element of the puzzle lies squarely within my wheelhouse, and it bears discussion.
Title III of the Helms-Burton Act (HBA) allows U.S. litigants whose Cuban property was expropriated following the 1959 Revolution– for the most part native Cubans who’ve emigrated north– to sue entities who have profited from that expropriated property. An example: let’s say “Autohersteller GmbH“, a fictional German carmaker, wants to develop a parts plant outside Havana, and the Cuban state grants a 99-year lease to the land on which they build it. Prior to 1959, the plot of land was owned by a group of citizens loyal to President Fulgencio Batista; after his overthrow, the Castro government seized the land and title thereto.
Sixty years later, those citizens and their kids now live in Fort Lauderdale, and if the Trump Administration reverses a quarter-century of waivers, they’ll be marching into the United States District Court for the Southern District of Florida and filing suit. Not against the Cuban government– there’s no realistic mechanism for that.**
Instead, they’ll be suing Autohersteller GmbH for damages under Helms-Burton. Again, set aside any discussion of the practical impacts of the statute; but recognize that the only proper way to serve that company in Germany is by filing a Hague Service Request. HBA establishes a cause of action (and, necessarily, jurisdiction) but does not override the procedural rules applicable to serving overseas defendants. It does not supersede the mandatory and exclusive nature of the Hague Service Convention. And it does not dispense with the defendants’ due process right to proper notice.
Plaintiffs, do it the right way, and remove at least one obstacle to an eventual verdict.
* Just Google “Helms-Burton III” to see much debate on the issue. It’s a doozy.
** Cuba is not party to the Hague Service Convention, and it’s highly doubtful that Cuban courts would entertain Letters Rogatory in such a case anyway. Service can still be effected by diplomatic note under the Foreign Sovereign Immunities Act, but the Cuban government may have a pretty compelling argument against jurisdiction under customary international law. Regardless, they would have to be served in order for that discussion to ripen.