The U.S. Supreme Court will hear arguments on Monday in two cases to determine whether decades-old losses from Cuba can be obtained by two U.S. businesses.
Havana Docks Corporation v. Royal Caribbean Cruises and Exxon Mobil v. Corporacion Cimex challenged laws that allowed U.S. citizens to bring lawsuits against anyone who trafficked in property that was confiscated by the Cuban government on or after Jan. 1, 1959.
The law also gives the president power to suspend the right to bring a lawsuit when he has concerns over national interests and the transition to democracy in Cuba. President Donald Trump decided not to suspend the lawsuit in 2019.
Jordan Von Borken, senior counsel at the U.S. Chamber Litigation Center, said President Barack Obama’s loosened restrictions and Trump’s decision not to renew lawsuit suspension allowed U.S. companies to pursue legal action against Cuba.
However, in 2016, several cruise lines began using a set of docks that the Havana Docks company had interest in. The Cuban government took over operations of the docks in 1960. The cruise lines argued that, even without the government takeover, Havana Docks lost its interest in the property in 2004.
Havana Docks argued that the U.S. Congress should have focused on punishing the Cuban government for its communist takeover rather than the companies in Cuba that suffered under it.
“Havana Docks relies heavily on a purpose argument that Cuban expropriation of property was bad and Congress meant to punish not just the Cuban expropriators but also people who then economically benefited from that expropriation,” Von Borken said.
Von Borken estimated damage claims against the cruise lines could reach into the hundreds of millions of dollars, depending on how the issue is sorted by the U.S. Supreme Court.
In Exxon Mobil v. Corporacion Cimex, the argument is over the Cuban government’s 1960 seizure of oil and gas assets owned by Exxon. The Cuban government never paid Exxon after the takeover.
The case is to determine whether Exxon has to satisfy its claim against the Cuban government under the Foreign Sovereignty Immunities Act. The act determines whether a foreign state or its agencies can be sued in federal court in the United States.
Generally, foreign states are considered immune from U.S. court jurisdiction. However, a key exception to this immunity is in cases involving expropriation, similar to what the Cuban government did in 1960.
“The broader question [is] if you have a statute that seems like it creates damages claims for people who would otherwise be immune due to sovereign immunity, do you have to also satisfy the FSIA, which is what the DC Circuit said, or do you have a waiver of sovereign immunity right there in the statute, which is what Exxon says,” Von Borken said.
After justices on the court hear arguments in the case on Monday, they are expected to issue a decision by July.
