Every president since 1996 has suspended a provision in U.S. law that would allow Americans to sue Cuba over properties seized after the 1959 revolution.
Hardliners in the Trump Administration may change all that, allowing such lawsuits for the first time, a move that critics say would flood U.S. courts, damage the Cuban economy and alienate U.S. trading partners.
Title III of the Helms-Burton law would permit Americans to sue to try to recover confiscated properties. Paul Johnson, chair of the United States Agriculture Coalition for Cuba, told me he believes Title III is likely to go into effect unless those opposed to it speak up. He said:
I think Title III is seriously being considered, unless opposition is heard then its likely to be enacted. Right now I would put it at better than 50 percent chance they move forward.
Some American lawmakers are eager to step up the pressure on Cuba. Sen. Marco Rubio, R-Florida, on Friday said the U.S. government should do more to hold Cuba accountable for mysterious acoustic-related injuries that American and Canadian diplomats have reported in Havana. Rubio said in a statement:
The families of those affected and the international community deserve answers, and the U.S. should look at additional policy options to hold the Cuban regime accountable for the ongoing harm being done to foreign diplomats and their families.
Cuban authorities have said they don’t know the cause of the reported injuries and have cooperated with FBI agents who have investigated the incidents.
Johnson said in a statement:
In National Security Advisor John Bolton’s pre-election “Troika of Tyranny” speech, he made clear that the Administration is considering initiatives that will pressure Cuba to change its system of governance and permit democratic elections under international supervision.
Under consideration is to allow Title III of the Helms-Burton law to go into effect, and thereby to allow Americans and Cuban-Americans whose properties in Cuba were expropriated to sue for damages in U.S. courts. The lawsuits would be brought against parties, both U.S. and foreign, whose business activities in Cuba are connected to those expropriated properties.
This right of action was enacted in 1996 but Presidents of both parties have consistently blocked it from going into effect ever since through waivers issued every six months. The deadline for the next six-month suspension is February 1.
If no suspension is issued February 1, lawsuits could originate from U.S. nationals whose 5,913 claims were certified by the Foreign Claims Settlement Commission, and also from Cuban nationals who left Cuba after the revolution and subsequently became U.S. nationals.
Title III implications for agriculture:
- Claimants will file lawsuits and U.S. trading partners will protest and possibly retaliate against the extraterritorial application of U.S. law.
- I suspect Cuba would retaliate in some measure if Title III was permitted. We are trying to increase our exports and trade, this does not help.
- Lawsuits, the threat of lawsuits, and the climate of uncertainty created by these legal actions would severely harm Cuba’s investment climate. Some investors may pull out, and potential new investors will stay away. The Cuban economy will suffer.
- Americans seeking to enter authorized transactions to further the Administration’s own objectives, such as helping private agriculture cooperatives and the rest of Cuba’s private sector to grow, will be discouraged by the new legal risks.
- A WTO case is certain to come, and some trading partners may take retaliatory measures against U.S. companies operating outside Cuba. This extraterritorial application of U.S. economic sanctions will harm our trade relationships.
We encourage you to strongly oppose Title III as this impacts not only trade relations between the U.S. and Cuba, but potentially overspills into our relationship with trading partners globally. It is difficult to imagine any resolution to a claim brought against the Cuban government, and would only inundate our court system while further alienating trade relationships around the globe.