CUBA Trends and Developments Contributed by: Martin Domb, Pedro A Freyre, Augusto E Maxwell and Christopher Carver, Akerman LLP
were not hers but, rather, those of the estates; (ii) she was asserting the claims as the estates’ per- sonal representative; and (iii) because the dece- dents acquired their claims long before March 1996, the claims were timely. The appellate court rejected these arguments based on Florida law, under which an heir acquires an estate’s property upon the death of the testator unless the will states otherwise. As neither will stated otherwise, Escalon acquired the claims when the decedents died, at which times the estates ceased to have any interest in the claims. There- fore, Escalon, not the estates, owned the claims, which were untimely because she acquired them after March 1996. Exxon – claims against Cuba state-owned entities potentially narrowed This case is unique in two respects. First, it involves claims against Cuba state-owned enti- ties and thus is essentially a lawsuit against the Cuban government. Helms-Burton suits gener- ally have involved claims against private com- panies, such as hotel operators, airlines, cruise lines, shipping companies, booking companies and credit card companies. Second, it involves a contentious difference of opinion among the judges on the three-judge appellate panel con- cerning the interplay between the Helms-Burton Act and the Foreign Sovereign Immunities Act (FSIA). Exxon sued three entities in the District of Columbia federal court: (i) CIMEX, which (among other things) operates hundreds of service sta- tions, (ii) its Panama affiliate, and (iii) CUPET, Cuba’s state-owned oil company. Exxon alleged that these entities traffic in properties Cuba con- fiscated from Exxon by using those properties to extract, import and refine crude oil, and by operating service stations selling the refined oil.
All three defendants moved to dismiss under the FSIA, arguing that they are immune from suit because none of the exceptions to immu- nity applies. The trial court deferred decision as to two of the defendants pending jurisdictional discovery, but denied the motion as to CIMEX. The appeal by CIMEX and a cross-appeal by Exxon, before the Court of Appeals for the Dis- trict of Columbia Circuit, concerned three trial court rulings that: (i) rejected Exxon’s argument that Helms-Burton confers jurisdiction over the Cuban entities independently of the FSIA; (ii) the FSIA’s expropriation exception did not apply and thus did not confer jurisdiction; and (iii) the FSIA’s commercial activity exception was satis- fied as to CIMEX and therefore that claim could proceed. In a 2-1 decision, the appellate court agreed with the trial court on the first two issues and remanded for further proceedings on the third. On the first issue, the court held that, as has long been recognised, the FSIA provides the only avenue for a plaintiff to sue a foreign state or its instrumentalities in a US court. “The upshot”, the court stated, “is that plaintiffs bringing [Helms- Burton] actions against foreign states must sat- isfy one of the FSIA’s exceptions, which is the same condition any litigant seeking to sue a for- eign sovereign must meet”. The dissenting judge disagreed, contending that Helms-Burton is itself a grant of jurisdic- tion that “deprives the Cuban defendants of immunity from suit”. His view is based on two premises: (i) statements by the Supreme Court and Circuit Courts that the FSIA is the only basis for obtaining jurisdiction over a foreign state or instrumentality are not binding or persuasive because none addressed the interplay between the FSIA and Helms-Burton; and (ii) the language
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