Politics/Law
Cuba Standard Monthly
As Title III activation looms,
lawyers move into position
|| by VITO ECHEVARRÍA
T
rump’s recent activation of Title III of the
Helms-Burton Act as of May 2 has encou-
raged lawyers to go after Cuba’s foreign
business partners.
10
Their target is the pool of international bu-
sinesses currently active in Cuba, consisting of
around 300 companies in joint ventures and a
handful of sole owners, led by Canadian mining
and energy concern Sherritt International, tou-
rism firms like Meliá and Iberostar, Accor and
Kempinski, food giant Nestlé, consumer products
manufacturer Unilever, along with airlines such
as Air Canada, Air France, KLM, Virgin, British
Airways and Lufthansa.
"If any Spanish company with
interests in Cuba sees itself
threatened, fined, warned,
the U.S. company promoting
this action shall suffer the same
punishment."
To no surprise, Spanish businessmen are
among the most alarmed, because of their strong
involvement in the Cuban economy, especially in
the tourism sector, as well as other areas such as
food exports. However, they feel confident enou-
gh to threaten retaliation.
“If any Spanish company with interests in Cuba
sees itself threatened, fined, warned, the U.S.
company promoting this action shall suffer the
same punishment,” said Xulio Fontecha, president
of the Association of Spanish Businesses in Cuba
(AEEC), speaking to Spanish news agency efe in
Havana.
Lawyers representing European and Canadian
companies are already mobilized for litigation be-
tween former property owners and investors over
“trafficking” in confiscated assets.
When an earlier wave of legal action threate-
ned to hit foreign companies in 1996, both the EU
and Canada took measures to bar enforcement of
Helms-Burton judgments in their jurisdictions. In
the EU, there is Blocking Statute Regulation (EC)
2271/96 of 22 November, enacted to counteract
the possible effects of Title III.
“They are also likely to rekindle the dispute be-
fore the WTO that was suspended in 1996 under
the assurance that the Helms-Burton act would
indefinitely be suspended,” said attorney José
María Viñals Camallonga, whose Madrid-based
office Lupicino International Law Firm advises
Spanish companies on their dealings with Cuba.
In the World Trade Organization dispute,
the EU argued that Helms-Burton violates U.S.
obligations under GATT, the General Agreement
on Tariffs and Trade. The EU requested to form
a panel of the Dispute Settlement Body (DSB)
under the WTO Dispute Settlement Understan-
ding (DSU), but then suspended proceedings. If
the EU restarts this process, the DSB panel would
review the alleged violations of GATT and issue
a report with rulings and recommendations if it
does find violations, according to
Viñals.
Meanwhile, Canada
has the Foreign Extrate- Viñals
rritorial Measures Act
(FEMA) and related or-
ders on the books.
"FEMA was updated
in 1997 to block
Title III specifically,
and similarly to
the EU Blocking
Statute,” Viñals
Camallonga
said.
The mere
existence 4
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Cuba Standard Monthly
of such statutes doesn’t seem to deter attorneys
from approaching former property holders intent
on pursuing Title III litigation.
The descendants of the Sánchez-Hill fami-
ly, for instance, could now choose to pursue
Helms-Burton court action against companies
linked to the properties covering 75 kilometers
of beachfront in Holguín province they used to
own before the revolution. Likewise, the Palm
Beach, Fla.-based Fanjul brothers of sugar fame
11 could choose to sue now. Their relatives, the Gó-
mez-Mena family, built the Manzana de Gómez
building near Old Havana during the early 1900s,
which was recently turned into the Gran Hotel
Manzana Kempinski, managed by the Switzer-
land-based luxury hotel group of the same name.
Nicolás Gutiérrez, a former attorney in Miami
with a long track record of representing Cuban
exiles with property claims, has been trying to
mobilize such claimants.
By the late 2000s, Gutiérrez — who was presi-
dent of both the National Association of Cuban
Landowners in exile and the National Association
of Sugar Mill Owners of Cuba — had attracted
about 350 Helms-Burton clients, including the
Sánchez-Hill family. He has identified corporate
targets — Spain's Meliá Hotels, Blau and Grubar-
ges, Germany's LTI and Maritim, Delta Air Lines
and Canada's Air Transat, and France's Accor,
Club Med and
Bouygues have
all "trafficked"
Nicolás Gutiérrez
Marcell
Felipe Still shot, Jaime Bayly Show
Sánchez-Hill property.
However, concerned about antagonizing U.S.
allies with investments in Cuba after Helms-Bur-
ton was enacted in 1996, Trump's predecessors
had routinely signed waiver after waiver every six
months, thus suspending Title III.
But now, the new president's disregard for
diplomatic and trade relations with Canada, the
European Union and Mexico, along with his
anger over Cuba’s support for Nicolás Maduro in
Venezuela, apparently influenced him to change
course on Helms-Burton.
The consolation prize Gutiérrez got during the
2000s was enforcement of Title IV of Helms-Bur-
ton, which denies U.S. visas to visiting executives
of foreign companies that do business using con-
fiscated Cuban assets.
The legal adviser says that due to his efforts,
Jamaican hotel chain Superclubs was forced to
withdraw from its management of a resort on the
Sánchez family’s beachfront property in Holguín
province in May 2004. But the Superclubs victory
remained the exception to the rule, as the U.S.
State Department under George W. Bush failed to
enforce Title IV with European investors, due to
the EU’s diplomatic clout with Washington, says
Gutiérrez.
Gutiérrez has not been eligible to practice law
in Florida since his state law license was suspen-
ded in 2012 over forgery of a legal document.
Despite that, Gutiérrez is still a force to reckon
for attorneys hired to counter Title III lawsuits. If
Miami news coverage and YouTube postings are
an indicator, he has built a solid following among
former property holders. 4
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Cuba Standard Monthly
Gutiérrez is also providing his expertise to a
small but determined team of Miami-based law-
yers who are representing Cuban exile claimants
– some of whom have already surfaced to plead
their case to local media outlets. One such law-
yer is Marcell Felipe, who says he is representing
a Cuban exile family that once owned land now
part of José Martí International Airport in Ha-
vana. When he was interviewed by WLRN radio
in Miami about Title III this March, even Felipe
12 admitted that it would be difficult to collect U.S.
civil judgments from airlines and other potential
defendants.
Assuming attorneys like Felipe are unable to
extract settlements from Canadian and European
companies, they may try to invoke Title III with
U.S. companies. Even though Title III shields
companies providing licensed travel services,
Felipe may try to sue U.S. airlines that fly in and
out of Havana such as American Airlines, JetBlue,
and Delta on behalf of his client.
Obama’s 2014 rapprochement with Havana
created this potential pool of Title III targets
when the U.S. Treasury Department’s OFAC
issued permits to various U.S. companies to do
business with Cuba, including Starwood Hotels
— which currently manages one hotel in Havana
— tech giant Google, and online lodging provider
Airbnb, along with U.S. airlines, and Miami-ba-
sed cruise giants Carnival, Royal Caribbean and
Norwegian Cruise Lines.
That deep-pocketed U.S. firms could also be
targets of litigation is not lost on lawyers.
“Any company engaging in transactions in
Cuba, if the elements of the law are met, can be
sued under Title III,” said Washington attorney
Jason Poblete. And it is not just Title III, warns
Poblete. Along with Helms-Burton, other laws
such as the Alien Tort Statute could apply to alle-
ged unfair labor practices in Cuba, he suggests.
There are also new sanctions laws that did not
exist when Helms-Burton was enacted that may
apply to Cuba, such as the Global Magnitsky Act,
under which plaintiffs may have U.S. courts freeze
the assets of human rights offenders.
Some prospective Title III defendants — as
certain companies have already done in the past
— may opt to reach out-of-court settlements with
property claimants. That may be a goal unto itself
with lawyers filing such litigation – a de facto
“tax” on doing business in Cuba.
“In Cuba, the alleged trafficker has a choice
to make: do business in Cuba or the United
States — or find another way
forward, such as pay the
claim holder a ‘right to
traffic’ fee,” said Poblete.
“Of course, this would
require U.S. government
authorization,” he added.

Jason Poblete
A
Why not Cuban courts?
s the Helms-Burton Act is opening up U.S. courts to
U.S. citizens presumably to solve property conflicts
in Cuba, some wonder why Cuban American claimants
should not be able to settle their property claims with the
Cuban government directly instead.
As noted by a Washington-based lawyer and
Helms-Burton expert, a major problem with the law was
that it was not designed to resolve disputes between
former property owners and the Cuban government.
Instead, it was intended to serve the U.S. government
objective of fomenting regime change in Havana.
“The collapse of the Cuban economy remains the prin-
cipal objective of Title III,” said Robert Muse.
In the view of Helms-Burton backers, such a collapse
of the system would then open the possibility of mass
restitution of commercial properties on the island back to
Cuban-Americans, including sugar holdings.
But in the meantime, due to the regime-change ob-
jectives, Cuban American claimants are not allowed a free
hand, under U.S. law, to independently negotiate com-
pensation claims with a government Washington wants to
overthrow.
“Under current law, in most cases, persons subject to
U.S. law cannot settle claims or potential claims directly
with the Cuban government or even third parties,” said
Helms-Burton legal expert Jason Poblete.
The Washington attorney notes that direct settlement
with Cuba requires U.S. government authorization through
the FCSC/Foreign Claims Settlement Commission, a
quasi-judicial, independent agency within the U.S. Depart-
ment. of Justice, which usually does not allow it. 
—Vito Echevarría