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Trump vs Cuba: Helms-Burton is not the end

| News | Cuban Desk

Ignacio Aparicio analyses the diverse measures of great significance against Cuba by the Trump Administration for the newspaper Expansión

On Wednesday, April 17, the anniversary of the failed U.S. landing in the Bay of Pigs, the Trump government announced several far-reaching measures against Cuba and those who do or intend to do business with it.

The measures, disseminated through various channels by the State Department (tweets, press conferences and finally official press release), involve a set of provisions among which the end of the total suspension of Title III of the Helms Burton Act, this May 2, stands out.

As it is known, this title will allow Americans deprived of their property by the Cuban government after the Castro revolution to sue for damages before the U.S. federal courts those who, consciously and voluntarily, may be making use of those assets or benefit from them ("trafficking", a concept broadly defined in the law itself).

In addition to Title III, Title IV of the Helms-Burton Act will be fully effective; it was also announced that clear steps will be taken for its implementation, denying U.S. entry visas to businessmen, directors, shareholders and relatives of foreign entities that trafficked with the confiscated/nationalized properties, and could be expelled from U.S. territory. 

Previously, the EU had sent the State Department a harsh notification announcing actions, should the suspension of Title III be lifted, consisting essentially of a complaint against the US before the World Trade Organisation and a reminder that, under the doctrine of the Blocking Statute (Council Regulation 2271/96), judgments rendered in application of said Title III might not be subject to recognition and enforcement in Europe. In the same way that the affected companies and individuals are fully entitled to claim from the US Helms Burton plaintiffs for damages suffered before the EU courts.

In addition, Canada, one of Cuba's main trading partners, amended its specific Foreign Extraterritorial Measures Act to block the enforcement of judgments rendered under Title III.

In addition to the defence mechanisms that Europe, Canada or the rest of the affected countries may carry out, there is the legal complexity that the application of this Title will cause for the first time after more than 20 years enacted and that the large corporations being sued will bring to trial: for example, how trafficking will be interpreted in view of the breadth of its legal definition; how the need for it to have been carried out consciously and voluntarily ("knowing" and "intentional") will be considered; how the foregoing will be proven and the degree of intentionality required; to what extent the federal courts themselves will apply an extraterritorial rule, despite Helms Burton's own mandate to disregard the doctrine of State Acts; how they will apply the mechanisms of summons and discovery to defendants given the doctrine of the Blocking Statute, etc.

The legal battle will be highly contested, as will the diplomatic one, a route that, given Trump's well-known determination, seems complicated to be able to prosper. Also the political battle, since Trump, with his eyes on the 2020 elections and his fight against the nations close to Venezuela, will not take a step back but will probably continue to reinforce the economic, commercial and financial blockade of Cuba, considering also that his voters in Florida will support measures of great firmness.

Trump's package of measures also includes others that will also require regulatory development, but whose first sufferers will not necessarily be foreign individuals or companies that "traffic" in confiscated goods. Thus, The White House has announced that it will enact new regulations restricting Americans to travel to Cuba for non-family reasons. Currently, Americans could only travel to Cuba under certain assumptions, which primarily include group travel for so-called "people-to-people" contact, cultural or educational purposes. Such visits will be further limited, impacting the island's currency inflow. 

Another measure is that limitations on remittances from the U.S. to Cuba - initially at $1,000 per person per quarter - will be re-established. During the Obama administration, limits on such remittances were lifted. Given the importance of such remittances for some families living on the island, Trump’s policy would not only seek to isolate Cuba by addressing the discouragement of foreign investment.

Finally (and for now), two more measures were announced: five entities will be added to Washington's black (and open) list, the Cuba Restricted List, a list of more than 200 Cuban entities with which U.S. citizens are prohibited from making transactions, and the authorization issued by Obama in his day for Cuban companies and banks to carry out transactions in third countries that were indirectly carried out through the U.S. banking system will be eliminated.

You can download the full article at Expansión

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