Cuba and International Judicial Assistance

On Wednesday, President Obama announced that the United States and Cuba will normalize their relations. This announcement, the long-overdue release of American Alan Gross on humanitarian grounds, and the honorable exchange of three of the so-called “Cuban Five” for a US intelligence agent, show that despite the predictable fury from American hardliners on Cuba such as Senator Rubio and Senator Menendez, things can change for the better and we don’t need to keep repeating the mistakes our grandparents made forever. What a great message for this time of the year!

But enough about the politics. For now, the US embargo, which is the subject of several statutes, will stay in place, though one hopes the next Congress will take up reform measures when it convenes next month. Let’s look ahead to when American firms will be able to do business with Cuba. What legal infrastructure is already in place to help? There’s some good news here. Cuba, like the United States, is a party to the UN Convention on the International Sale of Goods. So in the absence of a specially negotiated choice of law provision, US and Cuban parties will be able to contract with each other against well-developed principles of international commercial law. Cuba is also a party to the New York Convention, and thus by means of an appropriate agreement, US and Cuban parties will be able to plan for the resolution of disputes in a way that does not require a US firm to resort to the Cuban national courts, or vice versa—at least unless it becomes necessary to obtain judicial recognition and enforcement of an arbitral award. So far, good news.

Unfortunately, Cuba is not a party to any of the multilateral conventions on judicial assistance that I write about: the Hague Service and Evidence Conventions or the Inter-American Convention on Letters Rogatory. Nor is it a party to the Apostille Convention. Thus service of process and taking of evidence in Cuba will remain difficult, and perhaps more difficult in the short term because of US lawyers’ lack of familiarity working in Cuba. On the other hand, I see no reason why, in the case of litigation pending in Cuba, litigants should not be able to take advantage of the United States’s liberal policies on service of process and taking of evidence.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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