Lindsay Fortado | The National Law Journal
Lawyers in the United States are turning their thoughts to a new type of Cuba: one without Fidel Castro.
The Cuban dictator turns 80 this year, and he’s been in power for 47 of those years. While it’s impossible to predict what system of government or economy will form in a post-Castro Cuba, U.S. firms are getting ready.
“[Castro’s death] is an inevitability,” said Pedro Freyre, a partner at Akerman Senterfitt and the co-chairman of the Florida firm’s international practice group. “It will happen, and it will happen much sooner than much later. But that having been said, the what-ifs and the scenarios are complex.”
Among U.S. lawyers, there are at least two sources of interest in Cuba. Some—mostly Cuban-American attorneys with sentimental ties—want a hand in shaping the country’s legal system when the Communist regime falls.
Others view the island as a lucrative source of business, from tourism and infrastructure to oil and other industries. Canada, India, Norway and China are making investments in oil deposits recently found off the coast of Cuba.
IN LIMBO SINCE 1959
Legal work in Cuba will include “everything under the sun,” said Jose Sirven, a partner in Holland & Knight’s Miami office and a member of the firm’s Cuba action team. “That country’s been in limbo since 1959, so you have roadwork, water and sewer, refurbishing of buildings, basic needs of consumers—from toilet paper to soap, everything’s in short supply ... U.S. companies are going to want to enter the market immediately.”
When U.S. companies will be able to enter the market is up for debate.
The general sentiment among Cuban-American attorneys is a hope that a Democratic government will follow Castro’s Communist reign, but many admit to the possibility of a succession.
Castro has named his younger brother, Raul, next in line to take power, but other party leaders could also take over.
“The older members of the party will work very hard to keep their stranglehold on power,” Freyre predicted. “But the loss of Fidel is a huge loss; they lose their ace.”
But it is not Castro preventing U.S. businesses from investing in Cuba; it is the current administration enforcing a trade embargo.
“The market [in Cuba] is open to everybody,” said Kirby Jones, the founder of Alamar Associates, a consulting firm for U.S. companies looking to do business with Cuba, and the head of the U.S.-Cuba Trade Association.
“It’s really post-embargo, not post-Castro,” Jones said. “Cuba does business with everyone in the world; there’s foreign investment in every sector. Cuba is already open; we’re the ones who are closed.
“In terms of any fundamental change, it’s going to take a U.S. administration with a different approach,” added Jones.
If a democratic government is installed, new law will have to be created to guarantee investors that property rights will be respected, and the United States will have to lift the trade embargo with the island nation. Should there be a democracy, an end to the embargo appears likely, as it would benefit U.S. business.
“The laws have to be changed to do business in Cuba,” said Frank Angones, the president-elect of the Florida Bar beginning in 2007 and a partner at Angones, McClure & Garcia in Miami. “There will have to be some kind of opening in the market.”
Many attorneys are optimistic that the market will open, perhaps not immediately after Castro’s death but within the decade after. At that point, legal work should be plentiful.
“In places like Miami, probably Washington, certainly New York, practitioners ... are looking with close attention to Cuba and thinking, ‘What do we do to take advantage of the opportunities there?’ ” said Freyre. “We keep our eyes peeled on Cuba. Akerman has a very, very keen interest.”
So do other large U.S. firms.
“We’ve been preparing since over a decade ago,” said Holland & Knight’s Sirven. “It’s something we talk about. We want to be one of the first U.S. law firms there.”
In the mid-1990s, when Castro was in poor health, the firm created its Cuba action team to assess business opportunities on the island.
“We put a plan in place to go into the Cuban market and assist clients entering that market,” Sirven said. “We obviously haven’t used it.”
With other countries able to invest in the island, it appears that some U.S. companies are growing antsy.
In January, a meeting in Mexico City between Cuban government officials and U.S. oil executives from Exxon Mobil Corp. and Valero Energy Corp. was cut short when the delegation was forced to leave its American-owned hotel under pressure from Washington.
“That has caused an uproar and a pique of interest in Cuban relations,” said Sirven, who counsels clients on the current legal framework in Cuba.
There are currently several exceptions to the embargo laws, which include certain business transactions in the fields of telecommunications and agriculture, Sirven said.
“We have advised companies that had an interest in knowing more about those opportunities,” he said.
Jones has worked with law firms looking to do business with Cuba or dealing with embargo problems.
“There are always issues of what you can and can’t do,” he said. “Law firms get very active on this side helping clients with embargo-related issues.”
Economists at the National Summit on Cuba predicted that trade between the United States and the island nation could generate more than $50 billion and 900,000 jobs during a two-year period if the embargo were lifted.
Cesar Alvarez, president and CEO of Greenberg Traurig in Miami and a Cuban-American, said that he fields calls from companies inquiring about doing business with Cuba.
“About once a month I get a call from somebody saying we’d like to do something in Cuba, and they assume that because you’re sitting here in Miami that you can help,” Alvarez said. “But we don’t represent anyone trying to make investments in Cuba directly or indirectly.”
Law firms are actively monitoring the situation in Cuba, especially because so many U.S. businesses are eager to enter the market, Angones said.
“Most of the large corporations in the U.S. have a contingent plan, not just in Castro’s death but a change in the way that Cuba does business and whether private property is respected or not, whether you can buy land and buildings,” said Angones.
EYE ON THE WAL-MART PRIZE
Freyre, a Cuban-American, monitors the situation in Cuba daily and knows the business sectors that could produce the most lucrative work.
“Tourism is a solid prospect for the future. Cuba is very beautiful. It’s the largest island in the Caribbean,” Freyre said. “Add an element of exoticism, this has been the forbidden land for Americans, go explore it, and it’s very tempting.”
But tourism is not the biggest target.
“The golden ring is who represents Wal-Mart,” Freyre said. “But you can represent Halliburton when they build the airports, or you can represent Exxon when they try to get their oil fields back in the harbor.”
Freyre said that his knowledge of both Cuban and U.S. societies will give his firm an advantage in procuring lucrative work should the governments allow it. The firm beefed up its Washington office for lobbying work, which could also help Akerman’s prospects.
“I think once Castro moves on, the chances of things happening there will open up, but predicting what will ultimately happen is mostly speculation right now,” Alvarez said. “We certainly hope that democracy and capitalism would return to Cuba.”
Alvarez expressed more interest in helping to shape a new legal system in Cuba rather than to view the country solely as a business opportunity.
“My friends would be much more interested in [restructuring] the nonexistent legal system,” Alvarez said of the Cuban-American legal community. “Our focus will be much different than just what to do for financial gain when Castro’s gone.
“It’s going to be some time before significant private investments return after Castro,” he said. “There’s no legal system; the legal system is ultimately the Communist regime.
Freyre noted, “Here, I have to be loyal to my client, and my obligation is to defend my client.”
In Cuba, the mindset is “I work for the revolution, and everything I do for my client has to be for the revolution,” he said.
SYMPOSIUM IS PLANNED
Alvarez’s ideal is for a new Cuban legal system to be based on the American model.
“The ultimate key to get investments in a post-Castro Cuba is to duplicate what you have in the American [judicial] system,” Alvarez said.
“First, property rights have to be respected; two, rule of law and the respect of human rights, and not the whims of a dictator, must be the guiding principles; third, a truly independent judiciary must be in place,” he said.
Alvarez is not alone in his ambition to help Cuba rebuild its legal system. The Cuban American Bar Association is currently planning a symposium at the University of Miami School of Law, slated for June, to discuss the past, present and future of the legal system in Cuba.
“There’s just so much interest in this topic,” said Corali Castro-Lopez, the president of CABA and a partner at Kozyak Tropin & Throckmorton in Coral Gables, Fla. “This is the first seminar focused just on the [Cuban] legal system and what needs to be done.”
Some firms are eyeing the possibility of opening a Havana office should the opportunity arise.
“The proximity [of Cuba], the need for every conceivable product and equipment makes it a natural place to want to be,” Sirven said of opening a Havana office, noting that he couldn’t speak for his firm.
Freyre agreed, but was hesitant to say he’d return to his native land to live. “Most of us look at it. Would we like to be the ones designated to open the Cuban office in Havana? Heck yes, but I have no particular wish to relocate,” he said. “I’d only do it on a project basis.”
Alvarez also said that Greenberg Traurig would be interested in Havana, but he didn’t foresee any immediate action. “If there’s democracy in Cuba, we certainly would view Cuba to be a logical place for [Greenberg Traurig] to be, but I think that’s a few days away,” he said.
For many attorneys, the resounding sentiment is an eagerness to enter the Cuban marketplace, but an exasperation at the resilience of Castro.
“I remember in the mid-‘90s people thinking this fellow can’t last too long, and here we are 12 years later,” Angones said. “We can make educated guesses, but we can’t predict what the future will hold.”
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