Investment Treaty Arbitration in Cuba

Authors

Rafael Cox Alomar

Abstract

Not since the fateful days of the 1962 Missile Crisis, has Cuba commanded as much global attention as it does today. The 2014 diplomatic rapprochement between the United States and Cuba, not only did away with the last vestiges of the Cold War in Caribbean waters, but more importantly has coincided with a period of acute ideological effervescence in Havana. Even in the face of President Raúl Castro’s resolute commitment to the principles of the 1959 Revolution, it is more than evident that Cuba is in the midst of a transformational moment. And perhaps in no other area of the island’s institutional life are the winds of change as noticeable as in Cuba’s new ordre public with respect to Direct Foreign Investment (“DFI”).

Cuba’s immediate uncertainties, compounded by the rather piecemeal unfolding of its economic negotiations with the United States, places even more weight on the island’s capacity to attract and maintain a seamless stream of DFI. The quantity and quality of such inflow will, no doubt, depend on the credibility and cogency of Cuba’s legal superstructure.

It is precisely against this background, that this Article proposes an innovative reading of Cuba’s bilateral investment treaties (“BITs”), grounded on a comparative legal analysis that brings to the fore the intense, yet often unexplored, interactions between Cuban law, public international law and investment treaty arbitral jurisprudence.

Part I delineates the substantive elements of Cuba’s Foreign Investment Act of 2014, and more generally traces the evolution of Cuba’s legal superstructure since the emergence of the empresa mixta. Part II explores the penumbras of the dispute settlement mechanisms available in Cuban BITs. Part III provides a comprehensive analysis of the standard safeguards available to foreign investments and foreign investors operating in Cuban territory under the protection of a BIT. Part IV weighs in, both from a legal and policy perspective, on the normative lacunas and structural challenges besieging Cuba’s investment treaty landscape.

Recommended Citation

Rafael Cox Alomar, Investment Treaty Arbitration in Cuba, 48 U. MIA Inter-Am. L. Rev. 1 (2017)
Available at: https://repository.law.miami.edu/umialr/vol48/iss3/4