Suing Cuban Instrumentalities Under the Helms-Burton Act

Under the Foreign Sovereign Immunities Act (FSIA), the agencies and instrumentalities of foreign states are generally immune from suit in U.S. courts unless one of the FSIA’s exceptions applies. But this past June, in Exxon Mobil Corp v. Corporación CIMEX, S.A. (Cuba), the Supreme Court held that the Helms-Burton Act abrogates the sovereign immunity of Cuban agencies and instrumentalities for suits brought under that Act. (For more on CIMEX itself, see here.)

U.S. companies with claims against Cuba wasted no time taking advantage of CIMEX. On July 29, the Cuban Electric Company (CEC), which formerly owned a large part of Cuba’s electricity and natural gas distribution systems, filed a complaint for trafficking in confiscated property against Unión Eléctrica (UNE) and Energas S.A., Cuban instrumentalities that use these distribution systems today.

On September 25, Judge John D. Bates (District of the District of Columbia) denied CEC’s motion for alternative service, which sought authorization to serve the defendants by mail, care of the Cuban embassy in the United States, reasoning that this would violate the embassy’s inviolability under the Vienna Convention on Diplomatic Relations (VCDR). This post considers the challenges that plaintiffs face with respect to service and personal jurisdiction in bringing Helms-Burton Act claims against Cuban instrumentalities.

Service of Process

Section 1608 of the FSIA sets forth the required means for serving foreign states and their agencies or instrumentalities. Section 1608(a) governs service on foreign states, while 1608(b) governs agencies or instrumentalities. Section 6082(c)(2) of the Helms-Burton Act, specifically requires that service on an agency or instrumentality of a foreign state conform to § 1608. The complaint alleges that both UNE and Energas are instrumentalities of Cuba. (I have my doubts about Energas because, according to paragraph 21 of the complaint, Cuba does not directly own a majority of the company as the FSIA requires.)

Section 1608(b) divides the means of serving agencies and instrumentalities into three tiers, which must be attempted in order:

(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; or

(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated to give actual notice, by delivery of a copy of the summons and complaint, together with a translation of each into the official language of the foreign state—

(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or

(B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the agency or instrumentality to be served, or

(C) as directed by order of the court consistent with the law of the place where service is to be made.

Judge Bates found § 1605(b)(1) inapplicable because there was no special arrangement for service between CEC and the defendants. He similarly found § 1605(b)(2) inapplicable because the defendants have no agents for service of process in the United States and Cuba is not party to any international convention on service.

Turning to § 1605(b)(3), Judge Bates noted that CEC could not seek direction from Cuban authorities because Cuba has criminalized providing assistance to anyone bringing a Helms-Burton Act claim. He also noted that neither the U.S. Postal Service nor DHL, Federal Express, and UPS currently deliver mail to Cuba. That leaves § 1605(b)(3)(C), which allows the court to order alternative means of service if the means is “consistent with the law of the place where service is to be made” and is “reasonably calculated to give actual notice.” Judge Bates found that service through Cuba’s embassy met neither requirement.

Because Cuba’s embassy is located in Washington, D.C., Judge Bates reasoned that the United States is the place where service would be made. Both the United States and Cuba are parties to the VCDR, Article 22 of which provides that “[t]he premises of the mission shall be inviolable.” As the Supreme Court noted in Republic of Sudan v. Harrison (2019), the U.S. State Department has long taken the position that Article 22 precludes mailing process to the embassy of a foreign state. “That plaintiff seeks to effectuate service on foreign instrumentalities, rather than on a foreign state,” Judge Bates reasoned, “does not make this service method any less an intrusion on the premises of the Cuban Embassy.”

Nor would service through the Cuban embassy be “reasonably calculated to give actual notice.” “[P]laintiff does not explain,” Judge Bates continued, “how mailing service papers to the embassy in Washington, D.C. is reasonably calculated to provide actual notice to two entities that are based in Havana, Cuba, are wholly or partly owned by Cuba or by its state-owned companies, and perform completely different functions than the embassy does.”

Judge Bates left it open for CEC to propose a different service method. One possibility might be email. Emails directly to the defendants might be better calculated to give actual notice. Of course, the requirement that the means of service be “consistent with the law of the place where service is to be made” remains, but Article 177.1 of Ley 141/2021, Código de Procesos provides: “Summonses, notifications and other acts of procedural communication may be carried out by digital, electronic or any other means as regulated.”

If service by email were prohibited by Cuba law, that would preclude such means for serving UNE, because the FSIA plainly requires service consistent with the law of the place where service is to be made. But it might not prohibit service by email on Energas. As noted above, Energas may not in fact be an instrumentality of Cuba because it is not directlymajority owned by a foreign state, which the Supreme Court held is required in Dole Food Co. v. Patrickson (2003).

With the FSIA out of the way, CEC could ask Judge Bates to authorize service by email on Energas under FRCP 4(f)(3), which allows service “by other means not prohibited by international agreement, as the court orders.” The Hague Service Convention (about which Maggie Gardner and I have written so much) is not relevant here because Cuba is not a party to that Convention. And the D.C. Circuit has held that “district court retains discretion under Rule 4(f)(3) to authorize service even if the alternative means would contravene foreign law.”

Personal Jurisdiction

Of course, service, by itself, will not establish personal jurisdiction. In its complaint, CEC offers four theories of personal jurisdiction, several of which depend heavily on the Supreme Court’s decision in Fuld v. Palestine Liberation Organization (2025), holding that the Fourteenth Amendment’s limits on personal jurisdiction in state courts do not apply to federal courts under the Fifth Amendment. Although Judge Bates has not yet had to address personal jurisdiction, the challenges confronting each of CEC’s theories show how hard it may be to establish personal jurisdiction in Helms-Burton cases.

First, CEC argues that personal jurisdiction exists under FRCP 4(k)(1)(C), which provides that service establishes personal jurisdiction “when authorized by federal statute.” It is not entirely clear whether the quoted phrase applies to personal jurisdiction or to service. Helms-Burton does not address personal jurisdiction at all, so CEC must read this phrase as referring to service and read § 6082(c)(2) of Helms-Burton (which refers to service under the FSIA) as sufficient to meet it. Federal courts have in the past read provisions authorizing nationwide service of process as falling within the scope of Rule 4(k)(1)(C). But neither § 6082(c)(2) nor § 1608(b) of the FSIA authorizes nationwide service.

Second, CEC argues that personal jurisdiction exists under FRCP 4(k)(2), which provides that service establishes personal jurisdiction if the claim arises under federal law, the defendant is not subject to jurisdiction in any U.S. state, and “exercising jurisdiction is consistent with the U.S. Constitution and laws.” The Eleventh Circuit has held that Rule 4(k)(2) can be used for Helms-Burton claims subject to a Fifth Amendment reasonableness requirement. But as I noted in a post about the Eleventh Circuit decision, Rule 4(k)(2) does not reflect the “considered judgment” of Congress about personal jurisdiction, which the Supreme Court found so important in Fuld.

Third, CEC argues that the defendants are not entitled to Fifth-Amendment due process protections at all because they are Cuba’s alter egos and Cuba is not a “person” under the Due Process Clause. If this is true, one wonders whether service under § 1608(b) is proper at all; arguably the defendants would have to be served under § 1608(a), which covers foreign states.

Fourth, CEC argues that 28 U.S.C. § 1330(b) establishes jurisdiction. Section 1330(b) is part of the FSIA and provides that federal courts have personal jurisdiction over foreign states and their agencies or instrumentalities whenever they have subject matter jurisdiction under § 1330(a) and service has been made under § 1608. I have argued that § 1330(b) meets Fuld’s requirements and obviates the need for additional due process analysis. The problem for CEC is that applying § 1330(b) depends on applying § 1330(a), which grants federal subject matter jurisdiction when one of the FSIA’s exceptions applies. The exception to sovereign immunity on which CEC relies is not one of the FSIA’s exceptions but rather an implied exception created by the Helms-Burton Act. By eliminating the need for a Helms-Burton plaintiff to satisfy one the FSIA’s exceptions to immunity from suit, CIMEX also eliminates such a plaintiff’s ability to rely on § 1330(b) for personal jurisdiction.

Conclusion

CIMEX may have opened the door to Helms-Burton Act cases against agencies and instrumentalities of foreign states, but many hurdles remain. As Judge Bates’s decision illustrates, service of process may be a significant problem. Personal jurisdiction may also be hard to establish, depending on how broadly one reads Fuld. And, as Jackson Myers has pointed out, executing a judgment against Cuban instrumentalities may be extremely difficult even if these initial hurdles can be overcome.