Facts of the Case
This case involves Exxon Mobil Corporation’s claim to property confiscated by the Cuban government decades ago. Exxon, through its predecessor Standard Oil Company, owned several subsidiaries in Cuba, including Esso Standard Oil, S.A. (Essosa), which operated oil and gas assets like a refinery, product terminals, and over 100 service stations. In 1960, following Fidel Castro’s rise to power, the Cuban government confiscated these assets without providing compensation. The assets were subsequently transferred to Cuban state-owned enterprises, including Unión Cuba-Petróleo (CUPET), the state oil company, and Corporación CIMEX S.A. (Cuba) (CIMEX), a conglomerate. In 1969, the U.S. Foreign Claims Settlement Commission (FCSC) certified Standard Oil's loss at over $71 million, plus interest, due to the confiscation. In 1996, Congress passed the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act, also known as the Helms-Burton Act, which created a private right of action in Title III for U.S. nationals to sue any “person” who “traffics in” their confiscated property, explicitly defining “person” to include an agency or instrumentality of a foreign state. Although every President suspended this right of action until May 2, 2019, President Donald Trump’s administration then allowed the suspension to lapse, and Exxon filed its lawsuit that same day.
Exxon’s complaint names the Cuban instrumentalities CIMEX, CUPET, and Corporación CIMEX S.A. (Panama) as defendants, alleging they continue to traffic in the confiscated property through commercial activities such as refining oil and operating service stations that process remittances and sell imported goods.
The Cuban defendants moved to dismiss the suit for lack of subject matter jurisdiction, asserting immunity under the Foreign Sovereign Immunities Act (FSIA). The district court held that the Helms-Burton Act did not independently abrogate foreign sovereign immunity and that the FSIA’s expropriation exception did not apply, but found that the commercial-activity exception was met for CIMEX. The U.S. Court of Appeals for the D.C. Circuit agreed that the Helms-Burton Act did not displace the FSIA and that the expropriation exception was inapplicable, but vacated the ruling on the commercial-activity exception and remanded for further jurisdictional discovery.
Questions
Does the Helms-Burton Act abrogate foreign sovereign immunity in cases against Cuban instrumentalities, even if the parties do not satisfy an exception under the Foreign Sovereign Immunities Act?
Conclusions
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The Helms-Burton Act of 1996 strips Cuban government agencies and instrumentalities of their foreign sovereign immunity without requiring plaintiffs to separately satisfy any exception under the Foreign Sovereign Immunities Act (FSIA). Justice Brett Kavanaugh authored the 6-3 majority opinion of the Court.
Four interlocking features of the Helms-Burton Act establish this result. First, when Congress creates a cause of action that expressly names sovereign entities as defendants, it waives their immunity without a separate waiver provision—and the Helms-Burton Act does exactly that, defining "person" (a potential defendant) to include "any agency or instrumentality of a foreign state." Second, Congress does not enact self-defeating laws. The FSIA's most relevant exceptions require plaintiffs to prove that Cuban entities engaged in commercial activity inside the United States, but the Helms-Burton Act simultaneously codified an embargo barring nearly all U.S.-Cuba commercial activity, making those FSIA exceptions virtually impossible to satisfy. Requiring plaintiffs to clear that barrier would reduce the Act's cause of action to a near-nullity.
Two additional statutory features reinforce this reading. Third, the Helms-Burton Act routes suits through 28 U.S.C. §1331—the general federal-question statute—rather than §1330, the FSIA's own jurisdictional provision. Since Congress knew both provisions existed and deliberately chose §1331, suits under the Act fall outside the FSIA's framework entirely. Fourth, the Act grants the President broad authority to suspend lawsuits under it based on national security and foreign policy grounds, recreating the pre-FSIA system in which the Executive Branch—not courts—controlled foreign sovereign immunity decisions. Reading the FSIA on top of the Act would simultaneously subject those same suits to a court-controlled immunity analysis that would block nearly all of them, directly contradicting the President's authority to allow them to proceed.
Justice Elena Kagan dissented, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, arguing that the Helms-Burton Act contains no language abrogating sovereign immunity, that Congress deliberately dropped a proposed FSIA amendment that would have done so, and that the cause of action remains fully functional without an implied abrogation because the Act's primary purpose was to deter private investors—not Cuban government entities—from profiting off confiscated property.
