This Article analyzes some of the major Cuban and international legal issues confronting U.S. and Cuban claimants whose property was expropriated by the Cuban government. Part II reviews the history of the Cuban nationalizations and examines the historical development of the property protection provisions of the Cuban Constitution. Part III analyzes the implications of deciding which Cuban legal system should apply to the claims of expropriated property owners.
Part IV discusses the legal and procedural barriers to recovering expropriated property, focusing upon international law of claimant eligibility, abandonment of property, and compensation to expropriated investors. This Part also analyzes both the relevant rules of Cuban property law and the laws enacted by other post-socialist governments to address the claims of expropriated property owners. In addition, the authors discuss policy options, available to a future Cuban government, which would enable former property owners to receive some form of compensation.
Part V recommends that, for the most effective and equitable resolution of the property claims of Cuban and U.S. claimants, the Cuban and U.S. governments should agree to submit all such claims to an international arbitration tribunal. The two governments could authorize such a tribunal to adjudicate all Cuban and U.S. claims based upon rules of public international law and those domestic laws the tribunal deems appropriate. Such an agreement could provide expropriated Cuban and U.S. claimants with some realistic chance to recover compensation. To enter such an agreement, however, the U.S. government would have to negotiate with a government that it currently does not officially recognize. As recent events have shown, the United States is willing to negotiate secretly with Cuba but avoids public exposure due to the political unpopularity of negotiating directly with the Castro regime. Because any resolution to the thousands of property claims will necessarily involve public scrutiny, U.S. policy makers will have to decide when the benefits of undertaking official negotiations with Cuba outweigh the political criticism that will accompany negotiations. This Article argues that whenever such negotiations begin, the most efficient and equitable resolution of expropriated property claims will be brought about through a Cuban-U.S. claims tribunal.