Wednesday, May 13, 2015

International Business Council

May 2015
Letter from the Council
Dan Guadalupe, Esq., Norris McLaughlin & Marcus, P.A.
Guest Writer
908-252-4274 •
US-Cuba Business: Stay Tuned

I recently attended a seminar of the Statewide Hispanic Chamber of Commerce of NJ on “Doing Business in Cuba.” It was quite informative. Surprisingly, two delegates to the Cuba Permanent Mission to the UN attended, briefly spoke and answered questions from the audience. A lively debate ensued - lively is perhaps understated. A Jersey-based Cuban-American developer asked a critical question:  what assurances can you give me that my investment will be protected?  Missing the gist of the question, the given answer was that Cuba is safer than America. The answer missed a fundamental concern later unsuccessfully tackled in the ensuing high-decibel, flailing-arms discussion: how do I get paid and what happens if I am not?

For all the excitement and diplomatic breakthroughs, the change in US-Cuba relations is still a long way from materializing into the pot of gold at the end of the rainbow some predict.  As an international business lawyer and arbitrator, I remain cautious because of (a) the lack of a middle class with a robust pocket to pay (or guarantee payment) for any goods or services offered by small to medium-sized American businesses; and importantly, (b) the lack of an independent judicial system which would give us assurances that the rules of commercial law, long-standing since the British ruled the world, would be honored and respected.  One sliver of hope in the legal sense is that both the U.S. and Cuba are signatories to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which makes arbitration awards enforceable in both countries. The relevant question will be whether your customer in Cuba will agree to arbitration under that Convention.  Stay tuned!

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