By Steven M. Harper, Esq – Cuba Journal Op-Ed Contributor
In May of 2015, some of my law partners and I traveled to Havana for the purpose of meeting with Cuban attorneys and learning something about the Cuban legal system. We spoke with a variety of lawyers, some who worked as members of a “colectiva” and practice in areas such as intellectual property and business law, and others who were “independientes,” or those who were not connected to a “colectiva.” “Independientes” are barred from appearing in court on behalf of their clients for one reason or another.
One interesting fact we learned during our travels was that, apparently, Cuban lawyers do not choose to become such; rather, their careers are chosen for them by the government. Upon graduation from high school, Cubans take a national exam and their performance thereon plays a factor in where they go from there. But their career is not the sole determinant. Their gender also plays a role. According to one lawyer with whom we spoke, the Cuban government apparently believes that men are better suited for other careers, such as engineering, while women are better suited to be lawyers. This is evidenced by the fact that roughly 2/3 of all students currently attending law school in Cuba are women.
Something else we learned was what happens after graduation from law school. One Cuban lawyer we spoke with was asked his opinion on the judiciary in his country. He replied that the judicial system was inherently flawed. As illustration he explained that upon graduation from law school, those at the top of the class are appointed as prosecutors, while those at the bottom are appointed as judges. The result is that many Cuban judges commence their careers inexperienced in the nuances of the law, while others may not have the superior intellectual competence which are expected from judges in most other countries.
Another fascinating discovery relating to Cuban laws related to their new Decree Law 118, the law designed to attract more foreign investment. Among the components of this new law is that it allows for the parties to a contract to insert dispute resolution provisions into their agreement that could provide for, as an example, international arbitration, which would take place in a venue such as the International Chamber of Commerce in Paris or the London International Court of Arbitration. With regard to commercial disputes, one attorney advised that they are actually rare in Cuba. This is because, he explained, the foreign investor will enjoy a monopoly protected by the state and would thus be making a substantial profit and therefore is not likely to have a problem with his or her Cuban counterpart. We asked if any foreign investor has ever brought suit against the Cuban government, and he replied that, yes, it has happened. We then asked if the Cuban government has ever lost such a case, and he advised, again, in the affirmative. He was then asked if the Cuban government had ever honored such an adverse award. He was able to cite to one case; we found out later, however, that although the Cuban government lost the arbitration it later won on appeal, so was not obligated to make any payment to the opposing party. In sum and substance, therefore, we were not able to confirm a single case whereby the Cuban government honored an award decided against it.
Perhaps the most important thing we learned was the fact that Cuban attorneys are required to place the interests of the Cuban government ahead of the interests of their clients. This is made clear in Article 5 and Article 62 of the Cuban Constitution, which together provide that the Communist Party of Cuba “is the superior leading force of society,” that “none of the freedoms recognized for the citizens can be exercised against norms established by the Constitution and the laws,” and that “violation of this principle is a crime punishable by law.” We asked one of the attorneys how he can properly advise his clients under those circumstances and he replied that he is able to sleep at night knowing that he has fully explained the law and the risks involved, and if the client still chooses to proceed, then that is on them, not him.
Upon the conclusion of our visit, I reflected on everything that our group learned there. While the Cuban and U.S. legal systems are vastly different, one important similarity is that the Cuban attorneys with whom we met were all passionate about their work. And I am hopeful that, as U.S. and Cuban relations continue to expand, the Cuban legal system will adapt accordingly to continue to attract foreign investors.
Steven M. Harper is a partner at the Miami law firm of Harper Meyer Perez Hagen O’Connor Albert & Dribin LLP. His practice area is focused on international commercial and corporate law, with a particular emphasis on aviation transactions.
Note: the opinions expressed in Cuba Journal Op-Eds are those of the author and do not necessarily reflect the views of the Cuba Journal.