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Experts debate enforceability of ICC ruling against Cuba.

The International Chamber of Commerce (ICC) has ruled in favor of Max Marambio in his $153 million case against the Cuban government, but can the decision really be enforced? And just what is the ICC?

Following that ruling, Marambio told Chilean media that the ICC was the most neutral forum to resolve not only his dispute with Raul Castro's regime, but any foreign company that has a legal controversy with Cuba.

To stress how seriously he took that battle, Marambio hired three prominent Santiago lawyers to represent him: Juan Pablo Hermosilla, Manuel Jose Vial and Jorge Guzman.

"ICC awards are generally enforceable by virtue of the so-called New York Convention of 1958," said Dyala Jimenez Figueres, a professor of international commercial arbitration at the Universidad de Chile's law school.

"More than 140 countries have ratified this convention," she said. "In that sense, if the country where the award is sought to be enforced has ratified the New York Convention, that country's judiciary must enforce it."

Elina Mereminskaya, special counsel at the Santiago Chamber of Commerce's Arbitration and Mediation Center, said "Cuba is also a signatory [of the New York Convention] but it would be completely illusory to aspire to obtain the enforcement of that award in Cuba."

She noted that the real issues are "to know where Cuba has assets of a commercial nature, as opposite to those used for sovereign and diplomatic activities, and to be sure that the state where the enforcement is sought recognizes such a distinction [de jure gestioni vs. de jure imperii] and would be open to order the enforcement in the first of the two cases."

But Mereminskaya said Chile isn't one of those cases.

"Here, state immunity from enforcement is a rule with no exceptions," she said, noting that there's usually no appeal against arbitral awards, "just a possibility to get it annulled for severe shortcomings." So, theoretically, the Cuban regime can't appeal the ICC decision.

Even so, Marambio's legal team now must figure out how to collect that award.

As time has shown, it's been difficult enough for U.S. plaintiffs to collect on favorable civil judgments they've won against the Castro regime. However, at least some plaintiffs have managed to get Cuban assets frozen in the United States allocated to them, in part from U.S. telecom payments originally destined for Cuba. It's questionable whether Marambio can do the same, say in France, where the ICC decision was rendered.

For now, though, the Chilean wheeler-dealer is content with his moral victory against Raul Castro. Marambio told the Santiago daily newspaper La Segunda that the Cuban government's anti-corruption scandal will hurt that country's economy in the long run.

"It is a shame, because Cuba needs foreign investment, and with this [campaign], it will scare that away)," he said.

The ICC decision, though, has no impact upon Cuba's criminal action against Marambio, which still stands. Nevertheless, attorney Hermosilla told the Santiago newspaper La Nacion that Cuba's request to Interpol was for show, since such orders are issued in "cases where the person that's being investigated cannot be found"--which is clearly not the case with Marambio.

According to him, the correct course of action for the Cubans would be to seek an extradition request from the Chilean authorities through that country's Supreme Court.
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Title Annotation:International Chamber of Commerce
Author:Echevarria, Vito
Geographic Code:3CHIL
Date:Dec 1, 2012
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