FocusOn Cubanear

By Ana Veciana-Suarez

It was a full house at the Miami Herald and El Nuevo Herald’s CEO Roundtable titled “The Future of Cuba — Investing and Tourism,” where panelists spoke about the opportunities and risks involved in investing in Cuba on Tuesday, Oct. 6, 2015. C.M. GUERRERO [email protected]

Exploring business potential on the Communist island has surged since December

The infrastructure is dated but so is the mindset

For now investors must get used to the state as the majority partner

Panelists at a CEO roundtable about the future of Cuba painted a mixed and ever-evolving picture of the opportunities — and risks — for businesses that want to invest in the Communist island.

“Cuba is like the Galapagos Islands,” Augusto Maxwell, chair of Akerman LLP’s Cuba practice told a standing-room only audience in the community room of the Miami Herald/El Nuevo Herald on Tuesday. He went on to describe a country in evolution, where what holds true today may not work tomorrow and where establishing a business remains a “very risky” endeavor.

But like other panelists in the morning program titled “The Future of Cuba — Investing and Tourism,” he said changes are occurring, though not as always as quickly or as efficiently as foreign investors would like. He pointed to the entry of Airbnb, the San Francisco-based company that launched its home-booking service in Cuba in April. Since it went live, Airbnb, has accumulated more than 2,000 listings, making it the fastest-growing launch in the company’s history.

But Airbnb’s entry into the island, Maxwell said, “was inconceivable a few years ago.”

Maxwell was among a group of Cuban experts — a lawyer, a bank president, an airline vice president, three travel and tourism executives and even a former U.S. senator — who debated the business potential on the island in a pair of panels that focused on investing and tourism in Cuba. Restrictions on both travel and business have eased since the Dec. 17 announcement by President Barack Obama and Cuban leader Raul Castro that the two countries would renew diplomatic ties and open embassies after half a century of frosty relations.

While the panelists steered clear of the political fireball that the recent rapprochement sparked in Miami, they all agreed on one theme: Cuba is still the great unknown. Those who venture there should be prepared to commit time, effort and capital without a clear or quick return on their investment.

Steven N. Zack, a partner with Boles, Schiller & Flexner and the first Cuban-American president of the American Bar Association, said he is often asked about the legal system in Cuba. His response? There is no legal system in Cuba because there is no due process and a businessman has to be willing to take a back seat to a government that acts as a majority owner in all enterprises.

He told the cautionary tale of a Canadian businessman who had invested on the island for almost two decades, until he was thrown in jail on corruption charges. The Canadian, Sarkis Yacoubian, spent more than two years in jail before being found guilty and expelled. His case is not unique.

“We know one thing for sure,” Zack said. “He didn’t get his business back. Raul Castro’s son-in-law did.”

He added that any time he asked a question of a Cuban lawyer during a recent law conference on the island, he never got a concrete reply. “The answer is always the same: Es muy complicado.” (It’s very complicated.)

Other panelists talked about the difficulties of dealing with an inefficient system that, even when trying its best, simply didn’t have the technology or infrastructure to meet business or tourism demand. Tessie Aral, president of ABC Charters, which has provided limited air and travel services to the island since 2000, said there aren’t enough hotel rooms to meet the surging demand. Casa particulares (or bed & breakfasts) have picked up on the demand.

But lack of rooms is only one of many obstacles, she added. Government bureaucracy is a problem, too, and any investor considering Cuba needs to “learn to work with their infrastructure but also their mindset.”

Cuba’s interest in opening itself up to the United States is all about economics. The island desperately needs about $2.6 billion a year in foreign investments. But, said former U.S. Senator Mel Martinez, opening the door “is not an invitation to business.” Martinez, who came to the U.S. as an unaccompanied minor in the Pedro Pan airlift, warned that the government rhetoric may havechanged but the rules of the game haven’t. He expressed dismay that the U.S. had made too many concessions.

“What did we give? What did we get? What should we have gotten?” he asked.

Zack compared the complicated relationship between the U.S. and Cuba — and their respective business interests — as a complicated dance in which the first step has been taken but the question remains: Do potential American investors truly have a partner in Cuba?

“My position is we should engage in the dance,” he said, “but we shouldn’t dance by ourselves.”

First published in The Miami Herald.

By Mimi Whitefield This article was first published in The Miami Herald.

Five or six major U.S. airlines are “eager” to begin scheduled service to the island, but after a second round of talks between the United States and Cuba on civil aviation matters this week, there’s still no timetable for when such service could begin, a U.S. State Department official said Thursday.

The U.S. and Cuba held talks on civil aviation matters Monday and Tuesday in Havana and had “a good, candid exchange of views,” the official said. The first round of aviation talks was held in Washington in March and it’s possible there will be a third round in coming months.

“U.S. carriers are generally eager” to reach an informal arrangement that would allow scheduled service to begin “as soon as possible,” said the official, who declined to be more specific.

The move is part of the Obama administration’s goal of providing broader travel between the United States and Cuba as the two countries work toward normalizing relations. Diplomatic ties were restored and embassies were reopened on July 20.

The official said that Cuba has made it clear it wants reciprocity — meaning it also would like its airlines to offer scheduled service to the United States.

However, that desire could be complicated by civil judgments in U.S. courts against the Cuban government. Filed by those who claim they or family members have suffered abuses at the hands of the Cuban government, the suits have been piling up — as have the judgments, to the tune of several billion dollars. The plaintiffs have won their cases by default because Cuba has chosen not to defend itself.

If Cuban aircraft fly to the United States, there is a danger the planes could be seized to satisfy judgments. “Yes, that is a theoretical possibility,” said the official. “The topic has come up.”

Once we get the green light to offer regularly scheduled service, we are ready to go.

Martha Pantin, American Airlines spokesperson.

The U.S. negotiators have been careful to make their Cuban counterparts understand there are “executive limitations” in helping on such matters, said the official. “I believe the Cuban side is very clear on what those limitations would be.”

Cuban leader Raúl Castro flew to New York last week to attend the United Nations General Assembly aboard a Cubana de Aviación plane, but it was a charter rather than a regularly scheduled flight.

“Nothing that I’ve heard indicates there’s been a solution to this,” said Washington attorney Robert Muse. “I’ve heard rumors of possible work-arounds, for example, [the Cubans] leasing a plane from a third party. But at the end of the day it seems that plane would also be subject to seizures and attachments.”

While the legality of using third-party aircraft was debated, such planes would likely be grounded, Muse said, delaying and complicating air travel between the two countries. “Miami would be particularly vulnerable to this because the bulk of these lawsuits emanate from Miami-Dade County,” he said.

Another scenario is that the “U.S. government could always file a statement of interest and seek to have the suits vacated,” Muse said. But that, too, could be a long process.

The State Department official said the two sides also discussed aviation safety and security, the U.S. regulatory environment and its impact on Cuban airlines flying to the United States, and the aviation infrastructure in Cuba.

The island currently has 10 international airports. As travel to Cuba increases, the official said, the Cubans are “mindful” of the infrastructure challenges and are working on them.

Meanwhile, several commercial airlines, including JetBlue and American Airlines, have been leasing their planes to U.S. charter companies that fly to Cuba under license from the U.S. Treasury Department.

Having a leased JetBlue or American plane on the tarmac in Cuba is like an advance calling card for commercial airlines interested in flights to the island. “They would also like to provide scheduled service themselves,” said the official.

“Once we get the green light to offer regularly scheduled service, we are ready to go,” said Martha Pantin, an AA spokesperson.

American Airlines planes are used on some 22 weekly charter flights to Cuba , surpassing any other carrier, she said. They serve Camagüey, Cienfuegos, Holguín, Havana and Santa Clara from Miami and Tampa, and American plans to begin charter service from Los Angeles to Havana in December.

Working with charter companies, JetBlue also has leased its planes for several Florida-Cuba routes, and it will begin a second flight from New York’s John F. Kennedy International Airport to Havana on Dec. 1.

Reaching an arrangement for scheduled service wouldn’t necessarily mean the end of Cuba charter service, said the official: “In no way are we trying to limit or restrict charters.” The intent, the official said, is to provide more choices to consumers.

By Chris Adams, McClatchy Washington Bureau

The Obama administration is working to finalize a change in U.S.-Cuba trade rules that experts called a major development that would significantly open the door to expanded business on the island.

Secretary of State John Kerry shakes hands with Cuban Foreign Minister Bruno Rodriguez prior to their meeting at the Foreign Ministry in Havana, Cuba, Friday, Aug. 14, 2015. Kerry traveled to the Cuban capital to raise the U.S. flag and formally reopen the long-closed U.S. Embassy. Pablo Martinez Monsivais/AP

Secretary of State John Kerry shakes hands with Cuban Foreign Minister Bruno Rodriguez prior to their meeting at the Foreign Ministry in Havana, Cuba, Friday,
Aug. 14, 2015. Kerry traveled to the Cuban capital to raise the U.S. flag and formally reopen the long-closed U.S. Embassy. Pablo Martinez Monsivais/AP
The regulation has not yet been released, although a 27-page document, dated Sept. 7 and marked to be reviewed by the White House’s Office of Management and Budget, was provided to McClatchy.

It couldn’t be determined if the version that is ultimately released will match the Sept. 7 version. The Department of Commerce didn’t respond to a request for comment about it.

As indicated in the document, the rules could amend existing ones to boost engagement between American and Cuban people, accelerate the free flow of information to and from Cubans, and ramp up independent economic activity generated by Cubans.

In many ways, the rule would merely be a continuation of the process begun Dec. 17, when President Barack Obama announced that the U.S. was seeking to thaw the five-decade freeze in its relations with the island nation 90 miles from Florida.

After that momentous December announcement, the Commerce and Treasury departments in January took steps to put in place parts of the president’s policy. The new rules, which could be announced as early as Friday, could amend the terms of existing license exceptions available for Cuba, create new licensing policies, and take other steps to further promote economic activity in Cuba.

Robert L. Muse, a Washington-based lawyer and expert on Cuba trade who reviewed the Commerce document Thursday, said the moves could be significant.

“They’re greater than the ones in January,” he said in an interview. “The rules in January were important – they established the precedent. But it was more of a beachhead, and it was a bit murky. Now they are engaging the business community in a way that’s going to be interesting and important to them. It begins to give them some real commercial traction.”

Among the key changes, Muse said, was that companies engaged in exporting authorized items to Cuba will be able to establish, maintain and operate physical premises in Cuba.

That, he said, is significant.

“Maintaining a presence is brand new – that’s the big further step they have taken here,” Muse said. “The intention is to bring American businesses to the island.”

An example, he said, would be an agricultural commodity company allowed to export to Cuba that would now be able to establish a sales office – or possibly even a warehouse – on the island, thus furthering its prospects.

Several other types of businesses could also be affected, including aircraft; telecommunications equipment; medicine; and materials, equipment, tools and supplies.

According to John S. Kavulich, president of the U.S.-Cuba Trade and Economic Council, the new regulations could permit a U.S. company to open a distribution center within the Mariel free trade zone; or shipping companies such as FedEx to have drop-off locations; U.S. airlines to have a ticket office; home renovation chains to sell building materials and supplies; or rice companies to have a sales office.

“And the companies can hire Republic of Cuba nationals as employees,” he said.

He added that regulations “would permit the most comprehensive trade and investment changes to the United States relationship with the Republic of Cuba in decades.”

However, just because the U.S. is authorizing such activity doesn’t mean the Cuban government will allow it.

“This is the U.S. saying to U.S. companies and individuals: You can do these things,” Kavulich said. “You will now have to convince the Cuban government to let you do them.”

New rules will allow American companies to open locations and hire workers in Cuba and facilitate financial transactions between the nations.
By Julie Hirschfeld Davis

The White House on Friday announced wide-ranging changes to loosen travel, commerce and investment restrictions on Cuba, moving to fulfill President Obama’s goal of breaking down barriers between Washington and Havana even as the American embargo remains in place.

20150921 PG10 CUBATRAVEL
Cuban-Americans arriving from Miami and their Cuban relatives reunited Friday at José Martí International Airport in Havana. Credit Desmond Boylan/Associated Press

The rules will allow American companies, including telecommunications and Internet providers, to open locations and hire workers in Cuba, facilitate financial transactions between the two nations and remove limits on the sums that can be taken to the island nation. They are to take effect on Monday on the eve of the visit to Washington by Pope Francis, a proponent of the reconciliation who quietly helped broker the agreement between Mr. Obama and President Raúl Castro last year.

Mr. Obama spoke to Mr. Castro by telephone on Friday to discuss the normalization process before the pope traveled to Cuba on Saturday and then to the United States on Tuesday, the White House said. In addition to praising the pope’s role in their rapprochement, the two presidents “discussed steps that the United States and Cuba can take, together and individually, to advance bilateral cooperation,” an official said, even as they continue to have differences on important issues and “will address those differences candidly.”

Administration officials said Mr. Obama was still hoping that Congress would take action to lift the travel and trade embargo, although senior aides to the president offered a grim assessment of the chances that it would happen in the short term.

“I don’t think we’ve seen a whole lot of evidence to indicate that those prospects have significantly improved,” said Josh Earnest, the White House press secretary. Still, he said, the rules would deepen connections among Cubans and Americans in the interim and expose Cuba’s citizens to American values while helping United States businesses.

Jacob J. Lew, the Treasury secretary, said the rules, issued by his agency and the Commerce Department, could lead to “constructive change for the Cuban people.”

“A stronger, more open U.S.-Cuba relationship has the potential to create economic opportunities for both Americans and Cubans alike,” Mr. Lew said in a statement. “By further easing these sanctions, the United States is helping to support the Cuban people in their effort to achieve the political and economic freedom necessary to build a democratic, prosperous, and stable Cuba.”

They also hold out the prospect of new business opportunities for American companies in Cuba, which some observers said was intended to increase pressure on Havana to take corresponding action to open its economy.

The White House is working to show momentum in the rapprochement with Cuba before Dec. 17, the first anniversary of when it was announced.

“In addition to expanding our commercial engagement with the Cuban people, these additional adjustments have the potential to stimulate long overdue economic reform across the country,” Penny Pritzker, the secretary of commerce, said in a statement.

American corporations have been working behind the scenes with the Obama administration for months to bring about the normalization the president promised, which began with an initial set of regulatory changes in January. But the new rules exceeded the expectations of some business leaders, who said they had sent a clear message to Cuba that it must do more on its end.

Administration officials acknowledged on Friday that the scope of the changes that can be brought about by lifting sanctions and loosening commercial rules would depend to a degree on Cuba’s willingness to facilitate the new cooperation and make reforms in its state-run economy.

“In part, this depends on the government of Cuba,” said a senior official who worked on the rules, “and we don’t have control there.”

For example, the lifting of some United States export restrictions, such as those on certain electronic equipment and civilian aviation safety goods, may have limited effect if Cuba does not change the way it handles imports, which now must go through a government agency.

But officials said they foresaw many potential areas of cooperation, including a venture between Etecsa, Cuba’s government-owned telecommunications provider, and an American firm that could improve service on the island.

The regulations will for the first time in decades allow United States companies to do business directly in Cuba, setting up subsidiaries or opening offices or warehouses there, and allowing Americans to have bank accounts and Cubans to maintain bank accounts outside of their country. Cruise ships will be able to travel between the United States and Cuba without making a stop in a third nation. And close relatives will be able to visit family members in Cuba for a wider array of purposes.

They will also allow American telecommunications and Internet companies to locate in Cuba and market their services there, as well as to import mobile applications made in Cuba for development in the United States.

Senator Amy Klobuchar, Democrat of Minnesota, said allowing companies to have a physical presence in Cuba was a major step, making it far easier, for example, for the agricultural exporters from her state that provide $20 million in food aid to streamline their operations.

“All of the machinations that they had to go through to get to these provisions just shows the crying need for lifting the embargo, because while all of this is really good, it is so obvious that it would be so much simpler to lift the embargo,” Ms. Klobuchar, a sponsor of legislation that would remove the trade and travel ban, said in an interview. “While it is a very positive step, it just shows the absurdity” of keeping the embargo in place, she added.

James A. Williams, the president of Engage Cuba, a bipartisan public policy group pushing for normalization, cheered the changes but said there was “more the Obama Administration can and should do, such as allowing individuals to participate in people-to-people travel without third-party brokers.” He also said Congress must “do its job” and lift the embargo.

Opponents of Mr. Obama’s policy argued that the rules were one-sided concessions to a brutal government that has done nothing to change its behavior.

“The Obama policy of pouring more American money into the Castro regime’s coffers won’t make America safer or the Cuban people freer,” said Senator Marco Rubio, a Florida Republican and presidential hopeful of Cuban descent. “Not only do these measures harm the cause of a free Cuba, they also raise serious questions about the legality of the Obama administration’s regulations.”

Mr. Earnest said the administration would “continue to press the Cuban government to implement the kinds of reforms that we believe are long overdue.”

In the meantime, he said, relaxing commerce and travel rules would give leaders there “an incentive that they didn’t have before to start implementing those reforms, so that they can take advantage of the opportunity that the United States has extended to them.”