WASHINGTON — The Supreme Court on Monday seemed split over whether Exxon Mobil can override immunity protections for foreign companies and sue Cuban companies for expropriating property that Exxon initially owned prior to the 1959 Cuban Revolution.
The case, Exxon Mobil Corp. v. Corporación Cimex, S.A., began when the Cuban government, under former President Fidel Castro, seized the refinery, terminals and service stations from Esso Standard Oil, S.A., Essosa, an Exxon subsidiary. Essosa stopped operating in Cuba and faced a loss of over $71.6 million, while Cuban companies began selling Essosa’s confiscated property.
Initially, Exxon could not sue due to the 1976 Foreign Sovereign Immunities Act, which declared that American companies cannot sue foreign companies in U.S. courts, unless their case fits into special exceptions. However, in 2019, President Donald Trump reactivated the Helms-Burton Act, which had a section under Title III that allows American companies to sue foreign companies that use properties Cuba confiscated.
The case could determine the extent that U.S. companies can use U.S. courts to sue companies in foreign countries. If the court rules in favor of Exxon Mobil, then U.S. companies would be more likely to bypass the sovereignty expectation and start suing overseas companies. If the court rules in favor of CIMEX, then the Foreign Sovereign Immunities Act would remain as the sole basis for most foreign suits and prevent American companies from suing overseas companies.
After Trump reactivated the Helms-Burton Act, Exxon formally sued three Cuban companies — CIMEX in Cuba, CIMEX in Panama and Unión Cuba-Petroleo. Exxon declared that these three corporations fit under the commercial activity exception since they profited from Exxon’s property like a private business would. However, the three corporations dismissed the lawsuit, arguing that they are protected by the Foreign Sovereign Immunities Act. The petitioner argued that Helms-Burton overrides Foreign Sovereign Immunities Act while the respondent argued that Foreign Sovereign Immunities Act takes precedence over Helms-Burton.
During oral arguments Monday, several liberal justices argued that Title III in Helms-Burton lacks explicit language to repeal the Foreign Sovereign Immunities Act .Justice Ketanji Brown Jackson said, American companies can’t abrogate foreign companies “unless Title III speaks to abrogation.”
Morgan Ratner, one of the attorneys representing Exxon Mobil, responded that Title III “would unequivocally pass the clear statement rule,” referring to the longstanding requirement for Congress to use explicit language in legislation.
She also said that the Court previously waived sovereign immunity in Kirtz v. USDA Rural Development in 2024 and ruled 9-0 in favor of Kirtz. The case involved the Fair Credit Reporting Act, which also lacked explicit language.
“Now there’s admittedly a high bar for abrogation, but this Court has said again and again that Congress doesn’t need to use magic words to get there,” Ratner said. “It just needs to make its intent clear.”
Justice Sonia Sotomayor and Justice Elena Kagan quickly shut down Ratner’s argument by stating that the Kirtz case did not have a stand-alone statute for foreign sovereign jurisdictions like Exxon Mobil does with the Foreign Sovereign Immunities Act. Moreover, Jackson said that Kirtz is only “one circumstance in which we [the Supreme Court] might conceive of an exception to application of the statute.”
Several conservative justices agreed with Ratner that the same exceptions used in Kirtz should also be applied to this case. Justice Neil Gorsuch and Justice Samuel Alito both said that leaving the Foreign Sovereign Immunities Act to govern foreign sovereign jurisdictions causes a “dead letter problem,” where a statute, in this case Title III, becomes ineffective due to the Foreign Sovereign Immunities Act blocking all its provisions.
University of Pittsburgh Law Professor Jules Lobel, who represented Corporación Cimex, argued that Title III is not a “dead letter” because the Helms-Burn Act has a provision that allows the president to open or restrict business transactions with Cuba. If the president eases restrictions, more activities will have to meet the expectations in Title III of Helms-Burton. Transactions with Cuba that violate Title III in some way shape or form will be sued by the American companies.
However, Trump recently signed an executive order that threatened tariffs on countries that export oil to Cuba, essentially closing the opportunity for more transactions to go through Title III. Moreover, Alito and Gorsuch also argued that the president having a toggle switch to control the Cuban embargo makes it seem like Congress designed the Helms-Burn Act to override the Foreign Sovereign Immunities Act.
“If we knew that Congress thought that the immunity conferred by the Foreign Sovereignty Immunities Act would
wipe out 99.999% of the potential claims that could be asserted under Helms-Burton, wouldn’t it be a fair inference that it did not intend to preserve the foreign sovereign immunities immunity?” Alito asked Lobel.
All liberal justices asked challenging questions to Ratner and Curtis Gannon, the other attorney representing Exxon Mobil. Reversely, Alito, Gorsuch and Justice Brett Kavanaugh raised tough questions to Lobel. While Justice Amy Coney-Barrett and Justice Clarence Thomas asked a few questions to both counsel, they remained mostly silent in the argument. Chief Justice John Roberts did not comment at all during the session.
The Court is expected to release a decision by summer.