Exxon-Cuba Ruling Shows Justices’ Sovereign Immunity Pragmatism
The US Supreme Court’s June 23 decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A. appears to represent a pragmatic approach to sovereign immunity.
Where lower federal courts have taken an exacting approach to immunity waivers, the justices clarified that, when considering if Congress abrogated a foreign state’s immunity, they would take a holistic approach to account for intent based on what’s “clearly discernible from the sum total” of Congress’ work.
The court held in Exxon that the Helms-Burton Act independently abrogates the foreign sovereign immunity of Cuban agencies and instrumentalities in connection with claims brought under that law.
The decision clears a path for US nationals to seek redress for property confiscated by the Cuban government in the wake of the Cuban revolution.
Helms-Burton History
Congress enacted the Cuban Liberty and Democratic Solidarity Act (Libertad), known as the Helms-Burton Act, in 1996 following Cuba’s intentional downing of a civilian aircraft carrying US citizens, which resulted in the deaths of all on board. The law sought to pressure the Cuban regime in multiple ways, including by codifying the US embargo on Cuba.
One of the law’s provisions authorized private parties to bring lawsuits against anyone who “traffics” in property that was confiscated by the Cuban regime following the 1959 communist revolution. Following Fidel Castro’s takeover, the Cuban government conducted widespread property expropriations, with the property of US nationals being a main target.
Title III of the Helms-Burton Act expressly authorizes the owner of a claim to confiscated property (typically the former property owner) to sue any person who has sold, used, or profited from the use of the confiscated property, subject to certain exceptions.
While the Helms-Burton Act broadly defined trafficking to include private companies that the Cuban government later acquired or permitted to use for commercial activities, it specifically provided that foreign state instrumentalities — such as Cuban state agencies and stated-owned corporations, to whom much of the property was given — could be held liable.
Title III contained an unusual provision permitting the US president to suspend Title III, and prior to 2019, every president suspended it. President Donald Trump lifted the suspension in 2019 and Exxon quickly brought suit against two Cuban state-owned corporations that had operated and profited from the Exxon refinery that was confiscated after the communist takeover.
In response, the Cuban companies asserted sovereign immunity, while Exxon argued that Congress, by specifically including foreign state instrumentalities among the parties that could be held liable under Title III, necessarily intended to abrogate their immunity. Both the trial court and the intermediate appellate court rejected Exxon’s arguments.
‘Meaningful Remedy’
The Supreme Court, however, agreed with Exxon, ruling that the Helms-Burton Act stripped Cuban state instrumentalities of their sovereign immunity in Title III claims.
Justice Brett Kavanaugh, writing for the majority, found that “Congress took the highly unusual step of creating a cause of action that expressly applies against foreign (here, Cuban) agencies and instrumentalities,” and plainly intended to create a “meaningful remedy.” If sovereign immunity were to block such claims, it “would largely negate the cause of action” Title III created.
Elsewhere in the Helms-Burton Act, Congress simultaneously formalized the economic embargo against Cuba and thereby prohibited the type of commercial activity with the US required to overcome sovereign immunity. The court found it “would make little sense for Congress to construct an elaborate statute authorizing suits against the Cuban government agencies and instrumentalities if, because of [foreign sovereign immunity], almost no suits could ever get through the courthouse door.”
Going Forward
For US nationals with claims for property confiscated by the Cuban government, the practical significance of this decision is substantial.
Before Exxon, plaintiffs faced a paradox: Title III authorized them to sue the Cuban state instrumentalities directly, but they faced a difficult and expensive threshold burden of overcoming sovereign immunity by proving the link between the instrumentality’s commercial activities and the US. As a result, many of the initial Title III cases were brought against companies that, through their business dealings in Cuba, were alleged to be “trafficking” in confiscated property under the Helms-Burton Act’s broad definition, but had no involvement in its expropriation.
To the extent judgments could be obtained against those companies, they — not the Cuban regime — would be the ones compensating the property owners, which would correspondingly relieve Cuba’s liability. The Supreme Court’s decision corrects this misalignment by removing the shield of sovereign immunity and making it easier for plaintiffs to bring suit directly against Cuban instrumentalities.
The Supreme Court doesn’t take many cases involving sovereign immunity; such cases tend to be decided by a small subset of the federal courts of appeals, and circuit splits are rare. So when the justices do take a sovereign immunity case, its implications for claims against foreign states are broad. And that’s the case here.
This article does not necessarily reflect the opinion of Bloomberg Industry Group Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.
The case is Exxon Mobil Corp v. Corporacion CIMEX S.A., U.S., No. 24-699, decided 6/23/26.
Author Information
James E. Berger is a New York-based litigation partner at DLA Piper whose practice focuses on cross-border disputes and disputes involving sovereigns.
Ilana H. Eisenstein is DLA Piper’s global co-chair of litigation and regulatory, the US chair of litigation, and a member of the firm’s global executive committee.
The authors represented the Chamber of Commerce in an amicus brief in the Exxon case.
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