Developments in US-Cuba Relations: Opportunities for Barbados? September 24, 2015
The Start: U.S. & Cuba Move to Normalize Relations U.S. & Cuba make Announcements on December 17, 2014 Release of Alan Gross & other Prisoners Cuba releases Gross: convicted of Crimes Against the State and sentenced to 15 years in 2009 Cuba releases a Cuban U.S. intelligence asset after about 20 years U.S. releases 3 of the Cuban Five Canada, Pope Francis and the Road to a Deal 2
New Course Set for U.S. Relations with Cuba New U.S. Policy Intended to Engage & Empower Cuban People Increase people-to-people contact Empower private sector in Cuba Support civil society in Cuba Enhance free flow of information Implementation of New U.S. Policy Amended Regulations (Cuban Assets Control Regulations) of U.S. Treasury Department s Office of Foreign Assets Control (OFAC) Amended Regulations (Export Administration Regulations) of U.S. Commerce Department s Bureau of Industry and Security (BIS) U.S. Removes Designation of Cuba as State Sponsor of Terrorism 3
New Course Set for U.S. Relations with Cuba On July 20, 2015 both countries opened embassies in the other country and removed the restrictions on movement by diplomats serving in the other country. On May 5, 2015, Treasury granted licenses to 4 companies to start ferry service from Florida to Cuba. On Aug. 20, American Airlines announced it will operate the first charter flights between Los Angeles and Havana. Sept. 21, 2015, Treasury & Commerce announce new regulations for further liberalization. 4
Overview of U.S. Sanctions Predating Thaw in Relations Sanctions apply to all U.S. Persons U.S. Citizens & Permanent Residents, wherever located Persons physically in the U.S. U.S. entities & their branches & subsidiaries worldwide Secondary Sanctions apply to non-u.s. Persons engaged in transactions involving property in U.S. or subject to U.S. jurisdiction Penalties for U.S. sanctions violations Criminal Penalties of up to 10 years imprisonment, $1M in corporate fines, and $250K in individual fines Civil Penalties as high as $65K per violation 5
Overview of U.S. Sanctions Predating Thaw in Relations (Cont.) No Exports to Cuba: U.S. Persons prohibited from exporting goods or services to Cuba No Exports to Cubans Worldwide: U.S. Persons prohibited from exporting goods or services to Cuban nationals or entities worldwide No Imports from Cuba: U.S. Persons prohibited from importing anything of value from Cuba No Investments in Cuba by U.S. Persons OFAC s policy to grant Specific Licenses only for limited travel-related activities 6
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations Authorize travel to Cuba & related transactions within 12 categories, subject to certain restrictions Family visits Official business of U.S./foreign governments & intergovernmental organizations Journalistic, educational & religious activities Professional meetings and research Public performances, clinics, workshops, athletic & other competitions Humanitarian projects (medical/health related, environmental & microfinance projects) 7
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Support for Cuban people (activities to promote human rights & strengthen civil society) Activities of private foundations, research & educational institutes Export, import or transmission of information & informational materials Certain export transactions Per Diem spending limits for authorized travelers lifted Travel for purely tourist purposes not authorized 8
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Travel Services provided by U.S. travel agents and airlines authorized Carrier to retain certification from travelers Re authorization to travel Aircraft on temporary sojourn can remain in Cuba for 7 consecutive days and vessels for up to 14 consecutive days 9
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Remittances to Cuba Limits on donative remittances to Cuba, except Govt or Party officials, now at $2,000 per quarter, will be removed entirely Limits on authorized remittances individuals may bring to Cuba, previously $10k for persons subj to US jurisdiction and $3k for Cuban nationals, will be removed entirely Expanded general license will authorize additional remittances to Cuban nationals in connection with the administration of estates. Unlimited remittances for Humanitarian Projects, Support for Cuban People & Development of Private Business in Cuba 10
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Use of Credit & Debit Cards in Cuba authorized MasterCard and American Express have said that they are willing to process card transactions by American travelers to Cuba but will need support from U.S. banks. Commercial and Financial Transactions Will allow all persons subject to U.S. jurisdiction to provide goods and services to individual Cuban nationals located outside of Cuba, provided there is no commercial export of goods or services to or from Cuba. Banking institutions can open & maintain accounts for Cuban individuals for use while Cuban national is located outside the U.S. 11
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Import of Goods from Cuba Limit of up to $400 worth ($100 in alcohol or tobacco products) imported by authorized travelers Commercial imports of specified goods and services produced by independent Cuban entrepreneurs Entrepreneurial/Business Training & Microfinancing activities authorized Such as for private businesses & agricultural operations 12
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Legal Services OFAC s gen. license authorizing provision of certain legal services to Cuba and Cuba nationals will be expanded to allow receipt of payment for such services, except for Cuban government or Communist party officials. Persons subject to U.S. jurisdiction can receive and pay for certain legal services from Cuba or Cuban nationals 13
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) U.S. Financial Institutions authorized to open. Correspondent Accounts at Cuban Financial Institutions On June 17, 2015, Pompano Beach-based Stonegate Bank said that it is setting up a correspondent banking relationship with Banco Internacional de Comercio, a Cuban financial institution Telecommunications Transactions to establish commercial services in Cuba & linking third countries with Cuba authorized Services incident to internet-based communications authorized 14
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Persons subject to U.S. jurisdiction can establish a business presence in Cuba, including through joint ventures with Cuban entities, to provide certain telecommunications and Internet-based services, as well as to enter into licensing agreements related to such services. Persons subject to U.S. jurisdictions can import Cuban-origin mobile applications into the U.S. and hire Cuban nationals to develop them. Expansion of License Exception created in 2009 & intended to increase free flow of information to/from Cuba authorizes export of consumer communications devices (computers/mobile phones/radios Authorization to provide services re certain consumer communications devices exported to Cuba will be expanded to authorize services re additional types of items authorized by Commerce, and add training related to the installation, repair, or replacement of those items. 15
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Physical Presence and Operations in Cuba Persons subject to U.S. jurisdiction engaging in the following categories of authorized activities can establish and maintain a physical presence, such as an office, retail outlet, or warehouse, in Cuba: News bureaus Exporters of certain goods authorized for export or re-export to Cuba, such as agricultural products & materials for construction or renovation of privately owned building 16
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Entities providing mail or parcel transmission services or certain cargo transportation services Providers of telecommunications or internet-based services Entities organizing or conducting educational activities Religious organizations Providers of carrier and certain travel services. These individuals and entities can also employ Cuban nationals, open and maintain bank accounts in Cuba and employ persons subject to U.S. jurisdiction in Cuba. 17
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Support for Cuban People (improving living conditions, strengthening civil society, & supporting independent activity by the Cuban people) License Exception Support for the Cuban People (SCP) will authorize certain exports and re-exports of items to Cuba for use in establishing, maintaining, and operating a physical presence in Cuba. Eligible end-users of the items include certain persons Providing telecommunications or internet-based services Establishing telecommunications facilities Providing travel or carrier services 18
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Organizing or conducting educational activities or Transporting authorized items between the U.S. and Cuba. Certain commodities and software for use in software development may be exported or re-exported to eligible end-users in Cuba pursuant to License Exception SCP. Certain temporary re-exports from a foreign country to Cuba will be authorized by License Exception SCP when the items are for use in scientific, archeological, cultural, ecological, educational, historic preservation, sporting activities, or in the traveler s professional research and meetings. Before, the provision was limited to temporary exports by persons departing the U.S. 19
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Educational Activities Expanded general license will authorize additional educational activities re Cuba and Cuban nationals, including the provision of standardized testing services and internet-based courses will be authorized. Academic exchanges and joint non-commercial academic research with universities or academic institutions in Cuba will also be authorized Travel-related transactions in connection with these activities will also be authorized. 20
Liberalizing Economic Relations with Cuba Changes to OFAC Regulations (Cont.) Facilitating Trade with Cuba Regulatory definition of cash in advance revised from cash before shipment to cash before transfer of title and control Authorize foreign vessels to enter U.S. after engaging in trade with Cuba Transactions with Cuban Nationals Outside Cuba Unblock accounts of Cubans permanently relocated outside Cuba Authorize U.S. owned or controlled entities in third countries to provide goods and services to Cuban nationals outside Cuba Humanitarian Projects The general license authorizing transactions related to specified humanitarian projects will be expanded to include disaster relief and historical preservation. 21
Liberalizing Economic Relations with Cuba Changes to BIS Regulations Export of Agricultural Items to Cuba - general license exception Export of Medicine & Medical Devices - favorable licensing policy License Exception Re Support for Cuban People (SCP) authorizes export of: building materials, equipment & tools for private sector construction of privatelyowned buildings tools & equipment for private sector agricultural activity tools, equipment, supplies & instruments for use by private entrepreneurs (e.g., mechanics, barbers) 22
Liberalizing Economic Relations with Cuba Changes to BIS Regulations items for use in scientific, educational, ecological, cultural, historic preservation or sporting activities items for telecommunications (access to internet, use of internet services, infrastructure creation) New Licensing Policy for Environmental Protection Favorable policy for export of items required for environmental protection of U.S. & international air quality, waters and coastline (including items Re energy efficiency & renewable energy) 23
Factors Limiting Short Term Impact of Liberalizing Economic Relations with Cuba Most transactions between U.S. Persons and Cuba remain prohibited Increased US-Cuba trade & economic relations likely to occur slowly Relatively low income of most Cubans (although boosted by entry of U.S. banks & credit cards, and increased remittances) Limited Cuban infrastructure Limited market oriented economic reforms and entrepreneurship in Cuba Legal and regulatory issues and limited foreign investment in Cuba Continued U.S. statutory restrictions Political dynamic of continued liberalization in U.S. [and Cuba] Lack of good understanding because of decades of estrangement 24
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cuba Cuban Entrepreneurship must strengthen and prosper Challenges Remain Absence of guarantees for property rights Tax structure in Cuba: is onerous on Cuban entrepreneurs Cuban laws and policies not clear or transparent Significant and cumbersome red tape in Cuba Inability to secure reliable access to wholesale goods and rental space Lack of ready access to credit and financing Lack of basic business education in Cuba Potential Drivers 20% (430,000) of the 5.1 m. work force listed now as self-employed Another 600,000 to 1 million (or more) workers can reasonably be labeled private sector. (e.g., informal, gray area or illegal full-time businesses and another, probably even bigger, segment of the population known as GESPI (government employees who earn substantial private income) 25
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cuba The way forward is that some small businesses,some could grow to become major generators of savings and job creation. In the specific context of Cuba s political economy The may be four stages of capital accumulation during which private business can, step by step, 1) add to household incomes, 2) move forward to generate hefty profits, 3) forge domestic value chains, and 4) ultimately build alliances with efficient state-run firms and foreign partners. New programs in Cuba to support entrepreneurs (i.e., Cuba Emprende) Size of U.S. private sector and market, and its proximity to Cuba Large Cuban expat community in the U.S. Private sector enterprises in the Caribbean 26
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cuba (Cont.) Economic Reforms in Cuba must accelerate and deepen Stated goal to preserve hegemony of state central planning and property Distribution of idle land & other agricultural reforms Farmers can use idle land (under renewable 10 year leases) and keep or sell produce Positive development, but challenges remain (no ownership & resultant uncertainty, legal restrictions, requirement to link with inefficient state farms or coops to obtain materials or services and to market produce, inexperienced farmers) 27
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cuba (Cont.) Dismissal of surplus state employees & expansion of non-state sectors 36% of state workforce (1.8M people) deemed redundant State employment down from 82% to 75% from 2006 to 2012 Self-employed & non-agricultural production and service coops to absorb discharged workers Positive development, but challenges remain (limited categories of permitted selfemployment, bureaucratic hurdles, heavy tax burden, potential conflict with state entities) 28
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cub (Cont.) Economic Reforms in Cuba must accelerate and deepen (Cont.) Wages, social services & rationing Salary reforms (increase nominal wages, permit moonlighting, abolish salary cap & allow bonuses) Reduction in social services to reduce fiscal deficit Housing purchases & sales Residents rented from government - becoming owners after 20 years but couldn t buy or sell 95% of population home owners, but housing deficit of 600K to 1M units 2011 reforms authorize buying and selling homes Expats can t buy property & locals have limited means only 3.6% of housing changed hands 29
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cub (Cont.) Unification of dual currency Dual currency (CUP & CUC) since 1995 cause for serious distortions Plan for monetary unification announced in 2013 Positive development, but properly implementing transition critical Distance Banking Services made available in June for self-employed workers and private entrepreneurs, but many in Cuba distrust state banking institutions. Foreign Investment in Cuba must be fostered and increased Level of investment in Cuba only half regional average 30
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cub (Cont.) 2014 Updates to regulations governing foreign investments Expands permissible investments in all sectors except health care, education & armed forces Exempts foreign investors from personal income tax, labor tax & tax on select imports 8 year profits tax holiday & 1 year sales tax holiday for new investors Investors can open foreign bank accounts in convertible currency to import and export directly Precludes investors from directly hiring and firing employees in Cuba Allows expropriation for reasons of public utility or social interest, but provides for compensation Special Mariel Development Economic Zone 31
Prerequisites to Long Term Success of Liberalizing Economic Relations with Cub (Cont.) Prosecution of Tokmakjian A cautionary tale Canadian businessman imprisoned in Cuba for 3 years on corruption & tax evasion charges Tokmakjian International Inc. an IBC under Barbados law Tax evasion charges may be in violation of DTA between Cuba & Barbados Tokmakjian Group challenged seizure of $100M assets in Canadian courts and int l arbitration (prosecution an excuse to seize assets?) 32
Barbados as Conduit for Investment in Cuba Double Tax Agreement (DTA) (1999) Barbados one of only 7 countries party to DTA with Cuba applying to both income & capital Principal Terms Applies to entities established in Barbados (deriving legal status from its laws) and subject to taxes there (more than just with respect to income from incountry sources) On its face, does not have treaty shopping or abuse provisions Standard definition of Permanent Establishment (PE) Profits of a Barbados entity taxable only there unless it conducts business in Cuba through a PE situated in Cuba 33
Barbados as Conduit for Investment in Cuba Double Tax Agreement (DTA) (1999) Profits from operation of ships or aircraft in international traffic taxable only in the country where effective place of company s management is located (e.g., Barbados) Relatively low taxes on dividends (up to 5% if own 25% or more of the company paying dividends, otherwise up to 15%), interest (up to 10%) & royalties (up to 5%) 34
Barbados as Conduit for Investment in Cuba Bilateral Investment Treaty (BIT) (1998) Jurisdiction applies to companies & other entities (IBCs & SRLs) constituted under laws of Barbados Definition of Investment broadly includes every kind of asset: Moveable & immoveable property, and other property rights Company shares and debentures Contractual claims Intellectual property rights Business concessions conferred by law No Treaty Shopping or Abuse Provisions 35
Barbados as Conduit for Investment in Cuba Bilateral Investment Treaty (BIT) (1998) Protections: each country affords nationals of the other country fair and equitable treatment full protection and security right to national treatment most-favored nation treatment No Expropriation other than for a public purpose related to country s internal needs on non-discriminatory basis and subject to prompt, adequate and effective compensation Disputes not amicably settled between investor and treaty country resolved by international arbitration 36
Barbados as Conduit for Investment in Cuba CARICOM-Cuba Trade & Economic Cooperation Agreement (2000) Objectives of TECA Promote & expand trade in goods & services by providing free market access and eliminating non-tariff barriers Establish trade promotion programs and financial arrangements to facilitate progressive development of two way trade Provide facilities for establishing & operating joint ventures & other forms of economic cooperation Develop mechanisms to promote & protect investments made by nationals of treaty countries Discourage anti-competitive business practices 37
Barbados as Conduit for Investment in Cuba CARICOM-Cuba Trade & Economic Cooperation Agreement (2000) Economic Sectors Emphasized under TECA Tourism & Travel-Related Services Financial Services Construction & Engineering Services Computer & Telecommunications Services Transportation Services 38
Barbados as Conduit for Investment in Cuba Types of Potential Investors Sectors with Greatest Near Term Promise Hotels & other tourism related businesses Transportation Telecommunications Building & Construction Financial Services Agriculture Likely Origin of Potential Investors Traditional investors from Canada, Europe & Latin America deepening their presence U.S. investors testing the waters, initially in permissible sectors 39
Barbados as Conduit for Investment in Cuba Types of Potential Investors Training and Technical Assistance Cuban entrepreneurs need training. Recently, the Catholic Church, esp. the Jesuits have done training in Cuba on a wide variety of skills. Barbados and CARICOM nationals are good candidates for training, perhaps in joint ventures with persons outside with financing. Barbados and CARICOM entities can provide training in entrepreneurship in general. 40
Barbados as Conduit for Investment in Cuba Types of Potential Investors Training would also be helpful in the nine possible forms of selfemployment in Cuba: paladares (restaurants), casas particulares (renting rooms in houses), tailor, photographer, hair-dresser, barber, manicurist, clothes-washing, and motorcycle delivery. To facilitate trade and investment in bilateral services bilateral exchanges of professionals would be useful, especially given the differences in legal culture. BIBA and Barbados professional bodies may want to facilitate exchanges of Cuban professionals to familiarize themselves with Barbados institutions, laws, and culture, especially dealing with services. 41
Other Avenues for Economic Engagement between Barbados and Cuba Cuba is remarkably rich in artistic talent. Thousands of professional dancers of ballet and salsa, singers and actors, painters and writers, legitimately earn income as independent artists when they market their products on the domestic market or overseas. Even many of the paladares reflect the flare for culture. Much more than eating places, many paladares are creative imaginings of Cuba s history and culture: As Cuba becomes more integrated into regional and global markets, many more Cuban artists will successfully monetize their talents. 42
Other Avenues for Economic Engagement between Barbados and Cuba As Cuba becomes more integrated into regional and global markets, many more Cuban artists will successfully monetize their talents. Barbados may want to capitalize on Cuban cultural talent to boost its own offering of cultural services and undertake cultural joint ventures. 43
Other Avenues for Economic Engagement between Barbados and Cuba Best Framework mechanism is a cultural convention Art 1: parties agree to promote and develop cultural, educational, and scientific cooperation. Art. 2: parties will support the interchange of representatives of universities, institutions and organizations in the fields of culture, education and scientific investigation; Art. 3: parties will encourage the visits of persons engaging in literature, music, art (including artistic craftsmanship), theatre, film and cultural promotion in the widest sense with a view to studies and collection of material as well as participation in conferences, festivals, and international competitions; 44
Other Avenues for Economic Engagement between Barbados and Cuba Art. 5: parties shall endeavor to make it possible for students from the other country to be admitted to institutions of education within the limits of existing regulations; Art. 6 parties shall promote exchanges of persons responsible for popular educational and cultural promotion; Art. 7 parties shall encourage cooperation between young people and youth organizations of the two countries; 45
Other Avenues for Economic Engagement between Barbados and Cuba Art. 8 parties shall encourage cooperation between sporting organizations and visits of sports persons of the two countries; Art. 9 For the purpose of the implementation of the Convention a permanent Mixed Commission will be established, of which three members will be Cuban and sit in Havana and three members shall be Barbados and sit in Bridgetown. The two sides of the Commission shall meet at periodic intervals, normally of not less than three years, alternatively in Havana and Bridgetown. 46
Other Avenues for Economic Engagement between Barbados and Cuba Helping Cuban Entrepreneurs Share with Cuba activities promoted by Barbados Entrepreneurship Foundation (BEF) Free Wi-Fi Project to increase free Wi-Fi coverage Barbados Angel Investors Network to invest in worthy local start-ups Growing sustainable entrepreneurship by advancing key pillars: Finance, Government Policy, Education & Skills, Mentorship and Business Facilitation Expanding Barbados Cultural Landscape with Cuban Offerings Visual & performing artists Sports players & teams Cuban culinary arts 47
Other Avenues for Economic Engagement between Barbados and Cuba Fostering interactions in the Non-Profit Sector The Barbados government may want to consider facilitating visits by groups of Cuban business owners to engage with their counterparts in Barbados, to experience state-of-the-art practices and to build business partnerships. Barbados non-profits such as BEF, Chamber of Commerce, Kiwanis International, Lions Club, and Rotary Club, Bar Association, Association of Certified Accountants, Council of Women, and academic & professional organizations may want to explore opportunities to mentor their counterparts in Cuba on entrepreneurship. 48
Other Avenues for Economic Engagement between Barbados and Cuba By serving as incubators of greater cooperation with & activities in Cuba, may be able to attract funds from foundations outside the region. In particular, by joint venturing with charitable organizations, foundations and civil society in the Americas and Europe, Barbados can provide a regional Caribbean small business perspective in working with Cuban entrepreneurs, provided the Cuban government allows such organizations to operate. With the U.S. Barbados can try to take advantage of Unlimited remittances for Humanitarian Projects, Support for Cuban People & Development of Private Business in Cuba.. 49
Other Avenues for Economic Engagement between Barbados and Cuba An example is StartUp Cuba, which launched in November 2014, will offer two types of programs this year: A U.S. fellowship for about 10 Cubans with established businesses, and a workshop-style program in Cuba. The fellowship will give entrepreneurs the opportunity to come to the U.S. for a one-month immersion, receiving one-on-one mentoring and taking classes. 50
Other Avenues for Economic Engagement between Barbados and Cuba The second offering will be similar to a 2013 pilot program run by Miami-based nonprofit Roots of Hope, StartUp Cuba's parent organization. During the pilot, students took courses on everything from market analysis to crafting business plans. 70% of the graduates were women who averaged 30 years old; their businesses primarily focused on goods and services. 51
Summary and Conclusion Broad scope of U.S. sanctions scaled back after decades + U.S. Cuba relations likely to move towards normalization + Large U.S. economy and proximity to Cuba + Large Cuban expat community in the U.S. Significantly greater U.S. investment in Cuba & U.S. - Cuba trade Cuban private sector & entrepreneurship growing + Market oriented economic reforms in Cuba may accelerate + Progressively liberal foreign investment laws in Cuba & adherence thereto (?) Significantly greater trade with & investment in Cuba generally Greater trade with & investment in Cuba (from U.S. & elsewhere) + Barbados Cuba DTA + Barbados Cuba BIT + CARICOM Cuba TECA + Geographic & cultural proximity of Barbados with Cuba Great potential for Barbados as conduit for trade & investment in Cuba 52
Bruce Zagaris, Esq. Babak Hoghooghi, Esq. Berliner Corcoran & Rowe LLP 1101 17th Street, N.W. Suite 1100 Washington DC 20036 (202)293-5555 www.bcr-dc.com