Confiscatory Enrichment After Havana Docks and CIMEX

Confiscatory enrichment is the particular case of unjust enrichment arising from the patrimonial transfer (the shift of value from one estate to another) that results from wrongful confiscations of foreign nationals’ property, in favor of the State and, eventually, of private companies downstream. This short essay argues that the 2026 U.S. Supreme Court decisions in Havana Docks Corp. v. Royal Caribbean Cruises Ltd. and Exxon Mobil Corp. v. Corporación CIMEX (Cuba) leave that concept without a measure. Both majorities rely on the statutory finding in 22 U.S.C. § 6081(8), which frames Title III of the Helms-Burton Act in terms of unjust enrichment, yet neither engages with the technical discipline of restitution. The result is a statutory floor, no ceiling, and no rule of aggregation. The essay shows that the Court had guidance available in the Restatement (Third) of Restitution and Unjust Enrichment, § 51(4), and in Liu v. SEC. It also proposes the Cuban Civil Code of 1987, arts. 100-103, as a structure for measuring the remedy, since those articles tie each head of restitution to established gains rather than hypothetical ones. The essay concludes that remedies for confiscation require the constraints of a technical framework.