UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AIR CANADA INC.,
Petitioner,
Civil Action No. 24-2249 (JDB)
v.
BOLIVARIAN REPUBLIC OF
VENEZUELA,
Respondent.
MEMORANDUM OPINION
Air Canada has petitioned this Court to confirm and enforce its arbitral award against the
Bolivarian Republic of Venezuela (“Venezuela”). Venezuela seeks dismissal of the petition,
contending that the award is unenforceable pursuant to Article V of the New York Convention
because the Maduro regime represented it in its arbitration with Air Canada, to the exclusion of
Venezuela’s 2015 National Assembly.
The Court denies Venezuela’s motion to dismiss and grants Air Canada’s petition to
confirm the arbitral award. The New York Convention requires confirmation and enforcement of
foreign arbitral awards absent a meritorious Article V defense, and no such defense applies here.
Article V(2)(b)’s public policy exception does not preclude enforcement of the award because the
D.C. Circuit has determined that enforcement will not abridge the recognition power of the
President of the United States. Article V(1)(a) does not supply Venezuela with a defense to
enforcement because it was competent to enter into an arbitration agreement with Air Canada.
Article V(1)(c) does not bar enforcement because the parties agreed to resolve arbitrability disputes
in arbitration, and this Court must give considerable deference to the tribunal’s determination of
1
the representation issue. Finally, Venezuela’s invocation of Article V(1)(b)’s due process
protections fails because the 2015 National Assembly had an opportunity to be heard in a
meaningful way during the arbitral proceedings.
BACKGROUND
The underlying dispute arose from Air Canada’s operation of a flight between Caracas and
Toronto. Mot. to Dismiss [ECF No. 11-1] at 3. In April 2013, shortly after the Maduro regime
came to power, Air Canada began experiencing difficulty converting the Venezuelan currency it
accrued from ticket sales into U.S. dollars—a process requiring authorization from the Comisión
de Administración de Divisas (“CADIVI”), a Venezuelan government entity. Id. In response, Air
Canada suspended its Caracas-Toronto flights, and on December 16, 2016, filed a request to
arbitrate its dispute with Venezuela over those funds before the International Centre for Settlement
of Investment Disputes (“ICSID”). Id.
For over two years, the Maduro regime represented Venezuela in the arbitration, see id. at
3-4, which took place in Paris, France, and was conducted in accordance with the ICSID Additional
Facility Rules, Mem. in Opp’n [ECF No. 13] at 5. But trouble was brewing back in Venezuela.
In May of 2018, the country held highly controversial elections. See Venezuela US SRL v.
Bolivarian Republic of Venezuela, 789 F. Supp. 3d 1, 5 (D.D.C. 2025), aff’d, 178 F.4th 679 (D.C.
Cir. 2026). While Maduro claimed victory and retained control of the state, on January 23, 2019,
the legislature rejected the validity of the election results, and declared its president, Juan Guaidó,
Interim President of Venezuela. See id. That same day, the United States withdrew recognition
of Maduro’s government and recognized the 2015 National Assembly as the legitimate
government of Venezuela. See Statement Announcing United States Recognition of National
2
Assembly President Juan Gerardo Guaidó Márquez as Interim President of Venezuela, 2019 Daily
Comp. Pres. Docs. 201900046 (Jan. 23, 2019).
Two months later, in late March, a representative of the 2015 National Assembly sent a
letter to ICSID asserting that Maduro no longer held the office of President of Venezuela and that
no one acting on behalf of the Maduro regime possessed “the authority to exercise the judicial
representation of Venezuela in arbitral proceedings.” March 27 Letter [ECF No. 11-2] at 2-3. At
the time, there were only two steps remaining in the arbitral proceedings—Venezuela’s filing of
its rejoinder and a final hearing on jurisdiction and the merits. Mem. in Opp’n at 5.
Nevertheless, one week later, the tribunal ordered counsel for Air Canada, counsel for the
Maduro regime, and counsel for the 2015 National Assembly to file two rounds of written
submissions addressing Venezuela’s representation. Award [ECF No. 1-2] ¶ 79. After counsel
for all three filed both rounds of submissions, id. ¶¶ 85, 87, the 2015 National Assembly wrote
ICSID for a second time, contending that “any award resulting from a proceeding in which any
other person is recognized as representing the Republic will lack any validity.” April 29 Letter
[ECF No. 11-3] at 2-3.
After considering the parties’ submissions, the tribunal issued a procedural order regarding
Venezuela’s representation. Procedural Order No. 7 [ECF No. 13-2]. The tribunal stated that,
while it could “not decide on the legitimacy of a regime or government” because such a
determination constituted “a political and constitutional question . . . beyond the authority and
jurisdiction of this Tribunal,” it was authorized to “decide on whether or not the proceedings
c[ould] continue with Respondent’s representative on record.” Id. ¶¶ 64-65. The tribunal
ultimately determined that Venezuela’s original representatives could and would proceed to
preserve the arbitration’s integrity and protect the interests of the parties. Id. ¶¶ 67, 70.
3
The following year, the tribunal held the arbitration’s final hearing. See Award ¶ 111. The
Maduro regime represented Venezuela and the 2015 National Assembly did not participate. Mot.
to Dismiss at 5. Following the hearing, the tribunal unanimously found that Venezuela had
breached its obligation to guarantee Air Canada transfer of its funds, and it ordered Venezuela to
pay Air Canada more than $25 million in compensation and legal fees. See Award at 193.
Air Canada filed the instant petition seeking an order confirming and enforcing the final
arbitral award pursuant to the New York Convention.1 Pet. to Confirm Arb. Award [ECF No. 1].
Venezuela moved to dismiss the petition but asserted only Article V affirmative defenses. See
Mot. to Dismiss at 7, 17. Air Canada has opposed Venezuela’s motion, and Venezuela has replied.
Mem. in Opp’n; Reply [ECF No. 14]. The petition and motion are thus ripe for resolution.
LEGAL STANDARD
Under the Foreign Sovereign Immunities Act (“FSIA”), “a foreign state is presumptively
immune from the jurisdiction of United States courts; unless a specified exception applies, a
federal court lacks subject-matter jurisdiction over a claim against a foreign state.” Saudi Arabia
v. Nelson, 507 U.S. 349, 355 (1993) (citing Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S.
480, 488-89 (1983)). One of these specified exceptions abrogates foreign sovereign immunity in
certain actions “governed by a treaty or other international agreement in force for the United States
calling for the recognition and enforcement of arbitral awards.” See 28 U.S.C. § 1605(a)(6).
“[T]he New York Convention is exactly [such a] treaty . . . .” Venezuela US SRL, 789 F. Supp.
1
Because Venezuela is not an ICSID member, 22 U.S.C. § 1650a—which codifies the United States’ obligations under the ICSID Convention—does not apply. See Int’l Centre for Settlement of Inv. Disputes, Database of ICSID Member States, https://icsid.worldbank.org/about/member-states/database-of-member-states [https://perma.cc/WJV2-QJQ8] (last visited July 8, 2026). Instead, “[s]ince the Award was made in France and enforcement is sought in the United States, both of which are signatories to the New York Convention, the confirmation is governed by the [New York] Convention.” Gold Rsrv. Inc. v. Bolivarian Republic of Venezuela, 146 F. Supp. 3d 112, 119 (D.D.C. 2015).
4
3d at 7 (quotation omitted); see also Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, opened for signature June 10, 1958, 21 U.S.T. 2517 (“New York Convention”).
The United States ratified the New York Convention by amendment of the Federal
Arbitration Act (“FAA”). See 9 U.S.C. §§ 201-08. Under the FAA, a court “shall confirm the
[arbitral] award unless it finds one of the grounds for refusal or deferral of recognition or
enforcement of the award specified in the [New York] Convention.” Id. § 207. Put another way,
“the FAA affords the district court little discretion in refusing or deferring enforcement of foreign
arbitral awards” because of the “emphatic federal policy in favor of arbitral dispute resolution.”
Belize Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 727 (D.C. Cir. 2012) (second quotation
quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631 (1985)). A
district court may refuse to enforce an award “only on the grounds explicitly set forth in Article V
of the [New York] Convention.” TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d 928, 935 (D.C.
Cir. 2012) (quotation omitted).
Article V contains several affirmative defenses to enforcement, 2 including a public policy
defense and defenses grounded in the parties’ contractual and due process rights. Because there is
“a strong presumption in favor of enforcing an arbitration award,” Sharp Corp. v. Hisense USA
Corp., 292 F. Supp. 3d 157, 174 (D.D.C. 2017), the burden of establishing one of these defenses
is “heavy” and rests with the party resisting confirmation, Gold Rsrv., 146 F. Supp. 3d at 120.
DISCUSSION
Air Canada seeks enforcement of its arbitral award pursuant to the FAA and the New York
Convention. Venezuela does not object to this Court’s jurisdiction or the legal sufficiency of Air
2
The defenses set out in the New York Convention are merits defenses to enforcement, rather than jurisdictional defenses to federal court review. See Deutsche Telekom, A.G. v. Republic of India, 155 F.4th 694, 697-98 (D.C. Cir. 2025).
5
Canada’s petition. Instead, Venezuela raises several Article V affirmative merits defenses. See
Mot. to Dismiss at 7, 17. After pointing out this procedural mismatch, Air Canada requested that
the Court construe Venezuela’s motion to dismiss as an opposition to its petition, Mem. in Opp’n
at 1 n.2, and Venezuela did not oppose Air Canada’s request in its reply. Because the Court agrees
that Venezuela’s motion does not assert grounds to dismiss the petition, and Venezuela has not
objected to Air Canada’s request, the Court will grant the request and construe Venezuela’s motion
as its opposition to the petition.
Turning to the merits, Venezuela asserts several defenses under Article V of the New York
Convention, including that confirming the award would violate United States public policy, New
York Convention, art. V(2)(b), Venezuela was incapacitated, id. art. V(1)(a), the tribunal lacked
jurisdiction to decide who could represent Venezuela, id. art. V(1)(c), and Venezuela was unable
to present its case, id. art. V(1)(b).
This Court will not refuse enforcement of the award under the New York Convention’s
public policy exception, as enforcement does not constitute a denial of the President’s recognition
power. Nor does this Court find that Article V(1)’s protections regarding incapacitation, the
arbitral tribunal’s jurisdiction, and the ability of a party to present its case supply grounds for
refusal. Venezuela presented its arguments regarding representation to the tribunal and had an
opportunity to be heard on the merits. The tribunal determined it had the authority to resolve the
representation issue, and this Court will not reject its conclusion.
Because none of Venezuela’s Article V defenses are meritorious, the Court will deny its
motion to dismiss and grant Air Canada’s petition.
6
I. Article V(2)(b)
The New York Convention provides that “[r]ecognition and enforcement of an arbitral
award may [ ] be refused” if it “would be contrary to the public policy of that country.” New York
Convention, art. V(2)(b). To invoke this exception, a party must both “identify a well-defined
public policy” that confirmation of the award would violate and show that the violation would
“clearly” undermine “the public interest, the public confidence in the administration of the law, or
security for individual rights of personal liberty or of private property.” Enron Nigeria Power
Holding, Ltd. v. Fed. Republic of Nigeria, 844 F.3d 281, 287, 289 (D.C. Cir. 2016) (citation
modified). This defense is “construed narrowly.” Id. at 289. To apply, the “[r]ecognition or
enforcement of the award must be repugnant to the fundamental notions of what is decent and just
in the United States and must violate this nation’s most basic notions of morality and justice.”
Venezuela US SRL, 178 F.4th at 682-83 (citation modified).
Venezuela contends that “[e]nforcement of the Final Award would flatly contradict the
U.S. Executive’s recognition of the 2015 National Assembly as the only legitimate government of
Venezuela.” Mot. to Dismiss at 14. It further argues that this Court, by confirming the award,
would indirectly give effect to the Maduro regime, in violation of the United States’ express public
policy of denying the regime recognition. See id. at 15.
But the D.C. Circuit has rejected Venezuela’s public policy defense on nearly identical
facts. In Venezuela US SRL, Venezuela invoked the New York Convention’s public policy
exception, arguing that confirmation and enforcement of a damages award “would infringe on the
President’s exclusive recognition power.” 178 F.4th at 683. The D.C. Circuit disagreed. It held
that “[r]ecognition and enforcement of the damages award against Venezuela does not undermine
the President’s authority” because confirmation of the award “is not a ‘formal acknowledgment’
7
or ‘express declaration’ that the Maduro Regime was the ‘effective government’ of Venezuela.”
Id. at 683-84 (citation modified).
The same logic controls here. Confirming Air Canada’s award does not imply a denial of
the President’s recognition of the Guaidó government, cannot be seen as an attempt by this Court
to expand its power at the expense of another branch, and does not force the President to contradict
his statements regarding the recognition of the Guaidó regime. Id. at 684. The public policy
exception thus does not permit this Court to refuse to recognize and enforce the arbitral award.
See United States v. Torres, 115 F.3d 1033, 1036 (D.C. Cir. 1997) (“[D]istrict judges . . . are
obligated to follow controlling circuit precedent until either [the Circuit], sitting en banc, or the
Supreme Court, overrule it.”).3
Venezuela further contends that enforcement of the award would contradict “the policy
decision to keep Venezuelan assets in the United States and out of the control of the Maduro
regime” and “[t]he Executive Branch’s clear intent” that “the Maduro regime should see no benefit
from remaining assets of Venezuela.” Mot. to Dismiss at 16, 17. However, the beneficiary of this
award is Air Canada, not the Maduro regime.
Finally, in its reply, Venezuela contends that “the public policies of fairness and due
process require that an arbitral award should not be enforced where the defendant was represented
by unauthorized legal counsel.” Reply at 3 (citing Doraleh Container Terminal SA v. Republic of
Djibouti, 109 F.4th 608, 613 (D.C. Cir. 2024)). It is a “basic precept that arguments generally are
forfeited if raised for the first time in reply” or if a party was “obscure on the issue in their opening
brief and only warmed to the issue in their reply brief.” Twin Rivers Paper Co. v. SEC, 934 F.3d
3
Venezuela attempts to distinguish Venezuela US SRL by asserting in its reply that the public policy concern here is “the breach of allowing the arbitration to proceed with the Republic unrepresented by counsel of its selection and ignoring the Republic’s legislative direction that [the Maduro Regime] is not authorized to represent the Republic.” Reply at 5. These distinct policy arguments are addressed next.
8
607, 615 (D.C. Cir. 2019) (citation modified). In its opening brief, Venezuela contended that the
Maduro regime lacked authority to represent Venezuela, violating basic principles of fairness and
due process. Mot. to Dismiss at 17, 20. But Venezuela raised this argument only in the context
of its defenses under Article V(1)(a), (b), and (c), not the V(2)(b) public policy exception.
Accordingly, the Court finds that it likely forfeited this argument. And to the extent that
Venezuela’s new public policy contention is preserved, it is nevertheless unavailing.
At the outset, Venezuela’s contention faces an uphill battle because the D.C. Circuit has
cast substantial doubt on whether a foreign nation’s representation is a colorable public policy
ground for denying confirmation of a foreign arbitral award. See Venezuela US SRL, 178 F.4th
at 684 (stating that “[t]he proverbial man on the street, if asked whether” a United States public
policy “bears on a foreign nation’s representation in an international arbitration” would “mutter
‘surely not,’ and walk away”). The Court is especially suspect of such public policy in light of the
opposing “federal policy in favor of arbitral dispute resolution” and the “strong presumption in
favor of enforcement.” Mitsubishi Motors, 473 U.S. at 631. 4 In addition, while the parties in
Venezuela US SRL did not allege an American public policy against unauthorized representation,
the D.C. Circuit implied that similar policy arguments sounding in due process can only be raised
under Article V(1)(b), not the public policy exception. 178 F.4th at 685-86.
The facts and circumstances of this dispute further compound Venezuela’s difficulty,
because even if the United States were to have a public policy prescribing a foreign arbitration
defendant’s due process rights, the tribunal’s decision could not have violated that policy.
Venezuela is a sovereign nation which, like corporations and other legal entities, cannot speak for
4
Venezuela’s reliance on Doraleh to establish such a public policy is misplaced. In Doraleh, the D.C. Circuit held that the district court had an independent obligation to determine whether the law firm was authorized to represent the party in the district court, not the arbitration. See 109 F.4th at 613-14. By contrast, there is no question here whether Venezuela’s current counsel is authorized to represent it in this Court.
9
itself. It cannot tell the tribunal, nor this Court, who its lawyer is. It cannot proceed pro se, either.
To participate in an arbitration, it must have counsel. Yet two groups, both purporting to be
Venezuela, could not agree on who that counsel was.
When corporations deadlock in an analogous manner, the court may appoint a
representative to resolve the impasse. See William M. Fletcher, et al., Fletcher Cyclopedia of the
Law of Private Corporations § 8043 (explaining that many jurisdictions “authorize the
appointment of a provisional director or a custodian to operate [a] corporation” in the event of
“management deadlock”). Alternatively, courts may dissolve the corporation. See id. § 8066.10
(“Most jurisdictions now permit judicial dissolution when . . . the directors are deadlocked in the
management of the corporate affairs.”). But neither solution was possible here because Venezuela
is a sovereign. The tribunal thus faced a stark choice: allow Venezuela to be represented by
counsel that either the 2015 National Assembly or the Maduro regime objected to, or terminate the
arbitration altogether.
It cannot be the case that American public policy requires legal and arbitral proceedings to
halt indefinitely every time an objector purports to be the true representative of a sovereign state
and the tribunal lacks jurisdiction to settle the objection. Such an extreme construction of due
process favoring the sovereign defendant would swallow not only the procedural, but also the
substantive rights of plaintiffs. Fundamental notions of due process must afford defendants more
modest protection. And those protections, whatever their outer bounds, were respected in this case
when the tribunal heard from both groups purporting to represent Venezuela and issued a reasoned
procedural order before ultimately moving forward with Venezuela’s counsel of the past two years.
10
As a result, Venezuela’s public policy defenses fail to provide a basis to deny confirmation of Air
Canada’s arbitral award.5
II. Article V(1)(a)
The New York Convention also permits a court to refuse enforcement of an arbitral award
if “[t]he parties to the agreement referred to in article II were . . . under some incapacity.” New
York Convention, art. V(1)(a) (emphasis added). The agreement referenced in Article II is “an
agreement in writing under which the parties undertake to submit to arbitration all or any
differences.” Id. art. II. As a result, “a challenge brought under Article V(1)(a) must be brought
against the agreement to arbitrate.” BCB Holdings Ltd. v. Gov’t of Belize, 110 F. Supp. 3d 233,
248 (D.D.C. 2015), aff’d, 650 F. App’x 17 (D.C. Cir. 2016).
Venezuela does not dispute its capacity to enter into the original arbitration agreement with
Air Canada, nor could it. Venezuela argues instead that Maduro’s counsel, acting as an
“unauthorized” representative, was “generally ineffectual for any purpose” in the later arbitration.
Mot. to Dismiss at 20. But because this argument does not implicate the formation of the
arbitration agreement, Article V(1)(a)’s protections offer no grounds to deny recognition and
enforcement of Air Canada’s award.
III. Article V(1)(c)
Article V(1)(c) of the New York Convention does not provide this Court with an avenue
to refuse confirmation of Air Canada’s award either. Under that provision, a court may refuse
recognition and enforcement of an award if it “contains decisions on matters beyond the scope of
5
In its reply, Venezuela also contends that confirmation of the award would violate the U.S. public policy embodied in the act of state doctrine. Reply at 4. But the FAA provides that arbitral awards “shall not be refused on the basis of the Act of State doctrine.” 9 U.S.C. § 15. This limitation applies to confirmation proceedings under the New York Convention. Id. § 208; see also Zhongshan Fucheng Indus. Inv. Co. v. Fed. Republic of Nigeria, 112 F.4th 1054, 1074 (D.C. Cir. 2024). The act of state doctrine thus does not provide a basis for refusal.
11
the submission to arbitration.” New York Convention, art. V(1)(c). Courts apply this provision
narrowly, giving “considerable leeway to the arbitrator.” First Options of Chi., Inc. v. Kaplan, 514
U.S. 938, 943 (1995). Where parties have “‘clearly and unmistakably’ agreed to arbitrate
arbitrability” a court may not “second-guess[] the arbitrator’s construction of the parties’
agreement.” Gold Rsrv., 146 F. Supp. 3d at 121 (quoting Parsons & Whittemore Overseas Co. v.
Societe Generale De L’Industrie Du Papier (RAKTA), 508 F.2d 969, 977 (2d Cir. 1974)).
Venezuela does not assert that the merits of its contract dispute with Air Canada were not
arbitrable. Instead, it contends that the panel lacked jurisdiction to decide a second order
question—the identity of Venezuela’s authorized representative. In Venezuela’s telling, by
continuing the proceeding with the Republic’s counsel of record, the tribunal decided exactly the
sort of “political and constitutional” issue that it acknowledged it could not address, thereby
abusing its authority and jurisdiction. Mot. to Dismiss at 26.
Venezuela’s contention overstates the breadth of the tribunal’s holding. True, the tribunal
recognized that it could not decide on “the legitimacy of a regime or government,” calling that a
“political and constitutional question.” Procedural Order No. 7 ¶ 64. But what the tribunal
ultimately determined was that recognition of the 2015 Assembly as the government of Venezuela
by the United States and other countries did not preclude it from continuing to arbitrate the dispute
with counsel of record. Id. ¶¶ 65, 70. Nothing more, nothing less.
The tribunal’s determination that it could proceed fell within “the scope of the [parties’]
submission to arbitration.” New York Convention, art. V(1)(c). In their contract, Venezuela and
Air Canada agreed that they would arbitrate certain disputes, and that those arbitrations would be
governed by ICSID Additional Facility Rules. Agreement [ECF No. 1-5] at 9. 6 Article 45(1) of
6
Article XII(4)(b) of the Agreement between the Government of Canada and the Government of the Republic of Venezuela for the Promotion and Protection of Investments, dated July 1, 1996, states that where “either the
12
those rules states that the tribunal “shall have the power to rule on its [own] competence.”
Additional Facility Rules [ECF No. 1-4] at 63. In other words, “by incorporating the ICSID
Additional Facility Arbitration Rules into their arbitration agreement . . . the parties agreed that
the Tribunal would decide any issues of arbitrability.” Gold Rsrv., 146 F. Supp. 3d at 121 (citation
modified).
Whether an arbitration can proceed is, at its core, a question of arbitrability. What is more,
neither Air Canada nor Venezuela deny that they submitted this question to the tribunal. See
Award at 14-15. The tribunal considered the submissions of Air Canada, the Maduro regime, and
the 2015 National Assembly before entering a procedural order determining that the tribunal both
had “the authority to decide on whether or not the proceedings can continue” and that the
proceedings could continue. Procedural Order No. 7 ¶¶ 16-24, 65-71.
This Court owes that procedural order “substantial deference,” as the tribunal’s “own
findings concerning its scope to act.” Gold Rsrv., 146 F. Supp 3d at 122. Put plainly, Venezuela’s
argument that the tribunal could not determine whether the arbitration could proceed because
proceeding implicated sensitive political questions was raised and rejected. So to adopt it here
would impermissibly second guess the tribunal’s interpretation of the parties’ agreement. Id. at
124; see also Schneider v. Kingdom of Thailand, 688 F.3d 68, 74 (2d Cir. 2012) (holding that
when a party agrees to arbitrate issues of arbitrability it is “not entitled to an independent judicial
redetermination of that same question”). The Court declines to do so. 7
disputing Contracting Party or the Contracting Party of the investor, but not both, is a party to the ICSID Convention,” the dispute may be submitted to arbitration under the ICSID Additional Facility Rules. Agreement at 9. Canada is a party to the ICSID Convention; Venezuela is not. See Int’l Centre for Settlement of Inv. Disputes, Database of Member States, https://icsid.worldbank.org/about/member-states/database-of-member-states [https://perma.cc/ WJV2-QJQ8] (last visited July 8, 2026).
7
Venezuela further contends that this Court should deny the award the “full faith and credit” ordinarily afforded to ICSID awards because the tribunal’s decision to proceed with the Republic’s representatives on record constituted an abuse of authority. Reply at 6-9 (citing Valores Mundiales, S.L. v. Bolivarian Republic of Venezuela, 87 F.4th 510, 519-20 (D.C. Cir 2023)). But here, the award is governed by the New York Convention, not the ICSID
13
This is not to say, however, that a party in Venezuela’s position may not object to the merits
of an arbitral tribunal’s representation determination as a violation of its procedural rights. The
protection of due process rights, which “reflects a fundamental value in our American
constitutional system,” Boddie v. Connecticut, 401 U.S. 371, 374 (1971), is central to the integrity
of all courts. Consequently, while contracting parties may assign questions of arbitrability to an
arbitrator, related due process claims generally remain cognizable in award confirmation actions.
The New York Convention reflects this principle by supplying a narrow exception to the
recognition and enforcement of arbitral awards—including those rendered by an arbitral tribunal
acting within its authority—where a party was deprived of the ability to present its case. New
York Convention, art. V(1)(b). The Court now turns to Venezuela’s claim under this provision.
IV. Article V(1)(b)
The New York Convention permits a court to refuse enforcement of an arbitral award if
“[t]he party against whom the award is invoked was . . . unable to present his case.” Id. To be
able to present its case, a party must receive an “opportunity to be heard ‘at a meaningful time and
in a meaningful manner.’” Iran Aircraft Indus. v. Avco Corp., 980 F.2d 141, 146 (2d Cir. 1992)
(incorporating the due process standard from Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Courts generally assess Article V(1)(b) claims “under standards of American law, which require
an arbitrator to provide a fundamentally fair hearing, defined as one that meets the minimal
requirements of fairness—adequate notice, a hearing on the evidence, and an impartial decision
by the arbitrator.” Gold Rsrv., 146 F. Supp. 3d at 127-28 (citation modified).
The requirements for a successful Article V(1)(b) defense are stringent. See id. at 129. In
addition to showing that it was denied the opportunity to present its case, the party asserting the
Convention. And the New York Convention does not afford “full faith and credit,” but rather applies the “substantial deference” standard described above.
14
defense must also point to “additional information or evidence that [it] would have presented at
the arbitration had it had the opportunity to do so.” Id. at 129 (quoting Rive v. Briggs of Cancun,
Inc., 82 F. App’x 359, 364 (5th Cir. 2003)). Put another way, “the party seeking vacatur must
establish that (1) the arbitrator committed some error, and (2) the error made a difference.” Metro.
Mun. of Lima v. Rutas De Lima S.A.C., 141 F.4th 209, 221 (D.C. Cir. 2025) (citation modified).
Under Article V(1)(b), Venezuela asserts that it was unable to present its case because the
arbitration proceeded with no notice to the 2015 National Assembly and no opportunity to be
heard. Mot. to Dismiss at 24. It further contends that denying the Republic the counsel of its
selection and instead allowing an attorney it did not authorize to represent it denied the Republic
a fundamentally fair hearing. See id. at 18-19. The Court disagrees for three reasons. First,
Venezuela had the opportunity to present its arguments to the tribunal. Second, it was represented
by counsel throughout the entirety of the arbitral proceeding, even if that counsel was not the
counsel of its choice. And lastly, the tribunal’s decision to move forward with Venezuela’s counsel
of record was not arbitrary.
While the Maduro regime, not the 2015 National Assembly, represented Venezuela in its
final arbitration hearing, the Assembly did have notice of the proceedings and a meaningful
opportunity to be heard in them. The 2015 National Assembly sent the tribunal two letters
regarding Venezuela’s representation in the dispute, leaving no doubt that the Assembly knew the
proceedings were taking place. Award ¶¶ 74, 80; cf. First State Ins. Co. v. Banco de Seguros Del
Estado, 254 F.3d 354, 357 (1st Cir. 2001) (finding actual notice, via an intermediary, may satisfy
the requirements of Article V(1)(b)). The tribunal also ordered two rounds of written submissions
on the representation question—and the 2015 National Assembly submitted briefs in both rounds.
Award ¶ 79.
15
Only after providing the 2015 National Assembly with an opportunity to present its case
on the question of Venezuela’s representation did the tribunal decide it could proceed with the
parties’ representatives on record. Procedural Order No. 7 at 12-13; contra Iran Aircraft, 980 F.2d
at 146 (finding a denial of the respondent’s opportunity to present its case when the tribunal barred
the respondent from submitting evidence and then rejected the respondent’s claim for lack of
proof). Venezuela therefore had an opportunity to be heard regarding the question of
representation.
The Court is also unpersuaded that the tribunal’s representation determination prejudiced
Venezuela by denying it an opportunity to make other potentially meritorious contentions.
Venezuela asserts that its 2015 National Assembly would have defended the arbitration by pointing
to corruption in the CADIVI, and asserting that only the Maduro regime, not the state, was liable
for Air Canada’s injuries. Reply at 9-10. Yet this claim is bound up in an assessment of whether
the counsel on record could provide adequate representation to Venezuela. The 2015 Assembly
thus had an opportunity to press this issue when it submitted its briefs regarding the question of
representation. See Procedural Order No. 7 ¶¶ 68-70 (determining Venezuela’s counsel of record
could proceed, in part, because counsel was “willing to cooperate and defend Venezuela’s interests
in th[e] case throughout the end”). “The fact that the [t]ribunal chose not to implement
Venezuela’s preferred [outcome] . . . does not itself constitute a due-process violation.” Gold
Rsrv., 146 F. Supp. 3d at 131.
Second, the nature of Venezuela’s representation did not deny it a fundamentally fair
hearing. Venezuela was afforded the assistance of counsel throughout the entire arbitration. True,
Venezuela may not have had its counsel of choice for a portion of the proceedings, because
agreeing to Venezuela’s counsel of choice would have required the tribunal to identify Venezuela’s
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rightful leader, a question beyond the jurisdiction of the tribunal. But the right to choice of counsel
is not absolute.
Even in American courts, a civil litigant’s right to chosen counsel can be overridden by a
compelling and countervailing interest. See Zaid v. Exec. Off. of President, 815 F. Supp. 3d 113,
132 (D.D.C. 2025) (“A litigant’s right to counsel in civil cases includes the right to the counsel of
their choice . . . [but] that right is not absolute and can be overridden when compelling reasons
exist.”). And a court’s refusal to hear a civil litigant through his hired counsel is only a denial of
a hearing if that refusal is arbitrary. See Powell v. Alabama, 287 U.S. 45, 69 (1932); Lewis v.
Lane, 816 F.2d 1165, 1169 n.7 (7th Cir. 1987) (reviewing the district court’s denial of a litigant’s
motion for substitution of counsel for abuse of discretion).
It is undisputed that foreign arbitral tribunals confer less protection—Article V of the New
York Convention requires only “a fundamentally fair hearing” with “the minimal requirements of
fairness.” Gold Rsrv., 146 F. Supp. 3d at 127 (emphasis added); see also Generica Ltd. v. Pharm.
Basics, Inc., 125 F.3d 1123, 1130 (7th Cir. 1997) (“[P]arties that have chosen to remedy their
disputes through arbitration rather than litigation should not expect the same procedures they
would find in the judicial arena.”).
The tribunal’s rejection of the 2015 National Assembly’s choice of counsel did not abridge
these minimal requirements of fairness because the rejection was not arbitrary. In its procedural
order denying the 2015 National Assembly’s motion to intervene, the tribunal explained that by
continuing with Venezuela’s counsel of record it avoided the harm of further delay to the
proceedings and conferred the benefits of consistency and integrity. Procedural Order No. 7 ¶¶ 67-68. The tribunal also found that continuing with the Maduro regime’s representation would not
prejudice Venezuela because granting the Assembly’s motion to intervene was not required to
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guarantee that Venezuela’s interests were protected. Id. The tribunal thus found that compelling
and countervailing interests outweighed the Assembly’s desire to select Venezuela’s
representative. While Venezuela may disagree with the tribunal’s conclusions, this Court cannot
say that its decision was arbitrary.
In short, Venezuela lacks a viable Article V(1)(b) defense because it received a
fundamentally fair hearing. It was notified of the arbitral proceeding and benefited from the
assistance of counsel throughout. When the 2015 National Assembly raised the issue of
Venezuela’s rightful representation, the tribunal provided the Assembly an opportunity to present
its case. And the arbitral tribunal supplied a reasoned explanation for its decision to proceed with
Venezuela’s counsel of record. Article V(1)(b) of the New York Convention did not require more.
CONCLUSION
Under the FAA, this Court must confirm and enforce a foreign arbitral award unless it finds
grounds for refusal specified in the New York Convention. 9 U.S.C § 207. Because none of
Venezuela’s affirmative defenses under Article V of the Convention are meritorious, the Court
will deny Venezuela’s motion to dismiss and grant Air Canada’s petition to confirm its arbitral
award. A separate order will accompany this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Date: August 14, 2026
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