Representation Is Not Recognition: A New Chapter in Award Enforcement

When a State has two governments, who gets to arbitrate?

The D.C. District Court has just given a remarkably pragmatic answer in Air Canada v. Venezuela. The case was never really about aviation: it was about something far more fundamental — whether an arbitral award becomes unenforceable because the “wrong” government represented the State during the arbitration.

The Court said no. Three takeaways stand out:
> Recognition is not representation: enforcing an award is not the same as recognising the government that appeared in the arbitration.
> Kompetenz-Kompetenz has real teeth: a tribunal may decide whether proceedings can continue despite a constitutional crisis affecting a State’s representation.
> Due process protects participation, not strategic paralysis: the relevant question is whether the competing claimant to representation had a meaningful opportunity to be heard — not whether it obtained its preferred counsel.

The most insightful passage comes from the Court’s reasoning: if every dispute over governmental legitimacy automatically froze arbitral proceedings, any State facing an internal power struggle could effectively immunise itself from arbitration.

That is a powerful reminder that international arbitration is designed to survive political instability, not surrender to it. For practitioners, this decision is likely to become a leading authority on the intersection of Article V of the New York Convention, State representation, and the limits of the public policy defence.