Doraleh Container Terminal Sa v. Republic of Djibouti

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 22, 2024 Decided July 30, 2024
No. 23-7023
DORALEH CONTAINER T ERMINAL SA,
APPELLEE
v.
REPUBLIC OF DJIBOUTI ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02571)
Matthew M. Madden argued the cause for appellant. With
him on the briefs was Jason A. Shaffer.
Dennis H. Hranitzky argued the cause for appellee. With
him on the brief were Debra O’Gorman and Alexander H.
Loomis.
Before: RAO and C HILDS , Circuit Judges, and ROGERS ,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.

-- 1 of 34 --

2
Dissenting opinion filed by Senior Circuit Judge ROGERS .
RAO, Circuit Judge: When counsel appears for a party, we
presume the lawyer was authorized to do so. This case presents
the unusual situation in which a lawyer’s authority to represent
his purported client has been challenged.
In a long running dispute between the Republic of Djibouti
and Doraleh Container Terminal (“Doraleh”), Doraleh
obtained a $474 million arbitral award against Djibouti.
Djibouti then nationalized a majority interest in Doraleh, and a
Djiboutian court appointed a provisional administrator to
manage the company. Purporting to represent Doraleh, the law
firm Quinn Emanuel sought to enforce the arbitral award in
district court. But the administrator said she did not authorize
the filing, and Djibouti asked the district court to dismiss the
case. The district court entered judgment for Doraleh, holding
that Quinn Emanuel’s authority was irrelevant or, in the
alternative, that Djibouti had forfeited the issue.
We disagree. Applying longstanding legal principles, we
hold that Quinn Emanuel’s authority is relevant and that the
issue of a lawyer’s authority can be challenged at any point in
litigation. Because Djibouti presented evidence raising
substantial questions about Quinn Emanuel’s authority, the
court was required to determine whether the law firm had
authority to file this suit. We therefore vacate the judgment and
remand for the district court to determine Quinn Emanuel’s
authority to represent Doraleh.
I.
A.
This dispute concerns a public-private partnership in
which Djibouti contracted with Doraleh to build and manage a

-- 2 of 34 --

3
new port for container ships. Two-thirds of Doraleh, a
Djiboutian corporation, was owned by Port de Djibouti SA, a
government affiliated corporation. DP World, a Dubai
corporation with expertise in port construction and
management, owned the other one-third but was given the right
to control Doraleh.
The port was a financial success—perhaps too much of a
success. Disputes over control spawned arbitral challenges and
litigation in Djibouti and England. Despite an exclusivity
provision in its contract with Doraleh, Djibouti built a
competing port. Djibouti then tried to force Doraleh out of the
original port. Djibouti initiated arbitration in the London Court
of International Arbitration to void the contract, claiming it was
the product of bribery and corruption. When that failed,
Djibouti enacted a law authorizing it to renegotiate or terminate
Doraleh’s contract. After Doraleh refused to negotiate,
Djibouti terminated the contract and seized the original port.
Doraleh convened a second arbitral panel, which held the
contract termination was invalid and Doraleh’s contract to
manage the port remained binding.
In light of its arbitral loss, Djibouti switched course.
Instead of trying to terminate Doraleh’s contract, Djibouti
sought to take control of the company. A presidential
ordinance, later ratified by statute, nationalized Port de
Djibouti’s two-thirds ownership interest in Doraleh. Djibouti
then sued in its own courts, and, as the new majority
shareholder of Doraleh, claimed DP World was abusing its
control rights. The Djiboutian court agreed and appointed a
provisional administrator, Chantal Tadoral, ostensibly
independent of either shareholder, to manage Doraleh in place
of the board of directors controlled by DP World.

-- 3 of 34 --

4
Despite these setbacks, Doraleh and DP World secured
one notable victory. When Djibouti initiated the first arbitration
to void the contract, Doraleh and DP World counterclaimed for
breach of contract. Quinn Emanuel represented both
corporations.1 Djibouti did not participate in the counterclaim
proceedings. The arbitral panel began considering the breach
of contract claims shortly before Djibouti’s nationalization of
Port de Djibouti’s stake in Doraleh and Tadoral’s appointment.
Tadoral notified the panel that Quinn Emanuel lacked authority
to continue representing Doraleh in the arbitration and,
purporting to act on behalf of Doraleh, asked for a stay of the
proceedings. Quinn Emanuel disputed the validity of Tadoral’s
appointment. Denying the stay request, the tribunal declined to
determine Tadoral’s authority because it was not relevant to the
merits and the authority dispute arose after any further
participation was needed from either party. The tribunal
awarded Doraleh $474 million, plus interest, for Djibouti’s
contract breaches.2 Tadoral, Doraleh’s provisional
administrator, has taken no steps to enforce the award against
Djibouti.
1 Doraleh executed a 2014 power of attorney authorizing Quinn
Emanuel to represent it in the arbitration and “any other related
matters.” After Djibouti raised doubts about whether the
counterclaims had been properly authorized, Doraleh’s Board of
Directors, “for the avoidance of doubt,” ratified Quinn Emanuel’s
engagement in a 2016 resolution.
2 The arbitral panel also awarded DP World $148 million, plus
interest, based on its separate counterclaims. DP World enforced that
award in a separate proceeding. Judgment, DP World Djib. FZCO v.
Republic of Djibouti, No. 1:23-cv-01524 (D.D.C. July 24, 2024).
Quinn Emanuel also represented DP World in that proceeding.

-- 4 of 34 --

5
B.
Quinn Emanuel, claiming to represent Doraleh, petitioned
to enforce the arbitral award in the District Court for the
District of Columbia. Djibouti asserted an affirmative defense
that the “attorneys who filed [the petition] … lack the authority
to do so.” This lack of authority, Djibouti argued, created
several problems. If Doraleh had not authorized the filing, no
petition to enforce the award was made by a “party to the
arbitration,” as required by law. See 9 U.S.C. § 207. And there
would be no Article III case or controversy between adverse
parties. Djibouti maintained that because it had raised a dispute
about Quinn Emanuel’s authority, the court was required to
verify that Doraleh had authorized the petition to enforce the
arbitral award.
Djibouti moved to compel discovery on Quinn Emanuel’s
authority to act for Doraleh, attaching a declaration by Tadoral
that she had not authorized the petition. Quinn Emanuel
opposed discovery, arguing its authority had “no bearing” on
whether to enforce the arbitral award. The district court denied
the motion to compel discovery, concluding Djibouti forfeited
any objection to Quinn Emanuel’s authority to file the
enforcement petition by not raising a challenge to the firm’s
authority in arbitration.
Djibouti later filed a second declaration from Tadoral
requesting the case “be dismissed without prejudice as having
been filed and prosecuted in [Doraleh’s] name without
authority” and expressly revoking any remaining authority
Quinn Emanuel had to represent Doraleh.
The district court entered judgment for Doraleh and
confirmed the arbitral award. Doraleh Container Terminal SA
v. Republic of Djibouti, 656 F. Supp. 3d 223, 236 (D.D.C.
2023). It rejected Djibouti’s authority argument on two

-- 5 of 34 --

6
alternative grounds. First, the court held that Djibouti forfeited
the authority argument, which was a “challenge [to] the award
on grounds that could have been brought before the arbitrator”
but were not. Id. at 233. Second, the court held that Quinn
Emanuel’s authority was irrelevant because the statute
implementing the New York Arbitration Convention limits the
reasons to refuse enforcement of arbitral awards to those listed
in the Convention, and lack of attorney authority is not a listed
reason. Id. at 233–34.
Djibouti appealed, arguing the district court erred by
entering judgment without determining whether Doraleh
authorized Quinn Emanuel to file this petition to enforce the
arbitral award.
II.
Challenges to an attorney’s authority to represent a party
rarely arise in modern litigation, but the governing principles
are well established in Supreme Court decisions and a
traditional understanding of our adversarial judicial system.
An attorney’s authority to represent his client “must
indeed exist.” Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.)
738, 830 (1824). Such authority is presumed, Hill v.
Mendenhall, 88 U.S. (21 Wall.) 453, 454 (1874), and the
presumption is rarely challenged.3 But courts have the “power,
3 Perhaps because of how rare attorney authority challenges are, the
Federal Rules of Civil Procedure do not address them. Rule 9
includes procedures for challenging “a party’s authority to sue or be
sued in a representative capacity.” F ED. R. CIV. P. 9(a)(1)(B). Rule 9
procedures, however, do not apply to disputes about whether the
lawyer has authority to represent the named party. They apply
instead to situations in which the named party represents a separate

-- 6 of 34 --

7
at any stage of the case, to require an attorney, one of its
officers, to show his authority to appear.” Pueblo of Santa Rosa
v. Fall, 273 U.S. 315, 319 (1927). This stems from a court’s
“duty … to superintend the conduct of its officers.” Id. Federal
courts have recognized this basic principle for more than two
hundred years. As Justice Washington explained, it is an
“absolute” rule that the court has “the power to inquire by what
authority an attorney” undertakes a representation. The King of
Spain v. Oliver, 14 F. Cas. 577, 578 (C.C.D. Pa. 1810) (No.
7,814). This court has similarly recognized our “undoubted
power to require counsel before us to demonstrate their
authority.” Donnelly v. Parker, 486 F.2d 402, 405 n.6 (D.C.
Cir. 1973); see also McLean v. Burkinshaw, 107 F.2d 665,
665–66 (D.C. Cir. 1939) (per curiam) (recognizing district
court’s authority to do the same); Booth v. Fletcher, 101 F.2d
676, 683 (D.C. Cir. 1938).
When a party requests the court inquire into the lawyer’s
authority and presents evidence showing “sufficient ground to
question the authority,” the request is “always granted.”4 W.A.
Gage & Co. v. Bell, 124 F. 371, 380 (W.D. Tenn. 1903); see
McKiernan v. Patrick, 5 Miss. (4 Howard) 333, 335 (1840)
(“[W]here it is shown to the court that injury or oppression is
happening, or is likely to happen, the court will interpose, and
require an attorney to show his authority.”). A court need not
consider “light or frivolous grounds” for a challenge to an
attorney’s authority but must evaluate “substantial reasons.”
entity, such as when executors and guardians sue in their own names.
See F ED. R. CIV. P. 17(a), (c).
4 Courts may consider context when determining whether sufficient
grounds for questioning authority have been presented. But contrary
to the dissent’s suggestion, courts do not have discretion to refuse to
require an attorney to show his authority when such grounds are
present.

-- 7 of 34 --

8
Tally v. Reynolds, 1 Ark. 99, 104 (1838). This has long been
the “settled rule” in “most, if not all” states as well as the
“courts of England.” Id. The court has “discretion” “as to the
time and manner of calling for” the lawyer’s authority.5 Pueblo
of Santa Rosa, 273 U.S. at 319 (cleaned up).
As for the remedy, “[a] suit initiated without authority
from the party named as plaintiff is a nullity and any judgment
obtained in such a suit is void.” Meredith v. The Ionian Trader,
279 F.2d 471, 473–74 (2d Cir. 1960). If the court finds the
plaintiff’s counsel lacked authority to bring the suit, the suit
must be dismissed “without prejudice.”6 Pueblo of Santa Rosa,
273 U.S. at 321; see also Frye v. County of Calhoun, 14 Ill.
132, 134 (1852) (holding that when a plaintiff’s attorney fails
to show his authority, the case “should be summarily
dismissed”).
Djibouti argued before the district court that Quinn
Emanuel lacked authority to represent Doraleh and provided
declarations from Tadoral, the Djiboutian-court-appointed
5 Contrary to the dissent’s suggestion, our review is not limited to the
traditional abuse of discretion standard. The cases make clear that the
power to inquire into an attorney’s authority is possessed
concurrently by appellate courts. See Pueblo of Santa Rosa, 273 U.S.
at 319. Unlike matters committed to the district court’s exclusive
discretion, we have the power and duty to look into an attorney’s
authority, or direct the district court to look into it, regardless of how
the district court exercised its discretion in the first instance.
6 While some cases recognize a court’s discretion as to the remedy,
in practice, when a court determines the plaintiff’s attorney lacks
authority, the suit is dismissed. See Pueblo of Santa Rosa, 273 U.S.
at 319, 321 (quoting language from The King of Spain, 14 F. Cas. at
578, that the remedy is “in the discretion of the Court” before
ordering the case remanded with instructions to dismiss without
prejudice).

-- 8 of 34 --

9
provisional administrator, stating that she did not authorize this
suit. The district court erroneously concluded it could not
address the merits of these authority arguments. Tadoral’s
declarations set forth the type of substantial reasons that create
“sufficient ground to question the authority.” W.A. Gage & Co.,
124 F. at 380. We therefore agree with Djibouti that the district
court should have determined Quinn Emanuel’s authority to
represent Doraleh.
III.
Echoing the district court, Quinn Emanuel offers two
reasons we cannot consider its authority despite this long-
standing procedural rule, but neither can be squared with the
longstanding principles reflected in our caselaw.
A.
First, Quinn Emanuel argues Djibouti forfeited any
challenge to the firm’s authority by not raising it during
arbitration. Challenges to a lawyer’s authority, however, are
not subject to the standard forfeiture rules and may be raised
“at any stage of the case,” including on appeal. Pueblo of Santa
Rosa, 273 U.S. at 319. Even under the forfeiture rules that
generally govern arbitration, there was no forfeiture here.
1.
“Whether, as a matter of practice, the challenge to the
authority of counsel” was forfeited—or, as the Court more
colorfully put it, “was seasonably interposed”—“is not
important to decide.” Id. “[T]he objection” to an attorney’s
authority, “is good at any time.” Sutherland v. Int’l Ins. Co. of
N.Y., 43 F.2d 969, 972 (2d Cir. 1930) (L. Hand, J.). As the cases
recognize, the absence of attorney authority would jeopardize
the fairness of judicial proceedings in ways that warrant

-- 9 of 34 --

10
departing from the traditional forfeiture rules. Courts must
prevent the judicial process from being “used for the purpose
of vexation or fraud.” Pueblo of Santa Rosa, 273 U.S. at 319
(quoting The King of Spain, 14 F. Cas. at 578). Moreover,
dismissing cases brought without authorization prevents the
problems caused after those cases reach judgment. Most courts
do not give these judgments their full effect. They are often
void or voidable, see, e.g., Shelton v. Tiffin, 47 U.S. (6 How.)
163, 186 (1848), or lack preclusive effect, see, e.g., 18A
CHARLES ALAN W RIGHT , ARTHUR R. M ILLER & EDWARD H.
COOPER, FEDERAL PRACTICE AND PROCEDURE § 4449 & n.3
(3d ed. 2017). Because of this, the plaintiff could “play fast and
loose with the defendant, holding him to the judgment if [the
plaintiff] wins, and repudiating it, if [the plaintiff] loses.”7
Sutherland, 43 F.2d at 971.
Authority challenges also protect rights of parties not
before the court. In this case, if Tadoral lawfully controls
Doraleh, she and Doraleh have a significant interest in the case
being dismissed. If Djibouti’s inaction could forfeit authority
7 While a challenge to attorney authority can be raised later in
litigation, parties have incentives to raise it promptly. Inaction by the
purported plaintiff who becomes aware of the case risks creating
apparent authority or ratifying actions taken without authority. See,
e.g., Bacon v. Mitchell, 106 N.W. 129, 130 (N.D. 1905); Cyphert v.
McClune, 22 Pa. 195, 197–98 (1853); Teter v. Irwin, 71 S.E. 115,
119 (W. Va. 1911); see also RESTATEMENT (T HIRD ) OF AGENCY
§§ 2.03, 4.01 (AM. L. I NST . 2006) (defining apparent authority and
ratification); WRIGHT & M ILLER, supra, § 4449 (“Unauthorized
commencement of an action by another ordinarily should not make
the named plaintiff a party, unless the named plaintiff has himself
done something that makes it reasonable for an adversary to believe
the action is authorized.”). No such inaction is present here because
Djibouti promptly filed Tadoral’s declaration alleging that Quinn
Emanuel lacked authority.

-- 10 of 34 --

11
challenges, that forfeiture would impair Tadoral’s and
Doraleh’s rights.
We need not close our eyes to the apparent relationship
here between Tadoral and Djibouti. Quinn Emanuel, for
example, has alleged that Tadoral is “an agent or
instrumentality of” Djibouti and that she has “a direct conflict
of interest” with Doraleh. Even if such a relationship exists,
however, it does not undermine the general rule that a
defendant’s failure to timely raise an authority issue does not
forfeit a potentially unrepresented plaintiff’s rights.
Because authority challenges vindicate important interests
of parties and non-parties and protect the integrity of judicial
proceedings, Djibouti’s failure to raise an authority challenge
during arbitration does not prevent a federal court from
considering Quinn Emanuel’s authority to file this petition.
2.
Moreover, even under the forfeiture rules that generally
govern arbitration, Djibouti did not forfeit its authority
challenge.
In general, a party who does not raise defenses that would
have applied during arbitration forfeits those defenses. See,
e.g., Europcar Italia, S.p.A. v. Maiellano Tours, Inc., 156 F.3d
310, 315 (2d Cir. 1998). This enforcement lawsuit, however,
does not implicate that rule. Djibouti could not have challenged
Quinn Emanuel’s authority as a defense during arbitration. As
Quinn Emanuel explained, the authority dispute was
“irrelevant” to the merits of the arbitration. And importantly,
Tadoral did not purport to terminate Quinn Emanuel’s
authority to represent Doraleh until after the firm’s work on the
merits of the arbitration was complete. So the arguments for

-- 11 of 34 --

12
why Quinn Emanuel lacks authority in this court are based on
different facts than those present during the arbitration.
The dissent’s forfeiture argument rests primarily on the
fact that the arbitral panel asked the parties about the validity
of Tadoral’s appointment. But the panel asked only for the
narrow purpose of deciding Tadoral’s last minute request to
stay the arbitration. Quinn Emanuel convinced the arbitral
panel to deny the stay without deciding the authority issue
because, regardless of who controlled Doraleh, the stay request
came too late. Finding a forfeiture here would allow Quinn
Emanuel to argue an issue is unnecessary to decide in
arbitration and then turn around and argue to the district court
that Djibouti forfeited a defense on the same issue. Quinn
Emanuel cannot have it both ways.
Finally, the authority issue was raised and fully briefed
during arbitration by Quinn Emanuel and Tadoral—the parties
most affected by the dispute. The arbitral panel acknowledged
“the powerful points to be made on both sides,” but then
declined to address the validity of Tadoral’s appointment
because it was irrelevant to the merits issues. It is unclear why
Djibouti needed to separately press the issue. In these
circumstances, we decline to find Djibouti forfeited the
challenge to Quinn Emanuel’s authority.8
8 At bottom, our disagreement with the dissent is rather narrow. We
conclude the arbitral panel did not decide the authority issue Tadoral
raised because Quinn Emanuel’s loss of authority—if it lost
authority—came too late to affect the arbitration. And the dissent
fails to explain what unauthorized acts Djibouti could have objected
to when Tadoral revoked Quinn Emanuel’s authority only after no
further action by the firm was needed.

-- 12 of 34 --

13
B.
Quinn Emanuel also argues that its authority cannot be
considered because attorney authority is not one of the reasons
listed in the New York Convention for denying enforcement of
an arbitral award. See 9 U.S.C. § 207; Convention on the
Recognition and Enforcement of Foreign Arbitral Awards
(“New York Convention”) art. V, June 10, 1958, 330 U.N.T.S.
3, 40.
While it is true that attorney authority does not explicitly
appear as a ground for denying enforcement, it remains a basic
principle that filings made by attorneys without the party’s
consent are a “nullity.” The Ionian Trader, 279 F.2d at 473.
This conforms with the rule that “[a]n unauthorized appearance
is generally ineffectual for any purpose.” 6 C.J.S. Appearances
§ 19 (2023) (collecting cases). If Doraleh did not authorize this
petition, then there is no petition on which to grant or deny
enforcement of the arbitral award.
The New York Convention does not abrogate this
procedural rule. The Convention requires signatory countries
to “recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where
the award is relied upon.” New York Convention, supra, art.
III, 330 U.N.T.S. at 40. The implementing statute applies the
Federal Arbitration Act’s procedures to petitions to enforce
arbitral awards under the Convention. See 9 U.S.C. § 208
(applying the Federal Arbitration Act to § 207 petitions when
they are not in conflict). The Federal Arbitration Act provides
that petitions for enforcement “shall be made and heard in the
manner provided by law for the making and hearing of
motions.” Id. § 6. The Supreme Court has recently reiterated
that this “directive … is simply a command to apply the usual

-- 13 of 34 --

14
federal procedural rules.” Morgan v. Sundance, Inc., 142 S. Ct.
1708, 1714 (2022).
Applying usual procedural rules makes good sense. If lack
of attorney authority is not a ground for denying enforcement,
as the dissent maintains, a court would need to enforce an
arbitral award even when a stranger to the arbitration files a
§ 207 petition in the name of an award recipient. Such an
approach is untenable and inconsistent with longstanding
precedent. Instead, Djibouti’s challenge to Quinn Emanuel’s
authority must be governed by the usual rules of federal court
procedure.
* * *
When presented with Tadoral’s declarations, the district
court had an obligation to determine whether Doraleh
authorized Quinn Emanuel to file this petition.
IV.
Quinn Emanuel asks this court to reach the question of
authority and affirm because the firm was authorized to
represent Doraleh. Given the limited briefing on the
complicated issues involved, we remand for the district court
to determine Quinn Emanuel’s authority in the first instance.
See Donnelly, 486 F.2d at 405 n.6. While leaving that factual
question to the district court, “we can provide some guidance
for the task to be tackled on remand.” Affum v. United States,
566 F.3d 1150, 1159 (D.C. Cir. 2009) (cleaned up).
An attorney’s authority generally depends on traditional
agency law concepts such as actual authority, apparent
authority, and ratification. See RESTATEMENT (THIRD ) OF THE
LAW GOVERNING LAWYERS §§ 26–27 (AM . L. I NST . 2000). The
dispute in this case is about actual authority. The scope of an

-- 14 of 34 --

15
attorney’s actual authority usually depends on the contract
between the lawyer and client and any instructions from the
client. Id. § 21. Subject to exceptions requiring notice to and
permission from tribunals in pending matters, a client can
revoke his lawyer’s authority. Id. §§ 31–32.
Quinn Emanuel claims Doraleh’s 2014 power of attorney
and 2016 board resolution authorized the filing of this petition
in 2020. Quinn Emanuel also maintains that it needed no
further authorization from Doraleh. The district court should
assess both of these arguments in the first instance.
Djibouti argues that even if the written authorizations
would have sufficed, Tadoral has since revoked the firm’s
authority. Quinn Emanuel counters that Tadoral lacked
authority to do so. To determine the validity of this revocation
or any other instructions Tadoral has given to Quinn Emanuel,
the district court will need to resolve whether Tadoral had
authority to act on Doraleh’s behalf.
At the outset, the district court should accept any motions
to compel arbitration—either about Quinn Emanuel’s authority
to represent Doraleh or, more narrowly, about Tadoral’s
authority to act on behalf of Doraleh. Quinn Emanuel points to
several contracts with arbitration clauses, including Doraleh’s
Articles of Incorporation and the Joint Venture Agreement.
The Djiboutian court order appointing Tadoral, however,
determined the Articles of Incorporation’s arbitration clause
did not apply. Doc. 37-5 at 6. If a party moves to compel
arbitration, the district court should decide what country’s law
governs the applicable arbitration clause; what effect, if any, to
give to previous decisions interpreting the clause; and what
issues are subject to arbitration.
If no motion to compel arbitration is filed or the motion is
denied, the district court should determine Quinn Emanuel’s

-- 15 of 34 --

16
authority. In addition to any other issues briefed by the parties
or raised by the district court, the following questions may be
relevant to the question of authority.
First, does a choice of law provision apply? At oral
argument, Quinn Emanuel said the parties “plainly chose” to
be “governed by English law to resolve any questions arising
from disputes, management disputes, among the parties.” Oral
Arg. at 26:00–26:20. But when the arbitral panel asked
“whether there is any ground upon which the tribunal could
refuse to apply Djibouti[an] law as to the validity of [Tadoral’s]
appointment,” Quinn Emanuel did not invoke such a provision.
See Doc. 39-15 at 2; Doc. 39-17 at 6–7. For the narrow issue
of what actions were authorized by the 2014 power of attorney,
that contract “is governed by English law.” Doc. 37-3 at 1.
Second, does it matter if, as Quinn Emanuel claims on
appeal, “a [United Kingdom] court enjoined Djibouti from
commencing its Djibouti[an] proceedings to appoint” Tadoral?
This injunction is not part of the record. On remand, the district
court should consider whether Tadoral’s appointment violates
the 2018 injunction, and, if so, the consequences for Quinn
Emanuel’s authority.
Third, does the internal affairs doctrine apply? The
“management of the internal affairs of a corporation” is
generally left to the place of incorporation. See, e.g., Rogers v.
Guar. Tr. Co. of N.Y., 288 U.S. 123, 130 (1933). Quinn
Emanuel argues we should ignore the Djiboutian court order
appointing Tadoral because it “is repugnant to U.S. public
policy.” For support, the firm points to cases where courts
refuse to enforce foreign money judgments due to public policy
concerns. The district court may need to decide whether this
public policy exception to enforcing foreign money judgments
extends to foreign court orders concerning the internal affairs

-- 16 of 34 --

17
of a corporation. Even if a public policy exception generally
applies, would applying it here violate the act of state doctrine?
See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398,
416 (1964) (holding American courts “will not sit in judgment
on the acts of the government of another done within its own
territory”) (cleaned up); see also Port de Djib. S.A. v. DP World
Djib. FZCO [2023] EWHC 1189 (Comm) [53] (Eng.)
(discussing Port de Djibouti’s invocation of the act of state
doctrine in a related arbitration). Or, might the Federal
Arbitration Act’s prohibition on using the act of state doctrine
as a reason to refuse “[e]nforcement” or “confirmation of
arbitral awards” extend to this procedural issue? 9 U.S.C. § 15.
Finally, for the remedy, if the suit was “brought by counsel
without authority,” then the case should be dismissed “without
prejudice” to a future suit “properly brought” by Doraleh.
Pueblo of Santa Rosa, 273 U.S. at 321 (emphasis added). If the
district court finds that Quinn Emanuel had authority to file the
petition but has since lost its authority to represent Doraleh, the
district court should decide the appropriate remedy.
* * *
In our adversarial system, a party controls the litigation
conducted in its name. To preserve that control, courts
presented with evidence raising substantial questions about a
lawyer’s authority should determine whether the party
authorized the lawyer’s representation. We therefore vacate the
judgment and remand for the district court to determine Quinn
Emanuel’s authority to represent Doraleh.
So ordered.

-- 17 of 34 --

ROGERS, Senior Circuit Judge, dissenting: This is an
appeal from the confirmation of an international arbitration
award. The Republic of Djibouti entered into a contract to
build and operate a port. The contract included a broad
arbitration clause, Article 20. The majority allows Djibouti to
escape forfeiture of an issue that it had the opportunity to
present during arbitration and expressly declined. The district
court rejected Djibouti’s challenge to its subject matter
jurisdiction in the confirmation proceeding, recognizing that it
was a “disguise” to avoid forfeiture of the same issue during
arbitration. So must this court. Accordingly, I respectfully
dissent.
I.
The international commercial arbitration framework was
created in response to concerns from businesses and investors
in developed states about the absence of predictable and
evenhanded mechanisms for international dispute resolution,
which presented an impediment to growing international trade.
See Gary B. Born, 1 INTERNATIONAL COMMERCIAL
ARBITRATION 64 (2d ed. 2014). The system of international
arbitration traces its roots to the Geneva Protocol on Arbitration
Clauses of 1923 and the Geneva Convention for the Execution
of Foreign Arbitral Awards of 1927, which together established
the principle that arbitral awards are presumptively valid. Id.
at 67. In 1925, the United States enacted the Federal
Arbitration Act, 9 U.S.C. §§ 1–16, to “reverse decades of
judicial mistrust in the United States of arbitration and render
arbitration agreements enforceable on the same terms as other
contracts. From the outset, U.S. judicial decisions embraced
the Act’s avowedly pro-arbitration objectives.” Born,

-- 18 of 34 --

2
INTERNATIONAL COMMERCIAL ARBITRATION at 68 (citing
Marine Transit Corp. v. Dreyfus, 284 U.S. 263 (1932)).
The contemporary legal regime for international
arbitration was then “developed in significant part during the
second half of the 20th century, with countries from all parts of
the globe entering into international arbitration conventions
and enacting national arbitration statutes designed specifically
to facilitate the arbitral process.” Id. at 98. Courts then
interpreted those international agreements and national
legislation, “giv[ing] effect to these legislative instruments,
[and] often extending or elaborating on their terms.” Id. The
uniformity of these principles, in turn, gave rise to an
“avowedly ‘pro-arbitration’ regime [that] ensures the
enforceability of both arbitration agreements and arbitral
awards, gives effect to the parties’ procedural autonomy and
the arbitral tribunal’s procedural discretion[,] and seeks to
insulate the arbitral process from interference by national
courts or other governmental authorities.” Id.
A key cornerstone of the development of that system was
the 1958 Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, also known as the New York
Convention:
[T]he Convention’s introduction of uniform
international legal standards mandatorily requiring the
recognition and enforcement of international arbitration
agreements, subject to only specified exceptions, was
also a bold advance, as was the Convention’s emphatic
recognition of the predominant role of party autonomy
in the arbitral process. Taken together, the
Convention’s provisions regarding the recognition of
arbitral awards and agreements provided an

-- 19 of 34 --

3
international legal framework within which the arbitral
proceedings could be conducted largely in accordance
with the parties’ desires and the arbitrators’ directions,
and whose results could be effectively enforced in
national courts around the world.
Id. at 103; see also Scherk v. Alberto-Culver Co., 417 U.S. 506,
520 n.15 (1974).
International commercial arbitration has succeeded in part
because of its emphasis on consent and autonomy.
“International commercial arbitration is a fundamentally
consensual means [for] dispute resolution: unless the parties
have agreed to arbitrate, there can be no valid arbitral
determinations of their rights.” Born, INTERNATIONAL
COMMERCIAL ARBITRATION at 97. By agreeing to arbitrate,
parties make a trade, giving up “the procedures and opportunity
for review of the courtroom for the simplicity, informality, and
expedition of arbitration.” Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985).
The Supreme Court has long recognized the importance of
this bargain and the limited judicial role in the confirmation of
international commercial arbitration awards that goes with it.
This limited role promotes the “liberal federal policy favoring
arbitration agreements,” Moses H. Cone Mem’l Hosp. v.
Mercury Constr. Corp., 460 U.S. 1, 24 (1983), which “applies
with special force in the field of international commerce.”
Mitsubishi Motors, 473 U.S. at 631. After all, “[t]he
preeminent concern of Congress in passing the [Federal
Arbitration] Act was to enforce private agreements into which
parties had entered,” and “requires that [courts] rigorously
enforce agreements to arbitrate.” Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 221 (1985). The Supreme Court
emphasized that “we are well past the time when judicial

-- 20 of 34 --

4
suspicion of the desirability of arbitration and of the
competence of arbitral tribunals inhibited the development of
arbitration as an alternative means of dispute resolution.”
Mitsubishi Motors, 473 U.S. at 626–27. The Court therefore
recognized:
The utility of the [New York] Convention in promoting
the process of international commercial arbitration
depends upon the willingness of national courts to let
go of matters they normally would think of as their
own. Doubtless, Congress may specify categories of
claims it wishes to reserve for decision by our own
courts without contravening this Nation’s obligations
under the Convention. But we decline to subvert the
spirit of the United States’ accession to the Convention
by recognizing subject-matter exceptions where
Congress has not expressly directed the courts to do so.
Id. at 639 n.21.
As relevant, the Supreme Court has held that the meaning
and application of procedural issues normally decided by a
forum-based decisionmaker, including waiver, time limits,
notice, laches, and estoppel, are to be decided by the arbitrators
if they serve as a precondition of arbitration. See, e.g., Howsam
v. Dean Witter Reynolds, Inc., 537 U.S. 79, 86 (2002); BG Grp.,
PLC v. Republic of Argentina, 572 U.S. 25, 34–35 (2014);
Moses H. Cone Mem’l Hosp., 460 U.S. at 25. And, in keeping
with the Supreme Court’s guidance, this court has noted that
“‘judicial review of arbitral awards is extremely limited’ and .
. . [the court] ‘do[es] not sit to hear claims of factual or legal
error by an arbitrator as [it would] in reviewing decisions of
lower courts.’” Teamsters Loc. Union No. 61 v. United Parcel
Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (quoting Kanuth

-- 21 of 34 --

5
v. Prescott, Ball & Turben, Inc., 949 F.2d 1175, 1178 (D.C. Cir.
1991)); see also Burchell v. Marsh, 58 U.S. (17 How.) 344, 348
(1855).
Accordingly, confirmation proceedings under the New
York Convention are quite narrow. The treaty generally
“obligates participating countries to honor international
commercial arbitration agreements and to recognize and
enforce arbitral awards rendered pursuant to such agreements.”
Comm’ns Imp. Exp. S.A. v. Republic of the Congo, 757 F.3d
321, 324 (D.C. Cir. 2014) (citing N.Y. CONV’N Arts. I, II, III).
Confirmation proceedings, as this court has long recognized,
are not vehicles to relitigate issues in the arbitration, and
signatory nation courts may only decline confirmation based on
seven defenses enumerated in Article V of the Convention. See
TermoRio S.A. E.S.P. Grp., LLC v. Electranta S.P., 487 F.3d
928, 933–35 (D.C. Cir. 2007).
For similar reasons of finality and efficiency, our sister
circuits have held that arguments not brought before the
arbitrators are forfeited. See, e.g., Europcar Italia, S.p.A. v.
Maiellano Tours, Inc., 156 F.3d 310, 315 (2d Cir. 1998); Nat’l
Wrecking Co. v. Int’l Bhd. of Teamsters, Loc. 731, 990 F.2d 957,
961 (7th Cir. 1993). The Seventh Circuit explained that
“[p]ermitting parties to keep silent during arbitration and raise
arguments in enforcement proceedings would undermine the
purpose of arbitration which is to provide a fast and
inexpensive method for the resolution of . . . disputes.” Nat’l
Wrecking, 990 F.2d at 960–61 (quotations and citations
omitted).

-- 22 of 34 --

6
II.
The district court properly performed its narrow role in the
arbitration award confirmation proceeding. Although Djibouti
characterizes its objection to confirmation as a challenge to
Quinn Emanuel’s authority to represent Doraleh Container
Terminal (“DCT”), Appellant’s Br. 31, the district court
recognized this was a collateral attack presenting the issue
whether the provisional administrator, or DCT’s pre-
expropriation board of directors, had authority over DCT.
Doraleh Container Terminal SA v. Republic of Djibouti, 656 F.
Supp. 3d 223, 233 (D.D.C. 2023).
In addressing whether DCT was a party under 9 U.S.C.
§ 207, the district court noted that when the provisional
administrator challenged Quinn Emanuel’s authority to
continue to represent DCT in the arbitration proceedings, the
law firm submitted evidence to the arbitral panel showing its
authority had been approved by DCT’s pre-expropriation board
of directors. Id. at 232–33. Djibouti’s authority objection to
DCT “str[uck] the [district court] as a disguised attempt to
challenge the award on grounds that could have been brought
before the arbitrator, rather than an authentic” jurisdictional
challenge. Id. at 233. For “[d]espite an invitation from the
arbitral tribunal to comment on DCT’s authority, Djibouti
declined to respond, and instead raises its argument [in the
federal court] for the first time.” Id.
The district court explained, correctly, that it was not its
“job to engage with questions that could have been addressed
before the arbitrator,” citing the “extremely limited” nature of
confirmation proceedings and the principle that “[i]f a party
fails to raise an issue . . . to the arbitrators, that issue is
forfeited.” Id. (alterations in original) (internal quotations and
citations omitted). Instead, “[i]f Djibouti wanted to dispute

-- 23 of 34 --

7
DCT’s authority to bring a claim, it needed to do so before the
arbitrator[s],” not by “disguis[ing]” its argument as a
jurisdictional challenge. Id. Further, the district court
explained, it could not consider Djibouti’s authority challenge
as an “independent ground” to deny confirmation because
authority is not one of the enumerated defenses under the New
York Convention. Id. at 233–34 (citing TermoRio, 487 F.3d at
935).
In rejecting the district court’s analysis, the majority
overlooks three key facts.
First, the Concession Agreement that Djibouti entered with
DCT when securing foreign investment for the port project
included Article 20. Article 20 provides that “any dispute” or
“claims” in “any way connected with” its contractual terms,
“rights, duties or liabilities” would be subject to arbitration
“under the Rules of Arbitration of the London Centre for
International Arbitration” and that any arbitral award would be
“final and binding.” Concession Agreement, Art. 20 at 61 (Oct.
30, 2006). Djibouti has not challenged the scope or validity of
Article 20 in its agreement to arbitrate. See Appellant’s Br. 16
& n.4. Djibouti itself invoked Article 20 in availing itself of
the arbitral forum when it initiated this arbitration in 2014
seeking to void the Concession Agreement. Djibouti Amend.
Req. for Arb. (Aug. 7, 2014).
Second, the same authority challenge that Djibouti now
presents was ripe during the arbitration proceedings and
Djibouti was given opportunities by the arbitral panel to
present its challenge to Quinn Emanuel’s authority to represent
DCT. Djibouti repeatedly declined. A brief timeline is telling.
Djibouti expropriated DCT in February 2018, seizing
physical control of the port terminal facilities and expelling the

-- 24 of 34 --

8
operating company and personnel from the country. At that
time, Djibouti purported to assume control of DCT and to
unilaterally revoke the Concession Agreement. Djibouti acting
ex parte obtained an order in September 2018 from a Djibouti
court indefinitely replacing DCT’s board members and
appointing Chantal Tadoral as provisional administrator of
DCT.
On November 9, 2018, the arbitral panel convened to
address Djibouti’s petition for arbitration held a hearing on
DCT’s breach-of-contract counterclaims. Consideration of the
counterclaims had been stayed since 2016 to allow commercial
settlement discussions. DCT was represented by the “Quinn
Emanuel” law firm (“QE”), which had represented DCT in the
arbitral proceedings since 2014 and had obtained in September
2018 an English sovereign court order against the removal of
the members of DCT’s board of directors. QE Ltr. to
Arbitrators at 3–4 (Oct. 6, 2018). On November 19,
Administrator Tadoral wrote the arbitral panel to request a stay
of the arbitration proceedings, copying Djibouti’s counsel.
Admr. Tadoral Ltr. to Arbitrators (Nov. 19, 2018). In the letter,
Administrator Tadoral represented that she had revoked Quinn
Emanuel’s authorization to pursue the counterclaims and that a
corporate governance dispute was ongoing in a Djibouti court
with DCT’s pre-existing board. Quinn Emanuel promptly
responded, referencing as evidence of its authority an English
law power-of-attorney agreement entered by DCT’s pre-
existing board of directors and re-ratified in 2016, and arguing
Administrator Tadoral’s appointment was invalid and she
lacked authority to revoke the power-of-attorney agreement.
See QE Ltr. to Arbitrators (Nov. 26, 2018).
The arbitral panel thereupon invited Djibouti and
Administrator Tadoral to respond to Quinn Emanuel’s evidence
of authority to represent DCT and challenges to the

-- 25 of 34 --

9
Administrator’s authority. Emails (Nov. 30 & Dec. 1, 2018).
Djibouti’s counsel acknowledged receipt of the request but did
not file a substantive response. Id. A few days later Quinn
Emanuel sent a second letter to the arbitral panel emphasizing,
among other things, the breadth of the issues that Djibouti
agreed to arbitrate in Article 20, including “any dispute”
regarding DCT’s structure and governance. See QE Ltr. to
Arbitrators (Dec. 4, 2018).
The arbitral panel once more invited Djibouti and
Administrator Tadoral to respond to Quinn Emanuel’s
challenges to Administrator Tadoral’s authority. Email (Dec.
17, 2018). In particular, the arbitral panel invited submissions
on whether Djibouti law, or else English law, governed the
validity of Administrator Tadoral’s appointment, and if
Djibouti law governed, whether Administrator Tadoral’s
appointment was valid under Djibouti law. Id. If Administrator
Tadoral’s appointment was valid, then the counterclaims
presumably would be dismissed. Again, Djibouti
acknowledged receipt of the invitation but still did not file a
substantive response. Email (Dec. 18, 2018). Quinn Emanuel
sent a third letter responding to the arbitral panel’s queries,
stating that English law, not Djibouti law, governed the validity
of Administrator Tadoral’s appointment, and that under
Djibouti law Administrator Tadoral’s provisional powers
would not authorize her to revoke its authority to represent
DCT in the arbitration proceedings. See QE Ltr. to Arbitrators
(Dec. 24, 2018).
On January 3, 2019, the arbitral panel denied
Administrator Tadoral’s application for a stay, referencing the
absence of a request for an arbitral determination of
Administrator Tadoral’s authority. It did not state or imply that
Administrator Tadoral’s request for a stay came too late for the
arbitral panel to decide whether she and not Quinn Emanuel

-- 26 of 34 --

10
had authority over DCT’s counterclaims against Djibouti.
Acknowledging there was a continuing “major dispute”
regarding “the validity” of Administrator Tadoral’s
appointment and authority over DCT, the arbitral panel pointed
out that under the London Court of International Arbitration
(“LCIA”) rules, it had “the power to decide on procedural
matters relating to the conduct of the arbitration.” Decision ¶ 7
(Jan. 3, 2019) (citing LCIA Rules 14, 23; United Kingdom
Arbitration Act 1996 c.23, §§ 33–34). Given all the
circumstances, the arbitral panel decided that “it should NOT
stay the proceedings now.” Id. ¶ 8. Specifically, the arbitral
panel had “not been invited to decide on the question of the
validity of” Administrator Tadoral’s appointment, the
“arbitration had proceeded, without challenge from [Djibouti]
or [Administrator] Tadoral to the stage of a hearing” on DCT’s
counterclaims, and “no further participation by either side was
required” as all that was left was to deliver the award. Id.
Third, the first time Djibouti presented argument to
challenge Quinn Emanuel’s authority to represent DCT was in
2021 during the confirmation proceeding before the district
court. The arbitral panel issued the awards in 2019, and for the
next two years neither Djibouti nor Administrator Tadoral
sought an arbitral determination of Quinn Emanuel and
Administrator Tadoral’s respective authorities through a
request for reconsideration or a new petition for arbitration.
Djibouti does not point to any impediment to arbitrating the
authority challenge. Nor apparently do my colleagues who
would order the district court on remand to “accept any motions
to compel arbitration” on either “Quinn Emanuel’s authority to
represent” DCT or Administrator “Tadoral’s authority to act on
behalf of” DCT. Maj. Op. at 15.
Within the international arbitration system, then, Djibouti
forfeited the challenge to Quinn Emanuel’s authority to

-- 27 of 34 --

11
represent DCT on the counterclaims against Djibouti. The
majority avoids this reality by ignoring both the substantial
financial liability confronting Djibouti in the arbitration
proceedings due to DCT’s counterclaims, and Djibouti’s
silence in the face of the arbitral panel’s invitations to respond
to Quinn Emanuel’s evidence of authority and argument that
Administrator Tadoral lacked authority — as if Djibouti had
never agreed to Article 20 in the Concession Agreement. And
the majority excuses Djibouti’s repeated forfeitures of the
authority challenge by inventing a rationale not found in the
arbitral panel’s decision denying the stay. Id. at 12. As the
district court found, Djibouti now seeks to avoid the
consequences of forfeiture by “disguis[ing]” its challenge as
procedural and jurisdictional objections. Doraleh Container,
656 F. Supp. 3d at 233. The majority offers no logical reason
why this court should condone Djibouti’s patent “disguise.”
III.
Despite the district court’s careful analysis, the majority
concludes that “the district court should have determined
Quinn Emanuel’s authority to represent [DCT].” Maj. Op. at
9. My colleagues depart from the Supreme Court’s guidance
for arbitration by creating a procedural means for Djibouti to
continue to delay and frustrate the enforcement of valid arbitral
awards. Such a result is novel, unsupported by precedent, and
contrary to long-established principles and the purposes
underlying international arbitration.
A.
District courts possess the “power, at any stage of the case,
to require an attorney, one of its officers, to show his authority
to appear.” Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 319
(1927). But this inherent authority of the district court is

-- 28 of 34 --

12
distinct from a jurisdictional duty to “always grant[]” a party
motion for an elaborate inquiry into attorney authority. Maj.
Op. at 7 (quotations and citations omitted). Precedent relied on
by the majority from the Supreme Court and this court
emphasizes that the “power to inquire” into attorney
authorization, including “the time and manner of calling for the
authority, and . . . the remedy” is left to the “discretion of the
court and ought to be adapted to the case.” Pueblo of Santa
Rosa, 273 U.S. at 319 (quoting King of Spain v. Oliver, 14 F.
Cas. 577, 578 (C.C.D. Pa. 1810) (emphasis added)). So too in
Booth v. Fletcher, 101 F.2d 676, 683 (D.C. Cir. 1938), and
McLean v. Burkinshaw, 107 F.2d 665, 665 (D.C. Cir. 1939),
this court recognized that power is not to be exercised in an
“arbitrary” manner but allows for “discretion” to adapt an
analysis of an attorney’s authority to the context of a particular
case. That is what the district court did here and the majority
fails to do, ignoring Djibouti’s action or lack thereof during the
arbitration proceedings.
The majority states as a principle of settled law that
“[w]hen a party requests the court inquire into the lawyer’s
authority and presents evidence showing ‘sufficient ground to
question the authority,’ the request is ‘always granted.’” Maj.
Op. at 7 (quoting W.A. Gage & Co. v. Bell, 124 F. 371, 380
(W.D. Tenn. 1903)). It relies primarily on two state court cases
from 1838 and 1840, neither of which supports such a rigid
rule. McKiernan v. Patrick, 5 Miss. (4 Howard) 333, 335
(1840), states that an inquiry into attorney authorization may
be granted if the court believes it “necessary for the ends of
justice.” Tally v. Reynolds, 1 Ark. 99, 104 (1838), states that if
a party moving to challenge the authority of opposing counsel
has alleged facts “sufficient to raise a reasonable presumption
that the attorney is acting in the case without authority,” the
court may require the attorney representing his adversary to
show his authority. In that case, the attorney was unauthorized

-- 29 of 34 --

13
because he had provided “no . . . evidence whatsoever” of any
client authorization for the representation. Id. at 106. Like
Pueblo of Santa Rosa, these state court cases emphasize a
court’s discretion to evaluate context and equitable
considerations, see McKiernan, 5 Miss. at 335, and when
considering party motions to conclude if the challenged
attorney can offer no evidence of authorization to act that the
representation was unauthorized, Tally, 1 Ark. at 104, 106.
Perhaps most disturbing is the majority’s conclusion that it
is irrelevant that Djibouti failed to challenge Quinn Emanuel’s
authority over DCT during arbitration. The majority states that
“[c]hallenges to a lawyer’s authority . . . are not subject to the
standard forfeiture rules” and can be raised for the first time on
appeal. Maj. Op. at 9, 11. For support the majority looks to
the statement in Pueblo of Santa Rosa that a court has the
“power to inquire” into attorney authorization “at any stage of
the case.” 273 U.S. at 319. But whether a court may exercise
inherent authority to address an issue is different from whether
a party seeking to raise the issue can forfeit it. Pueblo of Santa
Rosa addresses judicial power to inquire into attorney
authorization, not when a party may raise an objection to
attorney authority or, more relevantly, whether a party can
forfeit that issue. The Supreme Court’s relevant guidance —
to consider “the time and manner” of raising a question of
attorney authority “ought to be adapted to the case,” id.
(citation omitted) — is ignored by the majority.
Troubling too, the majority views the district court as
declining to determine whether DCT authorized Quinn
Emanuel to file the petition for enforcement. See Maj. Op. at
9, 14. The district court neither refused to inquire into Quinn
Emanuel’s authority nor treated the law firm as authorized in
the absence of any supporting evidence. The district court
noted that Quinn Emanuel had represented DCT from the

-- 30 of 34 --

14
outset of the arbitration. Quinn Emanuel’s emails to the arbitral
panel setting forth the authorizations to act on behalf of DCT
were before the district court. The district court confirmed
Djibouti had an opportunity to challenge Quinn Emanuel’s
authority during arbitration, Doraleh Container, 656 F. Supp.
3d at 233, being aware that Djibouti had declined the arbitral
panel’s invitations to challenge Quinn Emanuel’s evidence by
way of its power of attorney agreements approved by DCT’s
pre-expropriation board of directors. So this is not a case where
an attorney appeared before the federal court without
presenting evidence of authorization to act. Cf. King of Spain,
14 F. Cas. at 578.
To the extent Djibouti would point to the expropriation of
DCT as undermining Quinn Emanuel’s authority, the district
court did not abuse its discretion. The arbitral panel recognized
that the question of who had authority to control DCT’s
counterclaims against Djibouti was a complex matter of foreign
corporate governance law and pointed to its authority to decide
the question. Yet although committed under Article 20 to
arbitrate such corporate governance issues, Djibouti repeatedly
declined to challenge Quinn Emanuel’s authority and
arguments despite opportunities offered by the arbitral panel.
Consistent with its statutorily limited role in arbitral
enforcement proceedings, the district court properly concluded
that it would not consider Djibouti’s “disguised” corporate
governance challenge. Again, this is the type of contextual
inquiry called for by Pueblo of Santa Rosa, 273 U.S. at 319,
and Booth, 101 F.2d at 683, and left to the district court’s
discretion in light of time and manner adapted to the context of
the case.

-- 31 of 34 --

15
B.
Furthermore, the majority overlooks longstanding
congressional instruction and precedent holding that
proceedings to confirm arbitral awards are narrow. See Part I,
supra; 9 U.S.C. § 207. The majority’s response is that the
“New York Convention does not abrogate . . . procedural
rule[s]” regarding attorney authority. Maj. Op. at 13. But the
question whether petitions to enforce arbitral awards must be
heard consistent with procedural rules like the Federal Rules of
Civil Procedure is not at issue in this case. As noted, the
Supreme Court has repeatedly emphasized that agreements to
arbitrate create a binding and exclusive forum where matters
relating to waiver, estoppel, and similar defenses are decided
by the arbitrators as a precondition of arbitration. See, e.g.,
Dean Witter, 537 U.S. at 86; BG Grp., 572 U.S. at 34–35;
Moses H. Cone Mem’l Hosp., 460 U.S. at 24–25. If it is
“procedural,” then the question whether Quinn Emanuel is
authorized to represent DCT is a precondition to arbitration.
The majority insists that even applying the forfeiture rules
that govern arbitration, no forfeiture occurred here. Maj. Op.
at 11. According to the majority, “Djibouti could not have
challenged Quinn Emanuel’s authority as a defense during
arbitration” because Administrator “Tadoral did not purport to
terminate Quinn Emanuel’s authority to represent [DCT] until
after the firm’s work on the merits of the arbitration was
complete.” Id. This summary does not conform with the
record. As the arbitral panel recognized in 2019, Djibouti was
facing substantial financial liability under DCT’s
counterclaims and exercised apparent control over
Administrator Tadoral with respect to seeking a stay of the
arbitration and advising the arbitral panel she controlled DCT.
See Cabinet Ghaleb Email to Admr. Tadoral (Nov. 14, 2018).

-- 32 of 34 --

16
Still Djibouti failed before the arbitral panel to challenge Quinn
Emanuel’s showing of authority.
Notably, Djibouti does not distinguish between
Administrator Tadoral’s authority during the arbitration
proceedings and that authority at enforcement before the
district court, asserting that Administrator Tadoral’s power to
revoke Quinn Emanuel’s authority to represent DCT has been
exclusive “[s]ince 2018.” Appellant’s Br. 21 (quoting Admr.
Tadoral’s Sec. Decl. at 2). In November 2018, Administrator
Tadoral informed the arbitral tribunal she had revoked Quinn
Emanuel’s authority to pursue DCT’s counterclaims in the
arbitration proceeding. So, an assertion of a subsequent
revocation of Quinn Emanuel’s authority to represent DCT
presents no distinct challenge that Djibouti could not have
raised during arbitration. To the arbitral panel the resolution of
whether Administrator Tadoral or Quinn Emanuel had
authority to control DCT seemed a precondition to arbitrating
the counterclaims. Djibouti repeatedly chose not to challenge
Quinn Emanuel’s authority before the arbitral panel.
Even viewing the authority challenge as “procedural” on
the majority’s terms offers no basis to conclude application of
the forfeiture doctrine would be barred here. See, e.g., Fox v.
District of Columbia, 83 F.3d 1491, 1496 (D.C. Cir. 1996).
Under the Federal Rules of Civil Procedure, other similar
“authority” defenses are treated as affirmative defenses that can
be waived or forfeited. See FED. R. CIV. P. 9(a)(1)–(2); 5A
Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE &
PROCEDURE § 1295 (4th ed. 2018); cf. Maj. Op. at 6 & n.3.
C.
The majority’s approach undermines the finality and
purposes of international arbitration. See, e.g., Nat’l Wrecking,

-- 33 of 34 --

17
990 F.2d at 960–61. Djibouti agreed to arbitrate as part of
soliciting foreign investment and availed itself of the arbitral
forum to pursue its claims and forfeited the related issue of who
has authority over the foreign investors of DCT. See Mitsubishi
Motors, 473 U.S. at 628, and Part I, supra. The majority, by
excepting Djibouti’s authority challenge from the principle that
matters committed to arbitration must be decided by the
arbitrators, affords Djibouti another way to delay enforcement
of DCT’s awards. Viewed globally, the majority’s approach
disrupts the balance underpinning international arbitration and
economic development. Other arbitral defendants may mimic
the use of “disguise[s]” to avoid forfeiture, and investors, in
turn, will realize the protection and efficiency of arbitration are
at risk. Treaty, statutory, and Supreme Court authority
emphasize the importance of finality and enforceability of
arbitral awards. The majority ignores that imperative.
To the extent the majority concludes our disagreement is
“rather narrow,” Maj. Op. at 12 n.8, the potential effect of its
approach is not. Challenges to an attorney’s authority may be
made at any time. But if, as here, that challenge was forfeited
during arbitration, there is no basis to inquire further. See id.
at 7 n.4. This is not a case where a party to arbitration lacked
notice or opportunity to challenge attorney authority during
arbitration, nor where the district court ignored the question of
attorney authority. To be clear: It is not the context of
international arbitration that precludes the district court from
dismissing a petition to enforce an arbitral award for lack of
attorney authority to represent the petitioner but the majority’s
novel approach, which ignores Djibouti’s forfeiture under an
agreement to arbitrate and overlooks the potential negative
consequences for international arbitration that other circuits
have recognized.
Accordingly, I respectfully dissent.

-- 34 of 34 --