Venezuela Us Srl v. Bolivarian Republic of Venezuela

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2026 Decided June 12, 2026
No. 25-7096
VENEZUELA US SRL,
APPELLEE
v.
BOLIVARIAN REPUBLIC OF VENEZUELA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03822)
Juan O. Perla argued the cause for appellant. With him on
the briefs were David V. Holmes and Joseph D. Pizzurro.
John M. Conlon argued the cause for appellee. With him on
the brief were Kevin B. Weehunt, Jr. and Michael P. Lennon, Jr.
Before: RAO and WALKER, Circuit Judges, and RANDOLPH,
Senior Circuit Judge.
Opinion for the court filed by Senior Circuit Judge
RANDOLPH.
Dissenting opinion filed by Circuit Judge WALKER.

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RANDOLPH, Senior Circuit Judge:
Venezuela US, S.R.L. (“VUS”), a Caribbean company
based in Barbados, obtained an award of damages against the
Bolivarian Republic of Venezuela (“Venezuela”) in an
international arbitration conducted pursuant to the Arbitration
Rules of the United Nations Commission on International
Trade Law. This is an appeal from the judgment of the district
court granting VUS’s petition for recognition and enforcement
of that award.
The United States, as a member of the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards,
agreed that our courts would recognize and enforce foreign
arbitral awards pursuant to the Convention done at New York
June 10, 1958; T.I.A.S. No. 6997 (Dec. 29, 1970). Congress
codified the New York Convention in the Federal Arbitration
Act. See 9 U.S.C. §§ 201-08. The Federal Arbitration Act
requires a domestic court to confirm a foreign 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. 9 U.S.C. § 207. One such ground is
the so-called “public policy exception” in Article V(2)(b),
which permits the competent authority of a member country
to refuse recognition when “[t]he recognition or enforcement
of the award would be contrary to the public policy of that
country.”
I.
In 2006, VUS acquired an 18 percent stake in
Petroritupano, S.A., a Venezuelan empresa mixta, or “mixed
company” that owned the rights to oil production in a

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particular area of Venezuela. The two other shareholders were
a Venezuelan state-owned company and the subsidiary of a
Brazilian state-owned company. After profitable years of
business in 2008 and 2009, the shareholders voted to pay
themselves dividends. Although the state-owned shareholders
collected, VUS received nothing.
In 2013, VUS initiated arbitration proceedings against
Venezuela in The Hague, Netherlands. The arbitration tribunal
trifurcated the proceeding into a preliminary jurisdictional
phase, a merits phase, and a damages phase. At the time,1
Nicolás Maduro was President of Venezuela; and the Maduro
Regime was the U.S.-recognized government of the country;
and the law firm of Curtis, Mallet-Prevost, Colt & Mosele
LLP was representing Venezuela in the arbitration.
In 2016, the first phase concluded when the Tribunal
determined that Venezuela had consented to arbitrate the
dispute with VUS. In February 2018, the parties finished their
submissions for the second phase of the arbitration, and the
Tribunal began to deliberate. In May 2018, as the arbitration
proceedings dragged on, Venezuela held a presidential
election. Incumbent President Maduro claimed victory. The
National Assembly disputed his claim. Maduro refused to2
For the sake of accuracy, we note that the second phase also 1
included some leftover jurisdictional issues, irrelevant to this
appeal.
The National Assembly is the legislative branch of the 2
Venezuelan government, which consists of a single chamber of
approximately 277 popularly elected deputies. See Luis Bergolla, An
Introduction to Venezuelan Governmental Institutions and Primary
Legal Sources, NYU L. GLOBALEX, (Mar.-Apr. 2022),
https://www.nyulawglobal.org/globalex/venezuela1.html.

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4
concede. On January 23, 2019, the National Assembly
declared the election results invalid and selected an Interim
President, Juan Guaidó, then the head of the Assembly. On the
same day President Donald J. Trump officially recognized
Juan Guaidó as the “Interim President of Venezuela.” In doing
so, President Trump found the Assembly to be the only
legitimate branch of government. Even so Maduro remained
in power.
In June 2020, while awaiting the results of the
jurisdictional and merits phases of the arbitration, the Maduro-
led government replaced the Curtis firm with Guglielmino &
Associados S.A., an Argentina-based law firm. Since briefing3
had already concluded, the Guglielmino firm did not
substantively participate in this phase of the arbitration. In
February 2021, the Tribunal dismissed Venezuela’s
jurisdictional challenge and ruled that Venezuela was liable to
VUS. The Interim Government of Venzuela did not attempt to
intervene and challenge the replacement of the firm. [JA85].
The Guiglielmino firm thus proceeded to present Venezuela’s
case in the damages phase. In November 2022, after
completing the damages phase, the Tribunal awarded VUS $59
million, plus costs, attorney fees and interest.
The Curtis firm is representing the Interim Government of 3
Venezuela in this appeal. There is some dispute over the
circumstances of its replacement in the arbitration. VUS suggests
that the Curtis firm was fired. The firm asserts that it refused to
take instruction from the Maduro Regime after the U.S. President
recognized the Interim Government. JA64, JA85. Why the firm
departed has no bearing on this appeal.

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VUS filed this action in the district court seeking
recognition and enforcement of the damages award. Venezuela
objected, claiming that recognizing or enforcing the award
would violate U.S. public policy.
Venezuela’s argument in the district court, and its
argument on appeal, is that the Tribunal, in permitting the
Maduro regime to change counsel, treated Maduro as if he
were the legitimate President of Venezuela. Thus, for the
district court to recognize and enforce the damages award
would be tantamount to contradicting President Trump’s
exercise of his power to recognize a foreign government.
The district court granted VUS’s petition. The court ruled
that the Executive’s recognition power was not a cognizable
public policy under the New York Convention and that even
if it were, judicial recognition and enforcement of the award
here would not contradict it. Venezuela US SRL v. Bolivarian
Republic of Venezuela, 789 F. Supp. 3d. 1 (D.D.C. 2025).
II.
Consistent with the “emphatic federal policy in favor of
arbitral dispute resolution,” judicial review of arbitral awards
of this sort is limited. Belize Soc. Dev. Ltd. v. Gov’t of Belize,
668 F.3d 724, 727 (D.C. Cir. 2012) (citing Mitsubishi Motors
Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631
(1985)). The public policy exception in Article V(2)(b) of the
New York Convention is “construed narrowly” and applied
only when an award “tends clearly to 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, 289 (D.C. Cir. 2016)

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(cleaned up). Recognition or enforcement of the award must
be “repugnant to the fundamental notions of what is decent
and just” in the United States, c.f. Tahan v. Hodgson, 662
F.2d 862, 864 (D.C. Cir. 1981) (quoting RESTATEMENT
(SECOND) OF CONFLICT OF LAWS § 117, comment c (1971)),
and must violate this nation’s “most basic notions of morality
and justice,” TermoRio S.A. E.S.P. v. Electranta S.P., 487 F.3d
928, 938 (D.C. Cir. 2007) (cleaned up); see also BCB
Holdings Ltd. v. Gov’t of Belize, 650 F. App’x 17, 19 (D.C.
Cir. 2016).
The Constitution gives the President the exclusive power
to grant formal recognition to foreign governments. See U.S.
CONST. art. II §§ 2, 3; Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1 (2015). Formal recognition is an acknowledgment
that “a particular regime is the effective government of a
state.” Zivotofsky, 576 U.S. at 11 (cleaned up). The President’s
recognition of a particular regime is “conclusive on all
domestic courts, which are bound to accept that
determination.” Guaranty Trust Co. v. United States, 304 U.S.
126, 138 (1938).
We need not decide whether the President’s recognition
authority is a cognizable public policy under the New York
Convention or whether recognition and enforcement of an
arbitral award could ever violate that authority. Venezuela’s
appeal rests on a single proposition: that recognizing and
enforcing this arbitral award would infringe on the President’s
exclusive recognition power. Our court rejected that very
proposition in Valores Mundiales, S.L. v. Bolivarian Republic
of Venezuela, Ministerio del Poder Popular para Relaciones
Exteriores, 87 F.4th 510, 522 (D.C. Cir. 2023).

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In Valores, the Interim Government of Venezuela
unsuccessfully sought to replace counsel appointed by the
Maduro Regime in a proceeding before a different arbitration
tribunal – the International Centre for the Settlement of
Investment Disputes (“ICSID”) Arbitral Tribunal and
Annulment Committee. 87 F.4th at 513-14. When the
victorious Spanish claimants sought to have their ISCID
awards enforced in the United States, Venezuela argued that
doing so would contravene the Executive’s exclusive
recognition power by recognizing the Maduro Regime. Id. at
514.
In affirming the district court’s decision in Valores, we
rejected Venezuela’s claim that enforcing those arbitral awards
against it was “equivalent to recognition of the Maduro
[R]egime.” Id. at 521. We held that recognizing the awards
“express[ed] no opinion” on the arbitral tribunal’s decision to
allow the attorneys retained by the Maduro Regime to
continue representing Venezuela in the proceeding. Id. at 522.
We wrote that neither the treaty nor the implementing statute
“undermine[] the authority of the President of the United
States.” Id. at 521.
Venezuela insists that Valores is not controlling because
it dealt with awards enforced pursuant to a different treaty (the
ICSID Convention) and that treaty lacked a public policy
exception. This is true, as the district court acknowledged.
Venezuela US SRL, 789 F. Supp. 3d at 12. But even if the
President’s constitutional recognition power is a cognizable
public policy under the New York Convention, the Federal
Arbitration Act would still compel us to recognize the
damages award if doing so would not violate the policy. On
that front, the precedent of Valores is relevant, well-reasoned,
convincing, and binding.

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8
Recognition and enforcement of the damages award against
Venezuela does not undermine the President’s authority.
Valores, 87 F.4th at 521. The district court expressed no
opinion regarding whether the Tribunal correctly allowed the
change in counsel before the damages phase. Recognition of
the damages award is not a “formal acknowledgment” or
“express . . . declaration” that the Maduro Regime was the
“effective government” of Venezuela. Id. at 522 (quoting
Zivotofksy, 576 U.S. at 11). “[E]nforcement of the [damages
award here does not] imply a denial of the President’s
recognition of” what was then “the Guaidó government.” Id.
at 522. The district court’s decision to grant the petition for
enforcement “cannot seriously be seen as an attempt by a
court to ‘aggrandiz[e] its power at the expense of another
branch.’” Id. (quoting Zivotofsky, 576 U.S. at 31-32). And
“nothing in our enforcement of the [damages award] forces the
Executive to contradict his statements recognizing the Guaidó
regime.” Id. (citing Zivotofsky, 576 U.S. at 30). In fact, unlike
in Valores, the Interim Government in this arbitration made no
attempt to replace the Maduro regime’s chosen counsel with
its own. The Tribunal here never had to choose one purported
government over another. Thus, in this case the connection
between recognizing the damages award and contradicting the
President’s recognition power is more tenuous here than in
Valores.
All that we decide is that the district court correctly
determined that no exception in the New York Convention
permitted it to refuse to recognize and enforce this damages
award.
* * *
This is our response to the dissent.

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In the district court and in our court Venezuela invoked
one, and only one, New York Convention “public policy”
objection to enforcement of the arbitration award. Venezuela’s
objection, which we reject for reasons already given, was that4
enforcement would violate United States “public policy”
concerning the President’s constitutional authority to recognize
foreign governments.
The dissenting opinion goes off on a tangent of its own
devising. It contends that we must decide an entirely different
“public policy” question, a question neither Venezuela nor
VUS ever raised or argued or subjected to evidentiary
development in pleadings or proceedings in the district court
or on appeal in our court.
The question the dissent chooses to answer is whether a
United States “public policy” bears on a foreign nation’s
representation in an international arbitration conducted in the
Netherlands.
Counsel for Venezuela could hardly be faulted for failing
to advance such a theory in federal court. The proverbial man
on the street, if asked whether the United States had any such
“public policy,” would furrow his brow, mutter “surely not,”
From the beginning of this lawsuit Venezuela has been clear. 4
In the district court it responded this way to VUS’s petition for
recognition and enforcement: “The public policy at issue here is the
U.S. Executive’s exclusive power to recognize foreign
governments—a fundamental principle . . ..” Memorandum in
Opposition to Petition to Recognize and Enforce a Foreign Arbitral
Award at 1, Venezuela US SRL v. Bolivarian Republic of
Venezuela, No. 22-cv-3822 (D.D.C. Dec. 11, 2023), ECF 20. It
maintained this position in its oral argument in our court. See Oral
Arg. Tr. 16-17.

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and walk away—more quickly still when the interviewer
mentioned “Franz Bonaventura Adalbert Maria Herzog von
Bayern.” Dissenting Op. at 1.
The fallacies in the dissent’s analysis are more than a few.
Here are some.
1. As we have stated, the dissent’s analysis is wholly
untethered from any arguments Venezuela advanced in the
district court or on appeal. Citing Enron Nigeria, the dissent
claims in a footnote that this does not matter. Dissenting Op.
at 24 n.83. But the Enron Nigeria court held only that it
would consider Nigeria’s “public policy” defense to an
arbitration award presented for the first time on appeal. 844
F.3d at 289. That is not the situation in this case. Venezuela
has not raised the dissent’s “public policy” objections even on
appeal. See Venezuela US SRL, 789 F. Supp. 3d at 6; Técnicas
Reunidas de Talara S.A.C. v. SSK Ingeniería y Construcción
S.A.C., 40 F.4th 1339, 1346 (11th Cir. 2022) (distinguishing
Enron Nigeria and recognizing that “a party can waive a
public-policy defense by failing to raise its objection in a
timely manner”). Concerns said to be “repugnant to
fundamental notions of what is decent and just” would
ordinarily be expected to inspire prompt objection from the
allegedly injured party itself. Enron Nigeria, 844 F.3d at 289
(cleaned up). Yet the supposedly aggrieved sovereign here has
never regarded the dissent’s “considerations” as worthy of
assertion, and its counsel expressly disavowed theories the
dissent now advances. See Oral Arg. Tr. 16-17. The record
suggests these “considerations” offend the dissent far more
than they offend any notion of fairness or justice to
Venezuela. See Venezuela US SRL, 789 F. Supp. 3d at 10
(“Venezuela does not even attempt to justify its position under

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that governing ‘basic notions of morality and justice’
standard.”).
2. The dissent repeatedly imports concepts applicable to
litigation in federal court and attempts to transpose them onto
international arbitration in a foreign country. That is a mistake.
International arbitration is not the equivalent of federal-court
litigation; if anything, it is more aptly compared to domestic
arbitration. See Mitsubishi Motors Corp., 473 U.S. at 631. The
litigation procedures and attendant formalities emphasized by
the dissent are therefore inapposite here, just as they would be
in the context of domestic arbitral proceedings. See Republic
of Argentina v. AWG Grp. LTD., 894 F.3d 327, 332 (D.C. Cir.
2018) (“Congress requires enforcement even when arbitration
proceedings do not provide the full process protections that
courts provide because the ‘primary purpose’ of the [FAA] is
not to turn arbitration panels into private federal courts but to
‘ensure that private agreements to arbitrate are enforced
according to their terms.’” (quoting Stolt-Nielsen S.A. v.
AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010))).
3. The New York Convention does afford certain
protections relating to three of the considerations the dissent
identifies—“the right to be heard,” “the right to adequate
representation,” and “the right to counsel.” See Dissenting Op.
at 9, 11, 14. But those protections arise under Article V(1)(b),
not the public policy exception of Article V(2)(b) that defines
this dispute and anchors the dissent. See New York
Convention art. V(1)(b) (providing a defense where a party
“was not given proper notice of the appointment of the
arbitrator or of the arbitration proceedings or was otherwise

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unable to present his case”). Venezuela itself recognized that5
distinction. At oral argument, its counsel expressly disclaimed
any reliance on inadequate representation, acknowledging that
such a claim would arise under a different Convention
exception and that Venezuela was proceeding solely under the
public policy exception concerning the President’s recognition
authority. See Oral Arg. Tr. 16-17.
4. The dissent’s two remaining considerations are “respect
for foreign sovereignty” and “the separation of powers.”
Dissenting Op. at 16, 19. The dissent, however, fails to show
that confirmation of the damages award against Venezuela
violates any “basic notions of morality and justice” embedded
in these structural concerns. TermoRio, 487 F.3d at 938
To the extent the protections afforded by the New York 5
Convention mirror our domestic due process rights, “like all other
due process rights, [these Convention rights] may be waived.”
Emps. Ins. of Wausau v. Banco De Seguros Del Estado, 199 F.3d
937, 942 (7th Cir. 1999) (citing D.H. Overmyer Co. v. Frick Co.,
405 U.S. 174, 185 (1972)). The dissent fixates on public policy
considerations it claims compel judgment for one
party—notwithstanding that those considerations are inapposite
here—while disregarding the countervailing public policy that
“[o]ur adversary system is designed around the premise that the
parties know what is best for them.” Sec’y of Lab., Mine Safety &
Health Admin. v. Westfall Aggregate & Materials, Inc., 69 F.4th
902, 911 (D.C. Cir. 2023) (alteration in original) (quoting Greenlaw
v. United States, 554 U.S. 237, 244 (2008)); see also Carducci v.
Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) (“The
premise of our adversarial system is that appellate courts do not sit
as self-directed boards of legal inquiry and research, but essentially
as arbiters of legal questions presented and argued by the parties
before them.”). It would be remarkable if due process rights may be
waived in a purely domestic suit but not in an action to enforce an
international arbitration award against a foreign nation.

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(cleaned up). Indeed, this court has previously rejected a
similar attempt to leverage these same principles as grounds
for a New York Convention public policy defense for this
very reason. BCB Holdings, 650 F. App’x at 19 (“Belize also
argues that the District Court should have refused to enforce
the arbitral award based on two other public policies: the
separation of powers and international comity. But
enforcement in this case would not violate any ‘basic notion
of morality and justice’ rooted in either of those two
doctrines.”); see also RESTATEMENT (THIRD) U.S. LAW OF
INT’L COMM. ARB. § 4.16 reporters’ note b (2019) (“To read
the public policy defense as a parochial device protective of
national political interests would seriously undermine the
Convention’s utility. This provision was not meant to enshrine
the vagaries of international politics under the rubric of public
policy.” (cleaned up)).
5. Recognizing that no individual consideration satisfies
the public policy exception, the dissent constructs its public
policy argument by stitching together five disparate
considerations. See Dissenting Op. at 9 n.32. A Second Circuit
decision is offered in support of this kitchen-sink approach,
see Corporación Mexicana de Mantenimiento Integral, S de
RL de CV v. Pemex-Exploración y Producción, 832 F.3d 92,
107 (2d Cir. 2016), but that authority cannot be squared with
the Supreme Court’s requirement “that any such public policy
must be explicit, well defined, and dominant,” E. Associated
Coal Corp. v. United Mine Workers of Am., Dist. 17, 531 U.S.
57, 62 (2000) (cleaned up).
6. The dissent devotes considerable attention to disputing
the proposition that Venezuela forfeited its public-policy
arguments by failing to present them in arbitration. See
Dissenting Op. at 24-27. That excursion, however, sidesteps

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the premise on which our reasoning actually rests: not that
Venezuela failed to raise any of the dissent’s so-called “rights”
before the tribunal, but that it never asserted them at any point
in the enforcement proceedings in the district court and in this
court on appeal.6
Affirmed.
For centuries this move has commonly been called setting up 6
a “straw man,” defined as “an imaginary adversary, or an invented
adverse argument, adduced in order to be triumphantly confuted.”
10 Oxford English Dictionary 1090 (1st ed. 1933). It is sometimes
difficult to distinguish a “straw man” from a “slippery slope” or a
“red herring” or “tilting at windmills.” The label does not matter.

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Walker, Circuit Judge, dissenting:
On the western side of Munich sits Schloss Nymphenberg,
a palace wider than Versailles. Built in 1675, it served for
centuries as the summer home for the House of Wittelsbach,
rulers of Bavaria until the end of the first World War. Now,
for ten euros, you can take a tour.
Franz Bonaventura Adalbert Maria Herzog von Bayern
lives in a side wing of the palace. He is the ninety-two-year-
old great-grandson of the last king of Bavaria, Ludwig III. A
former prisoner of the Nazis, today von Bayern is renowned as
a collector and connoisseur of modern art.
Von Bayern is also, in what he calls a “charming historical
curiosity,” heir to the throne of England and Scotland.1 Or at
least he would be, if William and Mary had not deposed
James II in the “Glorious Revolution” of 1688, and if the Act
of Settlement had not deposed James’s Catholic heirs in 1701.
Imagine — far-fetched though it may be this side of
Culloden — that von Bayern were to enter an appearance as the
sovereign representative of the United Kingdom in a $100-
million international arbitration. And imagine he were then to
replace the U.K.’s lawyer with one of his choosing before
losing the suit.
In that arbitration, was the U.K. heard in a meaningful
sense? Was von Bayern a proper representative of the U.K.?
Did the U.K. enjoy the right to counsel of its choosing? Would
a U.S. court’s recognition of the award evince respect for the
sovereignty of the United Kingdom? Would it respect the
President’s authority to recognize (as he of course does) that
1 Dominik Baur, “Ich bin nicht traurig, dass ich kein König bin,”
Taz (July 23, 2016), https://perma.cc/4NQP-APDN (translation from
German original).

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2
the House of Windsor is the U.K.’s sovereign government, not
the House of Wittelsbach? If the answer is “no, no, a thousand
times no,” would recognition and enforcement of the arbitral
award accord with our nation’s basic notions of justice?2
Swap Venezuela for the United Kingdom, the National
Assembly for the House of Windsor, and Nicolás Maduro for
Franz von Bayern, and you get something pretty close to the
international arbitration at issue today. Venezuela was
represented in that arbitration by a man, Nicolás Maduro,
whom the United States did not recognize as the president of
Venezuela when the arbitral tribunal ordered Venezuela to pay
an opposing party $100 million. And then the district court for
the District of Columbia recognized that award under the New
York Convention.
That was error. Under the New York Convention, and in
accordance with hundreds of years of international judgment-
recognition practice, U.S. courts need not recognize and
enforce a foreign arbitral award when doing so would offend
our nation’s “public policy.”3
2 Learning Resources, Inc. v. Trump, 146 S. Ct. 628, 646 n.6 (2026);
see also William Baude & Dan Epps, Betty Boop or Shakespeare,
Divided Argument 34:25–38:57 (Feb. 21, 2026) (delving into the
origins of this phrase); William Baude & Dan Epps, A Subversive
Mission, Divided Argument 4:56–8:19 (Mar. 11, 2026) (same).
3 United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards art. V(2)(b), June 10, 1958, 21 U.S.T. 2517;
see also Fauntleroy v. Lum, 210 U.S. 230, 240–42 (1908) (White, J.,
dissenting) (explaining that the rule that domestic courts need not
recognize and enforce judgments contrary to their public policy has
been recognized since at least “the time of the adoption of the
Constitution”).

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3
To be clear, in this context, “public policy” is not grounded
in “general considerations of supposed public interests.”4 It is
grounded in our “laws and legal precedents.”5 As courts have
explained, the public-policy exception applies when
“enforcement would violate the forum state’s most basic
notions of morality and justice,”6 or when “an arbitration award
tends clearly to 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.”7
In my view, public policy as understood in this context
requires respect for the right to be heard, the right to adequate
representation, and the right to choose one’s counsel. It also
requires respect for the sovereignty of foreign nations and for
our system of separated powers, in which the responsibility for
foreign affairs lies most of all with the President and least of all
with the judiciary.
Recognition of this case’s arbitral award respects none of
those principles. It therefore fails to accord with U.S. public
policy. Because the district court held otherwise, I would
reverse.
4 W.R. Grace & Co. v. Local Union 759, International Union of
United Rubber, Cork, Linoleum and Plastic Workers of America, 461
U.S. 757, 766 (1983) (quoting Muschany v. United States, 324 U.S.
49, 66 (1945)).
5 Id.
6 TermoRio SA ESP v. Electranta SP, 487 F.3d 928, 938 (D.C. Cir.
2007).
7 Enron Nigeria Power Holding, Ltd. v. Federal Republic of Nigeria,
844 F.3d 281, 289 (D.C. Cir. 2016) (quotation omitted).

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4
I
I begin with a brief discussion of the President’s
recognition power followed by a summary of the proceedings
in this case.
A
As a matter of international law, the fundamental
sovereign entity is the state. The state is a territorial body with
“a permanent population” that “has the capacity to engage in[]
formal relations with other such entities.”8 Or as Emer de
Vattel put it around the time of the Founding, focusing more on
the people than the land, the state is a “societ[y] of men united
together” that “becom[es] a moral person . . . susceptible of
obligations and rights.”9
But states, as abstract entities, cannot act in the material
world. Instead, they must act through their representatives.10
And the sovereign representative of a “sovereign state” is its
government.11
As a matter of United States constitutional law, the
President gets to say which entities qualify as states and who
serves as those states’ representatives.12 So, for example, as a
matter of United States law, Palestine is not a state because the
8 Restatement (Third) of Foreign Relations Law § 201 (A.L.I. 1987).
9 Emer de Vattel, The Law of Nations Prelim. §§ 1–2 (1765) (trans.
1797).
10 See Holmes v. Jennison, 39 U.S. (14 Pet.) 540, 573 (1840) (opinion
of Taney, C.J., joined by three Justices).
11 Guaranty Trust Co. of New York v. United States, 304 U.S. 126,
137 (1938); see also The Sapphire, 78 U.S. 164, 168 (1871).
12 Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 11, 17 (2015).

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5
President says so.13 That is “conclusive on all domestic
courts,” even if other nations recognize a Palestinian state.14
And “when President Washington recognized the French
Revolutionary Government by receiving its ambassador,”
domestic courts could no longer consider King Louis XVI the
sovereign representative of France, even if the Habsburgs
thought otherwise.15
Recognition is not a mere formality, either. “Legal
consequences follow formal recognition.”16 Those “legal
consequences” are left to the courts to figure out.17 Thus,
courts hold that a recognized government may not be
questioned in United States courts for any “of the actions of
that government within its own territory.”18 Courts also confer
sovereign immunity upon recognized sovereigns.19 And they
13 See The White House, At UN, President Trump Champions
Sovereignty, Rejects Globalism (Sept. 23, 2025),
https://perma.cc/NY54-TUUG (noting that President Trump had
castigated certain members of the UN for “seeking to unilaterally
recognize a Palestinian state”).
14 Guaranty Trust, 304 U.S. at 138; see also Zivotofsky, 576 U.S. at
17.
15 Zivotofsky, 576 U.S. at 12.
16 Id. at 11.
17 Guaranty Trust, 304 U.S. at 138.
18 Robert J. Reinstein, Recognition: A Case Study on the Original
Understanding of Executive Power, 45 U. Rich. L. Rev. 801, 803
(2011); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 417
(1964).
19 Zivotofsky, 576 U.S. at 11.

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6
permit only a recognized government to sue on behalf of the
sovereign state in United States courts.20
Recognition does not bring about only legal consequences,
though. On the contrary, “the recognition power has been most
significant as an important weapon in the Executive’s foreign
policy arsenal.”21 For example, Theodore Roosevelt used the
recognition power to create the new state of Panama “from
within the boundaries of” Colombia.22 He then negotiated with
the newly recognized Panamanian Government — which he
had shepherded into power23 — “[t]o obtain the lease for the
Panama Canal.”24
Other examples abound. President Taft, one of this
country’s greatest expositors of executive power,25 used the
recognition power “repeatedly . . . to coerce commercial and
economic concessions from, and to justify military
interventions in, Latin American countries.”26 Similarly,
President Wilson refused “to recognize the Huerta regime in
Mexico . . . , which contributed to” Huerta’s “overthrow the
following year.”27 And in 1948, “President Truman recognized
20 Guaranty Trust, 304 U.S. at 137; Zivotofsky, 576 U.S. at 11. That
is why for many years “the Soviet Government could not maintain a
suit in” United States “courts.” Guaranty Trust, 304 U.S. at 137.
21 Reinstein, supra, at 803.
22 Id.; see also Taylor Cole, The Recognition Policy of the United
States Since 1901, at 39–41 (1928).
23 Cole, supra, at 39–41 (noting that Panama could not sustain itself
and that “[t]he United States in reality committed an act of
intervention,” including the use of military forces, “primarily for the
furtherance of its own interests”).
24 Reinstein, supra, at 803.
25 See, e.g., Myers v. United States, 272 U.S. 52 (1926).
26 Reinstein, supra, at 803.
27 Id. at 804 n.13.

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7
the State of Israel eleven minutes after its declaration of
independence, even though Israel was under a military assault
from Arab states.”28
B
This case turns on the legal consequences of President
Trump’s decision in 2019 to derecognize the Maduro regime
as the sovereign government of Venezuela.
The case began in 2013, when Venezuela US SRL
(“VUS”) — a company that ironically hales from
Barbados — commenced arbitral proceedings against
Venezuela. Because of a treaty between Barbados and
Venezuela, the arbitration proceeded before the Permanent
Court of Arbitration in The Hague. At the time the suit
commenced, Nicolás Maduro headed the then-recognized
Venezuelan government. The law firm of Curtis, Mallet-
Prevost, Colt & Mosle LLP served as Venezuela’s counsel. By
sometime around November 2017, the parties had completed
briefing on both the tribunal’s jurisdiction and the merits of
VUS’s claim.
As the tribunal deliberated, turmoil ensued in Caracas. In
May 2018, Maduro claimed victory in a fraudulent election. In
January 2019, the Venezuelan National Assembly responded
by declaring Juan Guaidó the Interim President of Venezuela.
That same day, President Trump derecognized Maduro’s
regime, recognizing the National Assembly and President
Guaidó instead. In addition, President Trump took steps to
safeguard Venezuelan assets in the United States for the sake
of Guaidó and the National Assembly.29
28 Id. at 804.
29 See U.S. Embassy & Consulates in Mexico, President Donald J.
Trump Supports the Venezuelan People’s Efforts to Restore

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8
But the tribunal’s band played on, unaffected by the
cataclysmic world events transpiring across the Atlantic.
Eventually, more than two years later, in February 2021, the
tribunal issued its decision on jurisdiction and the merits. It
found Venezuela liable for failing to pay VUS certain
dividends. And lo and behold, in issuing that decision, the
tribunal revealed that the derecognized, illegitimate Maduro
regime had purported to replace Venezuela’s counsel as of June
30, 2020. Yet “[n]either the U.S.-recognized government nor
Curtis received notice of this purported replacement.”30
After that, the arbitration proceeded to the final phase:
damages. The tribunal conducted a new round of briefing and
held a hearing. VUS participated, along with its counsel. So
did the Maduro regime, along with its counsel, the Guglielmino
& Associados SA law firm of Argentina. Venezuela, the
National Assembly, and their counsel did not. Still, on
November 4, 2022, the tribunal issued an award of more than
$100 million against Venezuela.
VUS took that $100-million award to the United States
District Court for the District of Columbia, requesting
recognition under the New York Convention. The district court
obliged, holding that recognition and enforcement of the award
would not violate U.S. public policy.
II
That was wrong. As courts have explained, the New York
Convention’s public-policy exception applies when
“enforcement would violate the forum state’s most basic
Democracy (Jan. 30, 2019), https://mx.usembassy.gov/president-
donald-j-trump-supports-the-venezuelan-peoples-efforts-to-restore-
democracy/.
30 Appellant Br. 14.

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9
notions of morality and justice.”31 The “high hurdle” of that
“exception is surmounted here by [five] powerful
considerations.”32 All five flow from appreciation of the
President’s exclusive recognition power.
A
First, the right to be heard. One of the foundational
principles in Anglo-American jurisprudence — if not all
jurisprudence — is audi alteram partem, or “hear the other
side.” As Justice Field explained in Windsor v. McVeigh, the
audi alteram partem principle “lies at the foundation of all
well-ordered systems of jurisprudence.”33 Lord Fortescue
traced the audi alteram partem principle back to what some
consider the very beginning: “[E]ven God himself,” Fortescue
observed, “did not pass sentence upon Adam, before he was
called upon to make his defence. . . . And the same” right
“was” given “to Eve also.”34
As should be unsurprising when it comes to such a hoary
principle, the audi alteram partem principle has long been
considered fundamental. Indeed, the Supreme Court has called
it “[t]he fundamental requisite of due process of law.”35 That
31 TermoRio, 487 F.3d at 938.
32 Corporación Mexicana de Mantenimiento Integral, S de RL de CV
v. Pemex-Exploración y Producción, 832 F.3d 92, 107 (2d Cir. 2016)
(holding the public-policy exception satisfied on the basis of only
“four powerful considerations”).
In today’s case, the public-policy exception is satisfied by the five
considerations in conjunction, not necessarily any one in isolation.
33 93 U.S. 274, 277 (1876).
34 Dr. Bentley’s Case, 93 Eng. Rep. 698, 704 (K.B. 1723); see also
Genesis 3:9–13.
35 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)); see
also Richards v. Jefferson County, Alabama, 517 U.S. 793, 797 n.4

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10
accords with pre-Founding English understandings, where the
principle was considered one of two basic principles of natural
justice.36 The principle shows up in criminal suits as the right
not to be tried in absentia, and in civil suits, as the right to a
hearing.
Recognizing this award fails to respect this venerable
principle. At the damages phase of the arbitration — where
attorneys for the former president of Venezuela filed briefs and
made arguments after ousting attorneys for the actual president
(1996) (“The opportunity to be heard is an essential requisite of due
process of law in judicial proceedings.”); in re Oliver, 333 U.S. 257,
273 (1948) (“A person’s right to . . . an opportunity to be heard in his
defense” is “basic in our system of jurisprudence . . . .”); Caritativo
v. California, 357 U.S. 549, 558 (1958) (Frankfurter, J., dissenting)
(“Audi alteram partem — hear the other side! — a demand made
insistently through the centuries, is now a command, spoken with the
voice of the Due Process Clause . . . .”); American Security Council
Education Foundation v. FCC, 607 F.2d 438, 474 (D.C. Cir. 1979)
(en banc) (Wilkey, J., dissenting) (“The most essential part of due
process for centuries has been recognized by Anglo-American jurists
to be audi alteram partem — ‘hear the other side.’”).
36 See Frederick F. Schauer, English Natural Justice and American
Due Process: An Analytical Comparison, 18 Wm. & Mary L. Rev.
47, 48 (1976) (calling the audi alteram partem principle one of “two
fundamental principles” of natural justice in English jurisprudence
alongside the nemo judex principle); see also id. at 48 & n.10 (the
nemo judex principle derives from the Latin maxim “nemo debet esse
judex in propria sua causa,” which means no one should be judge in
his own cause); John M. Kelly, Note, Audi Alteram Partem, Nat. L.
F. 103, 103 (1964) (“It is a firmly established rule of common law
that a judge or anyone exercising a judicial function must hear both
sides of every case . . . . This rule is recognized in England as one of
fundamental justice, and a failure to observe it makes the whole
proceeding defective and voidable; in the United States of America
the principle is part of the notion of ‘due process’ and is equally well
protected.” (footnote omitted)).

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11
of Venezuela — the sovereign state of Venezuela was not
heard, because the voice that spoke was not its own.37
To be sure, Venezuela did get some form of hearing at
some stage of the proceeding. Sometimes that may be enough.
But here, it is not. The arbitral proceeding was conducted in
separate phases. And during the critical damages phase, only
VUS was allowed to submit briefing and attend the hearing.
The audi alteram partem principle, though, is not satisfied
when only one side is heard — especially not when millions
upon millions of dollars hang in the balance.
B
Second, the right to adequate representation.38 Our law
recognizes that when the real party in interest is represented by
37 Sabbatino, 376 U.S. at 410 (“the refusal to recognize” a regime
“signifies this country’s unwillingness to acknowledge that the”
regime “in question speaks as the sovereign authority for the territory
it purports to control”).
38 This right is intertwined with the audi alteram partem principle.
Yet it is distinct at least in this case. Here, the audi alteram partem
principle focuses more on the exclusion of the defendant; the right to
adequate representation focuses on the inclusion of a “stranger” or
other inadequate representative. Rosenberg v. United States, 346
U.S. 273, 291 (1953) (opinion of Jackson, J., joined by five other
Justices) (discussing the impropriety of a “stranger” intervening to
represent the defendants even though “[h]is intervention was
unauthorized by them”); see also Whitmore v. Arkansas, 495 U.S.
149, 164 (1990) (courts should not recognize representative suits “by
intruders or uninvited meddlers”). So the problem for the audi
alteram partem principle is that Venezuela was excluded; the
problem for the adequate representation right is that the Maduro
regime was included.

-- 25 of 42 --

12
another individual — as states are in some sense represented
by their governments39 — representation must be adequate.
Courts have recognized this right in a variety of contexts.
As the Supreme Court has put it in the context of suits by “next
friends,” the representative “must be truly dedicated to the best
interests of the person on whose behalf he seeks to litigate.”40
Parental suits on behalf of children provide another example of
this principle in action, since such suits rest on the law’s
“historic[]” recognition “that natural bonds of affection lead
parents to act in the best interests of their children.”41 So too
with class actions. The requirement that class representatives
“in fact adequately represent[]” the interests of the class
members derives from the Due Process Clause42 and is
reflected in the Federal Rules.43
Allowing recognition and enforcement of this arbitral
award contravenes that principle of justice deeply rooted in
United States law. As the Supreme Court has explained, “the
refusal to recognize” a regime “signifies this country’s
unwillingness to acknowledge that the” regime “in question
speaks as the sovereign authority for the territory it purports to
39 The Sapphire, 78 U.S. at 168; cf. Al-Aulaqi v. Obama, 727
F.Supp.2d 1, 16 (D.C. Cir. 2010) (noting that another type of
representative suit, a suit by a next friend, does not involve the
representative “himself becom[ing] a party to the . . . action in which
he participates,” but rather the representative “simply pursues the
cause on behalf of the . . . real party in interest” (quoting Whitmore,
495 U.S. at 163).
40 Whitmore, 495 U.S. at 163.
41 Parham v. JR, 442 U.S. 584, 602 (1979); see also Mirabelli v.
Bonta, 146 S. Ct. 797, 802 (2026) (per curiam) (“the primary
protectors of children’s best interests” are “their parents”).
42 Hansberry v. Lee, 311 U.S. 32, 42–43 (1940).
43 See Fed. R. Civ. P. 23(a)(4).

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13
control.”44 That means that our own country refuses to
acknowledge that the Maduro regime “speaks as the sovereign
authority for” Venezuela. That, in turn, means that in the
arbitral proceeding, an utter “stranger” assumed authority to
speak for Venezuela.45 That contravenes the bedrock principle
of adequate representation.
That’s not the half of it, either. The Maduro regime was
worse than a stranger; it was an enemy. To quote President
Trump, the Maduro regime has “rob[bed] the Venezuelan
people of their resources” and engaged in “ongoing human
rights abuses.”46 The regime’s “military and intelligence
sector . . . has committed horrible abuses against the
Venezuelan people.”47 To sum up (again quoting the
President), “[t]he Maduro regime does not care about the
welfare of [its] own people.”48 These determinations by the
Chief Executive demand deference.49 And they reinforce the
44 Sabbatino, 376 U.S. at 410.
45 Rosenberg, 346 U.S. at 291.
46 Trump White House Archives, President Donald J. Trump is
Cutting Off the Financial Resources of Maduro and His Cronies,
(Aug. 6, 2019), https://perma.cc/RNY8-A5NG.
47 Cutting Off Financial Resources, supra; see also Trump White
House Archives, Remarks by President Trump in a Multilateral
Meeting on the Bolivarian Republic of Venezuela (Sept. 25, 2019),
https://perma.cc/H932-7XWU (“Maduro has sold out his nation”);
Proclamation No. 10903, Invocation of the Alien Enemies Act
Regarding the Invasion of the United States by Tren De Aragua, 90
Fed. Reg. 13033, 13033 (Mar. 14, 2025) (noting the Maduro regime
controls military forces).
48 Multilateral Meeting, supra.
49 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320
(1936) (explaining that deference is owed to the Executive regarding
“the conditions which prevail in foreign countries”).

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14
conclusion that the Maduro regime could not possibly have had
the “best interests of” Venezuela at heart.50
C
Third, the right to counsel.51 Not only has this principle of
public policy been recognized in numerous precedents; it is
50 Whitmore, 495 U.S. at 163.
To be clear, for at least two reasons, my analysis does not suggest
that any federal court could hold that a recognized government
infringes this principle. First, no federal judge may “set himself up
for a judge of [the] conduct” of a foreign sovereign. Franchise Tax
Board of California v. Hyatt, 587 U.S. 230, 239 (2019); see also
Sabbatino, 376 U.S. at 423, 425 (explaining that “the Judicial
Branch” should not “pass[] on the validity of foreign acts of state”
and that that rule is grounded in “the competence and function of the
Judiciary and the National Executive in ordering our relationships
with other members of the international community”). Second,
courts must avoid as much as possible “judicial criticism of nations,”
even those “established on a more authoritarian basis than our own.”
Zschernig v. Miller, 389 U.S. 429, 440 (1968); cf. Oetjen v. Central
Leather Co., 246 U.S. 297, 304 (1918) (“To permit the validity of
the acts of one sovereign state to be reexamined and perhaps
condemned by the courts of another would very certainly imperil the
amicable relations between governments and vex the peace of
nations.” (quotation omitted)).
51 As were the first consideration (the right to be heard) and the
second consideration (the right to adequate representation), the
second and third (the right to choose counsel) are somewhat
intertwined in this case. But they are not one and the same. If the
National Assembly had served as Venezuela’s representative, but the
arbitral tribunal had forced Venezuela, unlike VUS, to proceed pro
se or had assigned Venezuela counsel of the tribunal’s own choosing,
Venezuela would not have enjoyed the right to counsel, even though
it would have had its proper representative appearing on its behalf.
So here the second consideration is that the Maduro regime
improperly represented Venezuela, and the third consideration is that

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15
also reflected in various constitutional provisions, as well as in
“numerous federal statutes.”52 Here is a sampling:
• U.S. Const. amend. VI: “In all criminal
prosecutions, the accused shall enjoy the right . . .
to have the Assistance of Counsel for his defence.”
• Powell v. Alabama: “It is hardly necessary to say
that the right to counsel being conceded, a
defendant should be afforded a fair opportunity to
secure counsel of his own choice.”53
• Gideon v. Wainwright: The right to counsel in
criminal proceedings is a “fundamental
safeguard[] of liberty immune from federal
abridgment . . . by the Due Process Clause of the
Fourteenth Amendment.”54
• Goldberg v. Kelly: “The right to be heard” implicit
in the Due Process Clause “would be, in many
cases, of little avail if it did not comprehend the
right to be heard by counsel.”55
• 28 U.S.C. § 1654: “In all courts of the United
States the parties may plead and conduct their own
cases personally or by counsel . . . .”
• 5 U.S.C. § 555(b): “A person compelled to appear
in person before an agency . . . is entitled to be
the Maduro regime foisted its own counsel upon the nation of
Venezuela.
52 Enron Nigeria, 844 F.3d at 287 (recognizing a “well-defined
public policy” on a similar basis).
53 287 U.S. 45, 53 (1932).
54 372 U.S. 335, 341 (1963).
55 397 U.S. 254, 270 (1970).

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16
accompanied, represented, and advised by
counsel . . . .”
• 8 U.S.C. § 1362: “Right to counsel — In any
removal proceedings before an immigration
judge . . . , the person concerned shall have the
privilege of being represented . . . by such
counsel . . . as he shall choose.”
Here Venezuela was not only denied the right to counsel
of its choosing; it had counsel forced upon it. Because the
Maduro regime had no claim to represent Venezuela, it forced
counsel upon Venezuela when it replaced Venezuela’s lawyers
in the proceeding. That is inconsistent with long-standing
public policy recognizing that a litigant should be able to
choose his counsel.
D
Fourth, respect for foreign sovereignty. The district court
itself suggested that “respecting the sovereignty . . . of foreign
states” is a compelling public policy.56 But it failed to see how
it would disrespect the sovereignty of both Venezuela and the
National Assembly to recognize and enforce this award.
1
The dignity of the sovereign requires granting him the
privilege of representation by his true representative, rather
than some imposter. I take that to be intuitive. Who would
argue that it would have evinced respect for the sovereignty of
the United States if some tribunal in 1795 had dragged our
sovereign nation before it and forced our people to be
represented by King George III?
56 Venezuela US SRL v. Bolivarian Republic of Venezuela, 789
F.Supp.3d 1, 11 (D.D.C. 2025).

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17
To put doctrinal flesh on those intuitive bones, consider
Chief Justice Marshall’s logic 200 years ago in The Schooner
Exchange v. M‘Faddon.57 As Chief Justice Marshall
explained, “[o]ne sovereign” is “in no respect amenable to
another,” and he “can be supposed” to submit himself to
foreign jurisdiction only “in the confidence that the immunities
belonging to his independent sovereign station, though not
expressly stipulated, are reserved by implication, and will be
extended to him.”58
So even if the state of Venezuela agreed to submit itself to
arbitration, one cannot think Venezuela “intend[ed] to subject
[it]self to a jurisdiction incompatible with [its] dignity.”59 And
it would seem incompatible with that dignity to have an
illegitimate regime, rather than its rightful government,
represent it before a foreign tribunal.
2
Recognizing and enforcing the award would also fail to
respect the sovereign representative of Venezuela, the National
Assembly.
According respect to the representatives of a sovereign
nation is one of our most time-honored legal traditions. After
all, it was not for nothing that the Founders decided to confer
original jurisdiction upon the Supreme Court over “all Cases
affecting Ambassadors” and “other public Ministers and
Consuls.”60 It was because, as Hamilton explained, public
ministers were “the immediate representatives of their
sovereigns,” so “out of respect to the sovereignties they
57 11 U.S. (7 Cranch) 116 (1812).
58 Id. at 137.
59 Id.
60 U.S. Const. art. III, § 2, cl. 2.

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18
represent,” it was “both expedient and proper” that their cases
“should be submitted in the first instance to the highest
judicatory of the nation.”61
The First Judiciary Act followed suit in recognizing the
dignity of the representatives of foreign sovereigns. Section 13
of that act conferred upon the Supreme Court “original, but not
exclusive[,] jurisdiction of all suits brought by ambassadors, or
other public ministers, or in which a consul, or vice consul,”
should “be a party.”62 That not only gave foreign ministers the
right to go straight to the Supreme Court, but also the privilege
to choose another court should they prefer. And that same
section provided the Supreme Court “exclusive[] . . .
jurisdiction of suits or proceedings against ambassadors, or
other public ministers,” or even “their domestics, or domestic
servants.”63
61 The Federalist No. 81, at 487 (Clinton Rossiter ed., 1961).
62 Judiciary Act of 1789, § 13, 1 Stat. 73, 80–81.
63 Id. § 13, 1 Stat. 80.
That latter part responded to the Van Berckel controversy, which
arose after a New York constable entered the home of Pieter Johan
van Berckel, the Dutch Minister Plenipotentiary to the United States,
“to arrest a member of his household.” Anthony J. Bellia & Bradford
R. Clark, Two Myths About the Alien Tort Statute, 89 Notre Dame L.
Rev. 1609, 1616 (2014).
Moreover, the United States’s “first armed conflict” was provoked
when France “treat[ed]” the representatives from the new American
Government as a bunch of nobodies, thereby “abus[ing] and
insult[ing] their government.” Stanley Elkins & Eric McKitrick, The
Age of Federalism: The Early American Republic, 1788–1800, at
574 (1993); Alexander DeConde, The Quasi-War: The Politics and
Diplomacy of the Undeclared War with France 1797–1801, at vii
(1966) (calling the Quasi-War our nation’s “first armed conflict”).
see also WMM v. Trump, 154 F.4th 207, 242–43 (5th Cir. 2025)
(Oldham, J., dissenting) (providing an “abbreviated account of the
XYZ Affair”); see also id. at 244 (“The news of the mistreatment of

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19
The disfavored treatment the arbitral body accorded the
National Assembly flouts this long-standing U.S. public policy
of according respect to the representatives of foreign
sovereigns. In the proceeding, the Maduro regime, not the
National Assembly, was accorded the honor of representing the
sovereign state of Venezuela. So the rightful representative
was treated as an imposter, while an imposter was treated as
the rightful representative. Thus, recognizing this award would
contravene the U.S. public policy of respecting the
representatives of foreign nations.
E
Fifth, the separation of powers. When it comes to foreign
affairs and national security, “judicial intervention” is often
“itself . . . a serious violation of separation of powers.”64 That
is because foreign affairs and national security implicate a host
of issues “for which the Judiciary has neither aptitude, facilities
nor responsibility.”65
So it is here. “[T]he Judiciary has neither aptitude,
facilities nor responsibility” for deciding which government
truly speaks for the people of Venezuela.66 The question is
“delicate, complex, and involve[s] large elements of
prophecy.”67
the American envoys lit the country on fire. . . . As the American
people raged, the Nation prepared for war.”).
64 H. Jefferson Powell, The President’s Authority over Foreign
Affairs: An Executive Branch Perspective, 67 Geo. Wash. L. Rev.
527, 537 (1999).
65 Chicago & Southern Air Lines, Inc. v. Waterman SS Corp., 333
U.S. 103, 111 (1948).
66 Id.
67 Id.

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20
Across three presidencies, the Executive Branch has
exercised its exclusive recognition power to answer that
question like this: The Maduro regime is illegitimate. And the
President has not stopped there. He has used his recognition
determination as a tool for regime change.
Current events prove as much. No longer is Nicolás
Maduro a run-of-the-mill illegitimate leader purporting to
exercise authority on behalf of a sovereign state — although he
was at least that during a substantial portion of the arbitral
proceeding. He is now a federal detainee after a complex
operation involving both law enforcement and military forces
in Venezuelan territory.68
Maduro’s arrest reinforces this issue’s sensitivity. Of
course, what precisely the Executive Branch is intending to do
in Venezuela, and the consequences of our recognizing a nine-
figure award against the sovereign nation of Venezuela at this
time, may not be perfectly clear to the judicial eye. But that is
the point: Running into such an uncertain and sensitive area of
foreign affairs and national security raises weighty separation-
of-powers concerns. That provides one more reason why
recognizing this award contravenes U.S. public policy.
68 For an analysis of the legal issues involved, see Office of Legal
Counsel, Proposed War Department Operation to Support Law
Enforcement Efforts in Venezuela (Dec. 23, 2025).

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21
III
A
1
VUS argues that Valores Mundiales, SL v. Bolivarian
Republic of Venezuela, Ministerio del Poder Popular para
Relaciones Exteriores controls this case.69 It does not.
In Valores Mundiales, two Spanish companies
commenced a proceeding against Venezuela before an arbitral
tribunal convened under the International Centre for Settlement
of Investment Disputes Convention.70 The tribunal “ruled in
favor” of the companies and issued a $430-million award.71
“Venezuela then sought to annul the . . . award” before an
annulment committee.72 After the parties submitted briefs in
the annulment proceeding, President Trump derecognized the
Maduro regime, recognizing the National Assembly and
Guaidó in its stead.73 The National Assembly then
“requested . . . to replace the lawyers” for the Maduro regime.74
The annulment committee denied the request.75 It then also
denied “Venezuela’s request to annul the” $430-million
“award,” instead granting an award of attorneys’ fees for the
costs incurred during the annulment proceeding.76 Our court
held both awards enforceable.
69 87 F.4th 510 (D.C. Cir. 2023).
70 Id. at 513.
71 Id.
72 Id.
73 See id.
74 Id.
75 See id.
76 Id. at 513–14.

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22
That has no bearing here. In Valores Mundiales, as noted,
the awards were rendered under the International Centre for
Settlement of Investment Disputes Convention, not the New
York Convention. That matters. Congress granted any award
rendered under the International Centre for Settlement of
Investment Disputes Convention “the same full faith and credit
as if the award were a final judgment” of a state court.77 As
such, no public-policy exception applied.78 In contrast, the
New York Convention applies here, and under the New York
Convention, U.S. courts need not recognize a foreign arbitral
award when doing so offends our nation’s public policy — i.e.,
when “enforcement would violate [this nation’s] most basic
notions of morality and justice.”79
VUS argues Valores Mundiales still controls because it at
least made clear that our recognition of a foreign arbitral award
like this one does not “contravene the President’s Recognition
authority under Article II of the Constitution.”80 That is wrong.
Even if, per Valores Mundiales, we do not usurp the
President’s exclusive recognition power simply by recognizing
arbitral awards like this one, the President’s recognition power
can and must still inform the five considerations listed above.81
77 22 U.S.C. § 1650a(a).
78 See Fauntleroy, 210 U.S. 230 (denying that states may decline
recognition and enforcement of sister-state judgments on public-
policy grounds); see also Valores Mundiales, 87 F.4th at 519
(emphasizing that the full faith and credit standard for recognition of
judgments involves “no roving ‘public policy exception’” (quoting
Baker v. General Motors Corp., 522 U.S. 222, 233 (1998)).
79 TermoRio, 487 F.3d at 938.
80 Valores Mundiales, 87 F.4th at 521.
81 See Guaranty Trust, 304 U.S. at 138 (explaining that a recognition
decision “is conclusive on all domestic courts,” but courts remain
“free to draw for themselves its legal consequences in litigations
pending before them”).

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Those five together — not the President’s recognition power in
isolation — establish that recognition of this award violates
U.S. public policy. And as to those considerations, Valores
Mundiales says nothing of import here — nary a word about
our legal system’s concerns with the right to be heard, or the
right to adequate representation, or the right to counsel,82 or
sovereign dignity, or the separation of powers concerns that
82 To be sure, in Valores Mundiales, Venezuela tried to challenge
recognition on the basis that it was denied an opportunity to be heard
during the arbitral proceedings. The court held that under the full
faith and credit standard that provided no basis for refusing to
recognize the award. See Valores Mundiales, 87 F.4th at 520. Again,
though, that bears no relevance here.
The fact that the full faith and credit standard applied in Valores
Mundiales was critical on this point, too. Under the full faith and
credit standard, as the court noted, the only plausible bases for
nonrecognition were a lack of jurisdiction or an inauthentic award,
but neither of those issues were “up for debate.” Id.
That may well have been enough. But the Valores Mundiales court
went on. Still, its follow-on discussion bears no relevance. The court
noted that “even as to questions of jurisdiction,” the full faith and
credit standard was satisfied “when the second court’s inquiry
discloses that those questions have been fully and fairly litigated and
finally decided in the court which rendered the original judgment.”
Id. (quoting Durfee v. Duke, 375 U.S. 106, 111 (1963)). That more
than disposed of the challenge in Valores Mundiales. The tribunal
had at least considered whether the National Assembly and its
lawyers should be allowed to replace the Maduro regime and its
lawyers. Thus, the Valores Mundiales court rejected what it saw as
Venezuela’s effort “to prevent enforcement by rehashing an issue
that the” tribunal had “considered and resolved,” because the fact
that that issue was already considered during the arbitral proceedings
was all that mattered for purposes of full faith and credit. Id.; see
also id. at 521. Thus, the court did not consider, nor did it have any
occasion to consider, whether Venezuela was in fact properly
represented during those proceedings.

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arise when judges meddle in matters of foreign affairs and
national security.83
So Valores Mundiales does not control this case.
2
VUS notes that when the Curtis law firm — counsel for
the legitimate Venezuelan government — learned that the
arbitral tribunal had allowed the illegitimate Maduro regime to
replace Curtis with new counsel chosen by the Maduro regime,
“neither Curtis” nor the National Assembly “made any further
attempts to participate in the arbitration.”84 But “forfeiture
cannot divest the court of its duty to resolve the public policy
question.”85 And to the extent VUS’s point is that Venezuela’s
failure to raise the argument shows that recognition of the
award does not implicate public policy, I disagree for three
reasons.
First, the sovereign government of Venezuela does not
need to bow as suppliant before an arbitral panel and beg to
receive the dignity that is any sovereign’s due — especially
83 To the extent Venezuela failed to raise in its briefing these public
policies — which are downstream of the recognition power in this
case — it does not matter. See Enron Nigeria, 844 F.3d at 288
(holding that “forfeiture cannot divest the court of its duty to resolve
the public policy question”).
84 Appellee Br. 11; see also id. at 21 n.3 (“In Valores Mundiales, but
not here, the Interim Government attempted, unsuccessfully, to
replace the Maduro Regime as the government’s representative
during the annulment proceedings.”); cf. Tr. of Oral Arg. 3–4 (Judge
Rao: “I mean, here Venezuela didn’t make any objection before the
tribunal about the question of representation.”); id. at 5–6 (Judge
Rao: “[W]hy would the arbitral tribunal feel the need to question who
was representing Venezuela if Venezuela made no challenge to
it[?]”).
85 Enron Nigeria, 844 F.3d at 288.

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when that sovereign has already been kicked to the curb once.86
Our government would — or at least should — deserve better
than that. And the sovereign government of Venezuela should
not be treated differently.87
Second, it likely would have been futile for Venezuela to
raise these arguments before the arbitral tribunal.88 Even
86 Brief for Defendant-Appellant, Valores Mundiales, 87 F.4th 510
(No. 23-7077), 2023 WL 5276637, at *13–16 (explaining an arbitral
tribunal’s previous rejection of the recognized Venezuelan
government’s attempt to represent Venezuela in another proceeding
on the grounds that Venezuela’s representative had “not proven his
legitimacy to represent Venezuela”); see also Valores Mundiales, SL
v. Bolivarian Republic of Venezuela, No. 19-cv-46-FYP-RMM, 2022
WL 17370242, at *3–4 (D.D.C. Aug. 3, 2022).
87 See Franchise Tax, 587 U.S. at 239 (emphasizing the “perfect
equality . . . of sovereigns” (quoting The Schooner Exchange, 11
U.S. (7 Cranch) at 137)); Vattel, supra, Prelim. § 18 (“[N]ations . . .
are naturally equal, and inherit from nature the same obligations and
rights. Power or weakness does not in this respect produce any
difference. . . . [A] small republic is no less a sovereign state than
the most powerful kingdom.”).
88 See supra, note 86 (discussing a previous arbitral tribunal’s
rejection of the National Assembly’s attempt to intervene in an
ongoing proceeding); see also JA 92 (decision by annulment
committee in ConocoPhillips Petrozuata BV v. Bolivarian Republic
of Venezuela explaining that because the committee “is neither a
political body nor the deliberative organ of an International
Organization,” it “cannot hear — and decide — a political question,
such as the legitimate government of Venezuela”).

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VUS’s counsel seems to recognize this.89 So I would not give
analogies to doctrines like forfeiture much weight here.90
Third, the legitimate Venezuelan government does not
have unlimited resources at its disposal. So I would not
demand that it continue intervening in every single arbitral
proceeding worldwide — despite prospects of success that are
uncertain at best — on pain that American courts will
otherwise allow the Maduro regime to continue bleeding the
resources of the Venezuelan people.91
If VUS wants to enforce its award in a place that does not
share our nation’s views about Venezuela, fine. It can try its
89 See Tr. of Oral Arg. 23 (counsel for VUS) (suggesting that “under
the rules of the arbitral regime, it was proper for” the Maduro Regime
to represent Venezuela).
90 See PruneYard Shopping Center v. Robins, 447 U.S. 74, 86 n.9
(1980) (explaining that federal claims are “adequately presented
even though not raised in lower state courts” if there was no point in
raising those claims in the lower courts); Carr v. Saul, 593 U.S. 83,
93–95, 94 n.7 (2021) (noting that there is a futility exception to issue
exhaustion and that it is futile to raise an argument the tribunal cannot
entertain); see also Hettinga v. United States, 560 F.3d 498, 503
(D.C. Cir. 2009) (non-statutory issue exhaustion not required where
the agency “lacks institutional competence to resolve the particular
type of issue presented, such as the constitutionality of a statute”); cf.
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 125 (2007)
(rejecting an argument that a party “fail[ed] to argue” a particular
claim “below” in part because “the argument would [have] be[en]
futile”); N.S. v. Dixon, 141 F.4th 279, 288 (D.C. Cir. 2025) (holding
that a “forfeiture” for failure to raise an argument during proceedings
in the district court “should be overlooked” because “[d]uring the
district court proceedings” the party’s argument “seemed to” have
been “foreclose[d]” by circuit precedent and was only later bolstered
by Supreme Court precedent).
91 Singleton, 428 U.S. at 121 (noting that one reason to forgive a
forfeiture is if “injustice might otherwise result”).

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luck in Cuba, Russia, China, Zimbabwe, or any other
jurisdiction — out of the 170 or so that have acceded to the
New York Convention — that never stopped recognizing the
Maduro regime. But it is not the fault of Venezuela’s actual
government that VUS chose to enforce its award here, in a
country that appreciates that government’s legitimacy — or at
least purports to.
B
The majority argues that several of my public-policy
concerns are really due-process concerns. I am not in complete
disagreement. There is some overlap in this context between
public policy and due process. But in this particular context,
that point is not dispositive.
The majority argues that the right to be heard, the right to
adequate representation, and the right to counsel matter only
under Article V(1)(b), which provides for non-recognition
when arbitral proceedings fail to uphold “the forum state’s
standards of due process,”92 and not under Article V(2)(b)’s
public-policy exception. But an expansive term like “public
policy” — when glossed as turning on fundamental “notions of
morality and justice”93 — encompasses at least some
fundamental procedural rights.94
That is especially so in cases involving foreign sovereigns.
After all, foreign sovereigns do not enjoy constitutional due
92 Iran Aircraft Industries v. Avco Corp., 980 F.2d 141, 145 (2d Cir.
1992).
93 TermoRio, 487 F.3d at 938.
94 Cf. Leonard V. Quigley, Accession by the United States to the
United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 70 Yale L.J. 1049, 1067 n.81 (1961) (“the
concept of due process” in Article V(1)(b) “is closely linked with the
public policy of the forum”).

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process rights.95 So when it comes to foreign sovereigns, rights
sounding in due process may implicate sovereign dignity as
much as anything.96
Thus, at least in a case like today’s, considerations like the
right to be heard, the right to adequate representation, and the
right to counsel fit not only within Article V(1)(b)’s due-
process exception, but also within Article V(2)(b)’s public-
policy exception.
The majority says that Venezuela “never asserted” those
rights “at any point in the enforcement proceedings in the
district court and in this court on appeal.”97 But “forfeiture
cannot divest the court of its duty to resolve the public policy
question.”98
IV
Under the New York Convention, U.S. courts may decline
to recognize an arbitral award if recognition would offend our
nation’s basic notions of justice. Recognition of the $100-
million award here — rendered against a sovereign nation
represented by an enemy imposter — offends those basic
notions of justice. I respectfully dissent.
95 See Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d
82, 95–100 (D.C. Cir. 2002); see also Fuld v. Palestine Liberation
Org., 606 U.S. 1, 27–30 (2025) (Thomas, J., concurring in the
judgment).
96 Cf. Price, 294 F.3d at 97–98 (suggesting sovereignty, not due
process, is the better conceptual framework for thinking about
“harm” done to a foreign sovereign in court).
97 Majority Op. at 14.
98 Enron Nigeria, 844 F.3d at 288.

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