Air Canada (AC, Montréal Trudeau) has filed a lawsuit in a United States court against the Bolivarian Republic of Venezuela to enforce a USD20.8 million arbitral award granted to the airline in 2021 by the International Centre for the Settlement of Investment Disputes (ICSID) over ticket sales earnings the state failed to convert from bolivars to US dollars for repatriation.
The airline has applied for an order from the US District Court of Columbia that the award of USD20,790,574 be enforced. It was granted by the ICSID, a World Bank institution, on September 13, 2021, and corrected on October 27, 2021. In addition, interest was awarded to Air Canada for the cost of debt calculated from May 26, 2014, until the date of entry of judgment (an amount to be determined), plus more than USD4.8 million in legal costs incurred by the airline.
Venezuela has 60 days to respond from the date of summons or face judgment by default. The ICSID found that Venezuela had breached the free transfer of fund protection under the Canada-Venezuela Bilateral Investment Treaty (BIT) when it failed to process the airline's requests.
The background to the case is as follows: Starting July 2004, when Air Canada began operating the route between Toronto Pearson and Caracas Simón Bolivar, it regularly filed applications through Mercantil Banco with Venezuela's currency exchange commission (Comisión de Administración de Divisas - CADIVI). These applications were for exchanging bolivar proceeds from ticket sales in Venezuela for US dollars and repatriating them. By November 2012, Air Canada had submitted 91 currency acquisition requests (Autorización de Adquisición de Divisas - AADs) totalling USD91 million, which the CADIVI approved. From September 2013 until January 2014, Air Canada submitted 15 additional AAD requests corresponding to ticket sales from October 2012 to December 2013, totalling USD50 million.
On January 22, 2014, CADIVI issued an administrative order by which Venezuela henceforth processed foreign airlines' AADs at a different exchange rate of VEF11 bolivars for one US dollar.
On March 17, 2014, Air Canada suspended its flights to Caracas until further notice, citing civil unrest in that country and problems conducting business in Venezuela, including the repatriation of its funds. In late March, Venezuela announced it would allow airlines to repatriate their revenues but this did not materialise. The airline formally registered a dispute with Venezuela in June 2016, which went to arbitration proceedings before the ICSID in Paris in December 2016.
In September 2021, the ICSID tribunal ruled in favour of Air Canada. Venezuela took the matter on appeal. It asserted its sovereign right to regulate foreign exchange and currency repatriation. It also highlighted the country's broader economic crisis, including hyperinflation and a lack of sufficient US dollar reserves, which impacted its ability to honour foreign currency requests. Still, in September 2023, the Paris Court of Appeal upheld the ICSID's decision.
