Court of Appeals for the Second Circuit
Petersen Energ�a; Eton Park v. Argentie Argentine Republic, YPF S.A.
23-23-77370 (L); 23-7376 (L)0 citations·
Summary of the case Petersen Energ�a; Eton Park v. Argentie Argentine Republic, YPF S.A.
The United States Court of Appeals for the Second Circuit reviewed a case involving Petersen Energía and Eton Park, minority shareholders of YPF S.A., against the Argentine Republic. The district court awarded $16.1 billion in damages to the shareholders, finding that Argentina violated YPF's bylaws by expropriating shares without a tender offer. The Argentine Republic appealed, arguing errors in legal interpretation, while shareholders cross-appealed on other claims. The court affirmed in part, reversed in part, and remanded for further proceedings.
Key Issues of the case Petersen Energ�a; Eton Park v. Argentie Argentine Republic, YPF S.A.
- Violation of YPF's bylaws by not conducting a tender offer
- Interpretation of Argentine law regarding breach of contract and promissory estoppel claims
Key Facts of the case Petersen Energ�a; Eton Park v. Argentie Argentine Republic, YPF S.A.
- Argentina expropriated a majority of YPF's shares without a tender offer.
- The district court awarded $16.1 billion in damages to minority shareholders.
Decision of the case Petersen Energ�a; Eton Park v. Argentie Argentine Republic, YPF S.A.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
Opinions
23-23-77370 (L); 23-7376 (L)
Petersen Energía; Eton Park et al. v. Argentie Argentine Republic, YPF S.A.PF S.A.
23-7370 (L); 23-7376 (L)
Petersen Energía Inversora et al.; Eton Park Cap. Mgmt. et al. v. Argentine Republic, YPF S.A.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2025
(Argued: October 29, 2025 Decided: March 27, 2026)
Docket Nos. 23-7370 (L), 23-7463 (XAP), 23-7614 (XAP)
and 23-7376 (L), 23-7471 (XAP), 23-7667 (XAP)
PETERSEN ENERGIA INVERSORA S.A.U., PETERSEN ENERGIA S.A.U.,
Plaintiffs-Appellees-Cross-Appellants,
- against -
ARGENTINE REPUBLIC,
Defendant-Appellant-Cross-Appellee,
YPF S.A.,
Defendant-Conditional Cross-Appellant.
ETON PARK CAPITAL MANAGEMENT, L.P., ETON PARK MASTER FUND, LTD.,
ETON PARK FUND, L.P.,
Plaintiffs-Appellees-Cross-Appellants,
- against -
ARGENTINE REPUBLIC,
Defendant-Appellant-Cross-Appellee,
YPF S.A.,
Defendant-Conditional Cross-Appellant. ∗
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Before:
CABRANES, CHIN, and ROBINSON, Circuit Judges.
Appeal from orders and final judgment of the United States District
Court for the Southern District of New York (Preska, J.) in two consolidated
cases, culminating in a combined damages award of $16.1 billion to minority
shareholders of an Argentine oil and gas company. The district court entered
judgment for the shareholders, finding that the Argentine Republic violated
Argentine law by expropriating a majority of the company's common shares in a
∗ The Clerk of the Court is respectfully directed to amend the official captions as shown
above.
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manner that violated its bylaws, and it awarded judgment to the company with
respect to the shareholders' claims against the company. The Argentine Republic
appeals, arguing that the judgment and preceding orders rested on, inter alia,
erroneous interpretations of Argentine law. The shareholders cross-appeal,
challenging the district court's judgment for the company and its dismissal of
their promissory estoppel claims against both defendants. We hold that the
shareholders' breach of contract damages claims against the Argentine Republic
and the company are not cognizable as a matter of Argentine law, and that the
shareholders' remaining claims against the Argentine Republic and the company
are without merit.
AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings consistent with this opinion.
Judge Cabranes dissents in a separate opinion.
PAUL D. CLEMENT (C. Harker Rhodes IV, Nicholas M.
Gallagher, on the brief), Clement & Murphy,
PLLC, Alexandria, VA, and Mark C. Hansen,
Derek T. Ho, Andrew E. Goldsmith, Kellogg,
Hansen, Todd, Figel, & Frederick, PLLC,
Washington, D.C.; Randy M. Mastro, King &
Spalding LLP, New York, NY, on the brief, for
Plaintiffs-Appellees-Cross-Appellants Petersen
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Energía Inversora, S.A.U., Petersen Energía S.A.U.,
Eton Park Capital Management, L.P., Eton Park
Master Fund, Ltd., Eton Park Fund, L.P.
ROBERT J. GIUFFRA, JR. (Amanda F. Davidoff, Thomas C.
White, Morgan L. Ratner, Sergio Galvis, Adam R.
Brebner, Pedro José Izquierdo, on the brief),
Sullivan & Cromwell LLP, New York, NY, and
Washington, D.C., for Defendant-Appellant-Cross-
Appellee Argentine Republic.
MARK P. GOODMAN (Shannon Rose Selden, J. Robert
Abraham, Wendy B. Reilly, Carl Riehl, Sol
Czerwonko, on the brief), Debevoise & Plimpton
LLP, New York, NY, for Defendant-Conditional
Cross-Appellant YPF S.A.
Jeffrey R. White, American Association for Justice,
Washington, D.C.; Robert S. Peck, Center for
Constitutional Litigation, PC, Washington, D.C.,
for Amicus Curiae American Association for
Justice, in support of Plaintiffs-Appellees-Cross-
Appellants.
Steven M. Shepard, Stephanie Spies, Susman Godfrey
LLP, New York, NY, for Amici Curiae Investment
Bankers and Investment Professionals, in support
of Plaintiffs-Appellees-Cross-Appellants.
Donald Earl Childress III, Three Crowns LLP,
Washington, D.C., for Amici Curiae Professors
Ronald A. Brand and David P. Stewart, in support
of Plaintiffs-Appellees-Cross-Appellants.
Alex H. Loomis, Dennis H. Hranitzky, Quinn Emanuel
Urquhart & Sullivan, LLP, Boston, MA, and Salt
-4-
Lake City, UT, for Amici Curiae Professors William
S. Dodge and Maggie Gardner, in support of
Plaintiffs-Appellees-Cross-Appellants.
Andrew Loewenstein, Clara Brillembourg, Nicholas
Renzler, Foley Hoag LLP, Boston, MA, New York,
NY, and Washington, D.C., for Amici Curiae the
Federative Republic of Brazil and Oriental
Republic of Uruguay, in support of Defendant-
Appellant-Cross-Appellee.
Todd G. Cosenza, Willkie Farr & Gallagher LLP, New
York, NY, for Amici Curiae Law Professors, in
support of Defendant-Appellant-Cross-Appellee.
Quinn Smith, GST LLP, Miami, FL, for Amici Curiae
María Gabriela Ábalos, Enrique Bacigalupo,
Antonio Boggiano, Eduardo M.P. Bordas, et al., in
support of Defendant-Appellant-Cross-Appellee.
Eric L. Lewis, Chiara Spector-Naranjo, David Short,
Lawis Baach Kaufmann Middlemiss, Washington,
D.C., for Amici Curiae Organización Federal de
Estados Productores de Hidrocarburos
("OFEPHI"), in support of Defendant-Appellant-
Cross-Appellee.
Samuel Estreicher, NYU School of Law, New York, NY;
Adam K. Magid, J.B. Howard, Ellen V. Holloman,
Rachel A. Skene, Cadwalader, Wickersham & Taft
LLP, New York, NY, for Amici Curiae Professors of
Law and International Relations, in support of
Defendant-Appellant-Cross-Appellee.
Adam S. Lurie, Patrick C. Ashby, Emilio Minvielle,
Aviva Kushner, Linklaters LLP, New York, NY,
-5-
for Amici Curiae Public Bar Association of the City
of Buenos Aires and Argentine Legal Scholars, in
support of Defendant-Appellant-Cross-Appellee.
John Ansbro, Darrell Cafasso, Rebecca Greene, Orrick,
Herrington & Sutcliffe LLP, New York, NY, for
Amici Curiae the Republic of Chile and the
Republic of Ecuador, in support of Defendant-
Appellant-Cross-Appellee.
David A. Berger, Michael S. Vogel, Allegaert Berger &
Vogel, LLP, New York, NY, for Amici Curiae
Chamber of Companies (Cámara de Sociedades)
and Bar Association of the City of Buenos Aires
(Colegio de Abogados de la Ciudad de Buenos
Aires), in support of Defendant-Conditional Cross-
Appellant.
Jared R. Butcher, Berliner Corcoran & Rowe LLP,
Washington, D.C., for Amici Curiae Law School
Professors, in support of neither party.
CHIN, Circuit Judge:
Defendant-Appellant Argentine Republic (the "Republic") appeals
from several orders and the final judgment of the United States District Court for
the Southern District of New York (Preska, J.) in two cases resulting in the
Republic being ordered to pay a combined damages award of $16.1 billion, an
award that equals approximately 45% of the Republic's entire national fiscal
-6-
budget for 2024. Plaintiffs-Appellees Petersen Energía Inversora S.A.U. and
Petersen Energía S.A.U., two Spanish entities owned by an Argentine family
(together, "Petersen"), and Eton Park Capital Management, L.P., Eton Park
Master Fund, Ltd., and Eton Park Fund, L.P., entities of a New York hedge fund
(together, "Eton Park," and together, with Petersen, "Plaintiffs"), were minority
shareholders of Defendant-Conditional Cross-Appellant YPF S.A. ("YPF"), an
Argentine oil and gas company that had been owned by private shareholders
from 1993 until 2012, at which point the Republic nationalized YPF by
expropriating a majority of YPF's common shares. The Republic did so without
conducting a tender offer to minority shareholders, as required by YPF's
corporate bylaws. Plaintiffs thereafter brought, inter alia, breach of contract and
promissory estoppel claims under Argentine civil law against the Republic and
YPF in the Southern District of New York, seeking damages for the Republic's
non-compliance with the tender offer requirement as set forth in YPF's bylaws,
and for YPF's failure to enforce those requirements. After eight years of
litigation, Plaintiffs prevailed on their claims against the Republic, and the
district court granted summary judgment to YPF.
-7-
We hold that Plaintiffs' breach of contract damages claims against
the Republic are not cognizable under Argentina's civil codes and public law
governing expropriation, and accordingly REVERSE the district court's entry of
judgment for Plaintiffs on those claims. We AFFIRM the district court's dismissal
of the promissory estoppel claims against the Republic and YPF and its entry of
judgment for YPF on Plaintiffs' breach of contract claims. Finally, we REMAND
for further proceedings consistent with this opinion. 1
BACKGROUND
These appeals are taken from two of many cases brought in the
wake of the Republic's controversial decision in 2012 to renationalize YPF, the
country's largest oil and gas company, following a decade marked by economic
decline and the rise of political nationalism. We summarize the factual and
procedural history of these two suits as is relevant to the primary issue before us
now: the merits of Plaintiffs' contract-based damages claims against the Republic.
1
Because we affirm the district court's dismissal of Plaintiffs' claims against YPF,
we need not consider YPF's conditional cross-appeal challenging the district court's
damage calculations.
-8-
I. Factual Background
A. The Republic Privatizes YPF
YPF was founded as a state-run oil company in 1922 and is
incorporated under Argentine law. It was wholly owned and operated by the
Argentine government until 1993. As part of the country's free-market reform
and deregulation movement in the early 1990s, the Argentine government
decided to privatize YPF by selling the company to private investors through an
initial public offering ("IPO"). In preparation for the IPO, the Republic and YPF
amended certain key provisions of YPF's corporate bylaws (the "Bylaws").
Central to this case are provisions of the Bylaws that protect YPF's
minority shareholders from takeover acquisitions. Under § 7(d) of the Bylaws,
an acquiring shareholder must make a public tender offer to all holders of YPF's
outstanding shares -- that is, to all other YPF shareholders -- if the transaction
would result in the acquirer owning more than 15% of YPF's common stock,
known as its "Class D" shares. The acquirer is required to ensure the tender
adheres to procedures set out in §§ 7(e)-(f), including by complying with New
York Stock Exchange ("NYSE") and Securities and Exchange Commission ("SEC")
rules and regulations, publishing notice in New York City, and tendering the
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shares at an above-market price determined by the highest result of several
pricing formulas outlined in the Bylaws.
These tender offer requirements are expressly extended to control
acquisitions by the Argentine government. Section 28(A) of the Bylaws states
that the procedures of §§ 7(e)-(f) apply to "all acquisitions made by the National
Government, whether indirectly or directly, by any means or instrument, of
shares or securities of [YPF]" that result in "the National Government becom[ing]
the owner, or exercis[ing] the control of," a cumulative 49% of YPF's shares. Joint
App'x at 674 § 28(A). In essence, § 28(A) provides that minority shareholders
would be offered a compensated exit if and when the Argentine government
ever renationalized YPF. The Bylaws also provide that any Class D shares
acquired in breach of the tender offer requirements, including those acquired by
the Republic in a § 28(A) transaction, "shall not grant" voting, dividend, quorum,
and other rights. Id. at 657 § 7(h).
The Bylaws (as amended) took effect in May 1993, after the
Argentine executive branch ratified them via executive order and instructed the
Argentine Ministry of Economy and Public Works and Services to, in its capacity
as a YPF shareholder, submit the Bylaws and "cause the same to be approved."
- 10 -
Dist. Ct. Dkt. 363, Ex. 73 at 1-2. 2 The Bylaws and the tender offer requirements
therein were explicitly referenced in YPF's IPO Prospectus filed with the SEC,
which assured investors that if the Republic were to retake majority control of
YPF, it "first would be required to make a cash tender offer to all holders of Class
D shares on specified terms and conditions" outlined in the Bylaws. Joint App'x
at 502.
YPF's IPO raised billions of dollars from private investors. On June
29, 1993, YPF's Class D shares were listed on the Buenos Aires Stock Exchange,
and corresponding American Depositary Receipts ("ADRs") were listed on the
New York Stock Exchange ("NYSE"). 3 The sale of NYSE-listed ADRs, the largest
portion of YPF's IPO, generated over $1.1 billion in revenue for the Republic. All
in, the Republic sold 80% of its interest in YPF, including 59% of its Class D
shares. Post-IPO, the Republic remained a minority, non-controlling shareholder
of YPF.
2
District court materials cited are from the docket in Petersen Energía Inversora
S.A.U. v. Argentine Republic, No. 1:15-cv-02739 (S.D.N.Y.).
3
ADRs are dollar-denominated certificates, issued by a U.S. bank, that represent
ownership shares of a foreign security. To create an ADR, a U.S. depositary bank buys
shares of a foreign security and holds them in a foreign custodian bank. Issued ADRs
can be listed and traded on U.S. stock exchanges. In YPF's IPO, Bank of New York
Mellon purchased Class D shares deposited in the Republic and issued ADRs, each of
which represented an interest in a Class D share, that were then listed on the NYSE.
- 11 -
B. Plaintiffs Purchase YPF Stock
By 2008 -- fifteen years after the IPO -- nearly all of YPF's capital
stock was owned by Repsol S.A. ("Repsol"), a Spanish oil company. It was from
Repsol that Petersen began purchasing YPF ADRs. By 2011, Petersen had bought
ADRs representing just over 25% of YPF's Class D shares. Its stock acquisitions
were financed by highly leveraged loans from Repsol and a syndicate of financial
institutions that were secured against Petersen's YPF shares. Petersen intended
to service its loan interest with the dividend payments associated with the
collateralized shares. To facilitate this, it entered into a shareholder's agreement
with Repsol in which Repsol agreed to cause YPF to distribute 90% of its profits
as dividends twice a year, and to pay a one-time "special dividend" of $850
million after the purchase. Id. at 3294-95.
Eton Park began purchasing YPF ADRs in November 2010. By
March 2012, Eton Park owned ADRs representing about 3% of YPF's Class D
shares. At the time of the Republic's expropriation in 2012, Petersen and YPF
were the second- and third-largest holders of YPF's common stock.
- 12 -
C. The Republic Expropriates YPF Stock
By the early 2010s, the Republic's domestic oil and gas production
had steadily declined following a decade marked by currency crises, price
controls, and nationalist economic policies. The Argentine government began to
criticize Repsol's management of YPF, accusing Repsol of paying out YPF's
profits in shareholder dividends instead of investing them to develop new
energy reserves or increase its oil production during a period in which the
Republic had become a net energy importer, rather than exporter.
In early 2012, the Argentine press began reporting rumors that the
Republic was considering renationalizing YPF. The company's stock price fell
sharply in response to the rumors of renationalization. The reports proved
true -- on April 16, 2012, then-Argentine President Cristina Fernández de
Kirchner announced that the government would take a 51% controlling stake in
YPF. It would do so through a process known as expropriation, in which the
Argentine government is permitted under its domestic law to, under certain
circumstances, take private property for public use or benefit -- analogous to the
concept of eminent domain in U.S. law. To effectuate the expropriation, Kirchner
submitted a bill to the Argentine legislature authorizing the expropriation of 51%
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of YPF's Class D shares from Repsol. The government simultaneously issued an
executive order, Decree No. 530/2012 (the "Intervention Decree"), declaring that
the Republic was temporarily seizing YPF, taking immediate and complete
control of the company, and appointing an "Intervenor" vested with the powers
of YPF's Board of Directors and President to "ensure full compliance" with the
proposed legislation. Sp. App'x at 249.
The proposed expropriation legislation (the "YPF Expropriation
Law"), was passed by the Legislature on May 3, 2012, and took effect on May 7,
2012. See Law No. 26,741, May 3, 2012, [CXX] B.O. 32391. In accordance with the
Argentine Constitution and its General Expropriation Law, the YPF
Expropriation Law pronounced a national public need for the expropriation and
declared 51% of YPF's shares (held by Repsol) to be "a public interest and subject
to expropriation." Sp. App'x at 241. The YPF Expropriation Law also gave the
Argentine executive branch the right to "exercise all the political rights associated
with the shares subject to expropriation until the transfer of political economic
rights is completed." Id. at 241-42.
The Republic never conducted a tender offer as required by § 7 and
§ 28(A) of the Bylaws. Indeed, Argentine officials voiced their express refusal to
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do so. The day after the executive branch issued its Intervention Decree, the
Republic's Deputy Economy Minister Axel Kicillof -- who had been appointed
the temporary Vice-Intervenor of YPF -- announced in a speech before the
Argentine Senate that the government did not intend to issue a tender offer
because the requirements were a "bear trap" and it would be "stupid" for the
Republic to "buy everything according to the law of YPF itself, respecting its
bylaws." Joint App'x at 3693.
Some of YPF's minority shareholders quickly challenged the
Republic's failure to comply with the Bylaws' tender offer requirement. At YPF's
first post-expropriation shareholders' meeting on June 4, 2012 -- which Plaintiffs
did not attend -- several shareholders asserted that the Argentine government
violated the Bylaws and thus could not vote its shares or have them counted
towards the meeting quorum. The Republic voted the expropriated shares
anyway. After that June 4 meeting, some YPF shareholders sued in an Argentine
court alleging that the Republic had violated the Bylaws, and sought to compel
the Republic to conduct a tender. Repsol also sued in Argentina and Spain, and
brought a putative class action in the Southern District of New York on behalf of
all private shareholders challenging various aspects of the expropriation. These
- 15 -
suits, including the one in the Southern District, were dismissed after Repsol
agreed to a global settlement of all past and future minority shareholder claims
in connection with the expropriation for $5 billion. The global settlement was
reviewed and approved by the Republic's National Court of Appraisals, which
determined that the $5 billion compensation was "fair and reasonable" in light of
the value of the expropriated shares. Joint App'x at 3309-10. The Republic paid
the settlement and Repsol transferred title to the expropriated shares to the
Republic on May 8, 2014.
Unable to service its loan interest without YPF's dividend payments,
Petersen defaulted on its obligations, and its lenders foreclosed on its YPF ADRs
in May 2012. Petersen entered insolvency proceedings in Spain two months
later. As part of its bankruptcy liquidation plan, Petersen sold its claims in this
case to Prospect Investments LLC, a wholly owned subsidiary of Burford Capital
LLC ("Burford"), for €15 million. Under this litigation financing agreement,
Burford would receive 70% of the total judgment Petersen obtains in this lawsuit;
Petersen would receive the remaining 30%. Burford acquired Eton Park's claims
in this case in 2016, and would receive 75% of Eton Park's recovery.
- 16 -
II. Procedural History
A. Filing of Suit, Motions to Dismiss, and Interlocutory Appeal
Petersen filed suit in the Southern District of New York against the
Republic and YPF ("Defendants") on April 8, 2015. It brought breach of contract,
anticipatory breach, and promissory estoppel claims, alleging that the Republic
had violated the Bylaws by failing to conduct a tender offer, and that YPF had
breached its obligations under the Bylaws by failing to enforce the tender
requirement and associated penalties against the Republic. Petersen also
brought good faith and fair dealing claims, alleging that Defendants had
engaged in a campaign to depress YPF's share price leading up to expropriation
to the detriment of minority shareholders.
The district court denied Defendants' motions to dismiss the breach
of contract claims, rejecting their arguments based on, inter alia, the Foreign
Sovereign Immunities Act (the "FSIA"), act of state doctrine, and forum non
conveniens. See Petersen Energía Inversora, S.A.U. v. Argentine Republic, No. 15 Civ.
02739, 2016 WL 4735367, at *5, *7, *13 (S.D.N.Y. Sept. 9, 2016) (Petersen I). The
court dismissed the promissory estoppel claims against both Defendants, finding
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them duplicative of the breach of contract claims. Id. at *16. It also dismissed the
good faith and fair dealing claim against YPF. Id. at *15.
On interlocutory appeal, this Court affirmed the FSIA ruling and
declined to reach the act of state question, holding that "under the bylaws,
Argentina's expropriation triggered an obligation to make a tender offer for the
remainder of YPF's outstanding shares." Petersen Energía Inversora S.A.U. v.
Argentine Republic, 895 F.3d 194, 206 (2d Cir. 2018) (Petersen II), cert. denied, 139 S.
Ct. 2741 (2019); see also id. at 212. While Petersen's appeal was pending, Eton
Park filed a substantively similar suit against the Republic and YPF in November
2016. The district court designated the two actions as related, and they have
since proceeded in tandem.
Upon remand to the district court, Defendants filed a renewed
motion to dismiss based on forum non conveniens. The district court considered
the forum non conveniens arguments anew under the three-part analysis set forth
in Iragorri v. United Techs. Corp., 274 F.3d 65, 72 (2d Cir. 2001) (en banc). See
Petersen Energía Inversora S.A.U. v. Argentine Republic, No. 15 Civ. 02739, 2020 WL
3034824, at *6-14 (S.D.N.Y. June 5, 2020) (Petersen III). It again declined to dismiss
after reasoning that the addition of New York-based Eton Park strengthened the
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deference owed to Plaintiffs' choice of forum, public interests weighed heavily in
favor of litigation in New York, and the need to make and apply conclusions of
Argentine law did not warrant dismissal. It also rejected, in a footnote,
Defendants' invocation of abstention based on international comity, finding that
they had not shown "exceptional circumstances" justifying dismissal, and that
dismissal at that stage would be "woefully inefficient" given the time and money
already expended in what was then five years of litigation. Id. at *14 n.15.
B. Summary Judgment, Trial, and Judgment
After three more years of discovery, the parties cross-moved for
summary judgment. The district court granted summary judgment for Plaintiffs
on their breach of contract claims against the Republic on liability, but not
damages. See Petersen Energía Inversora, S.A.U. v. Argentine Republic, No. 15 Civ.
02739, 2023 WL 2746022, at *2, 4-5 (S.D.N.Y. Mar. 31, 2023) (Petersen IV). The
court construed Plaintiffs' claims as seeking damages for a straightforward
breach of contract based on § 28(A) of the Bylaws, and it reasoned that the
elements of such claims under Argentine civil law are analogous to those in U.S.
common law. It then found liability after noting that "key facts are not in serious
dispute" -- the Bylaws required the Republic to conduct a tender offer if and
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when it made a control acquisition, the Republic made such an acquisition via
the 51% expropriation, and it did not make the required tender. Id. at *5; see also
id. at *14. The district court then rejected the Republic's slate of defenses based
on Argentine contract, corporate, and public expropriation law.
The district court also granted summary judgment to YPF on the
breach of contract claims against it, finding that the Bylaws did not create an
affirmative obligation on the part of YPF to enforce the tender requirements or
enforce sanctions against the Republic for its noncompliance. 4
The cases proceeded to a bench trial on damages in July 2023. The
sole factual issue was whether, for purposes of calculating the required tender
offer price (and resulting damages), the Republic "acquired control" of the
expropriated shares and thus breached its Bylaw obligations when it issued its
Intervention Decree on April 16, 2012, or when the YPF Expropriation Law went
into effect on May 7, 2012. The court found that the Republic exercised indirect
control over the expropriated Repsol shares beginning April 16, 2012, when it
"deprived Repsol of control over its shares" through the Intervention Decree.
4 The district court also granted summary judgment for the Republic on the good
faith and fair dealing claim, finding that Argentine law does not recognize a good-faith
cause of action independent of a traditional breach of contract claim. Plaintiffs do not
contest this ruling on appeal.
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Petersen Energía Inversora, S.A.U. v. Argentine Republic, No. 15 Civ. 02739, 2023 WL
5827596, at *1 (S.D.N.Y. Sept. 8, 2023). It then selected an 8% simple interest rate
for prejudgment interest.
On September 15, 2023, the district court entered final judgment of
$7.5 billion in damages plus $6.9 billion in prejudgment interest to Petersen, and
$898 million in damages plus $817 million in prejudgment interest to Eton Park. 5
Together, the judgment exceeds $16.1 billion, with post-judgment interest
accruing. 6
5
The district court also dismissed all other claims against Argentina, including the
anticipatory breach, good faith and fair dealing, and promissory estoppel claims, and
dismissed all claims against YPF.
6
Because we conclude that the district court's grant of summary judgment for
Plaintiffs on their breach of contract claim against the Republic was erroneous, the
district court's post-judgment order requiring the Republic to transfer its YPF shares to
Plaintiffs in satisfaction of the judgment is vacated. Our decision thus may render moot
some or all of the pending appeals of the district court's orders related to turnover and
post-judgment discovery, some of which have already been stayed pending resolution
of these appeals on the merits. See, e.g., Petersen Energía Inversora, S.A.U., et al. v.
Argentine Republic, No. 25-2362-cv (2d Cir. 2026), stay granted, Dkt. No. 88 (2d Cir. Mar.
18, 2026); Eton Park Cap. Mgmt. et al. v. Argentine Republic, No. 25-2363-cv (2d Cir. 2026),
stay granted, Dkt. No. 75 (2d Cir. Mar. 18, 2026); Petersen Energía Inversora, S.A.U., et al. v.
Argentine Republic, No. 25-1687 (2d Cir. 2026); Eton Park Cap. Mgmt. et al. v. Argentine
Republic, No. 25-1689-cv (2d Cir. 2026); Petersen Energía Inversora, S.A.U., et al. v. YPF
S.A., No. 25-2629-cv (2d Cir. 2026); Eton Park Cap. Mgmt. et al. v. YPF S.A., No.
25-2630-cv (2d Cir. 2026).
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DISCUSSION
Faced with an unprecedented multi-billion dollar damages award,
Defendants now raise a host of challenges to the district court's rulings on the
motions to dismiss and cross-motions for summary judgment, and its entry of
final judgment. We first discuss the Republic's threshold challenges based on
Plaintiffs' standing, forum non conveniens, and international comity. We then turn
to the merits, beginning with an overview of relevant Argentine civil and public
laws that govern Plaintiffs' substantive contract-based claims. After determining
that Plaintiffs' breach of contract claims against the Republic fail as a matter of
Argentine law, we conclude with a discussion of their promissory estoppel
claims against the Republic and remaining claims against YPF.
I. Threshold Issues
The Republic advances several arguments for reversal that we
address prior to the merits. We first discuss the Republic's challenge to Plaintiffs'
standing based on the timing of when the Republic's obligation to tender was
triggered, and conclude that Plaintiffs do have standing to bring suit. We next
consider the Republic's threshold arguments that these two cases should never
have been adjudicated in a United States court based on forum non conveniens and
- 22 -
international comity-based abstention, and conclude that we need not decide
whether the district court abused its discretion in its application of either
doctrine given the procedural posture of these cases and our decision to reverse
on the fully briefed and litigated merits.
A. Standing
As a preliminary matter, we agree with the district court that
Plaintiffs have standing to bring their breach of contract claims against the
Republic. Section 28 of YPF's Bylaws extends the tender offer requirement to "all
acquisitions made by the National Government, whether directly or indirectly"
that result in the government "becom[ing] the owner, or exerci[sing] the control
of" an aggregate 49% of YPF's common stock. Joint App'x at 674 § 28(A). The
Republic argues that the "acquisition[]" triggering the obligation to tender did
not occur until the Republic formally received title to the expropriated Repsol
shares in May 2014, at which point Plaintiffs no longer held YPF shares and thus
no longer had standing to pursue these claims because they lacked a concrete
stake in the outcome of the litigation.
We disagree. The Republic at least "indirectly" owned or controlled
the shares it expropriated from Repsol upon passage of the YPF Expropriation
- 23 -
Law two years earlier in May 2012. The YPF Expropriation Law authorized the
seizure of 51% of YPF's shares held by Repsol, pushing the Republic's ownership
of YPF over the 49% threshold required to trigger the tender obligation in § 28(A)
that forms the basis of Plaintiffs' claims. Although the YPF Expropriation Law
did not formally deliver title of the shares to the Republic, it explicitly granted
the Republic the authority to "exercise all the political rights associated with the
shares subject to expropriation until the transfer of political and economic rights
is completed" -- that is, until the time period to settle expropriation-related
compensation set out under Argentina's General Expropriation Law elapsed, at
which point the shares would be formally transferred. YPF Expropriation Law
art. 9 (Sp. App'x at 241). Indeed, the YPF Expropriation Law stipulated that the
Republic's authority to "exercise . . . rights associated with the shares" was for the
specific purpose of "ensur[ing] compliance with [the law's] objectives" -- that is,
the objective of renationalizing YPF by controlling the majority of its common
stock. Id. And the Republic clearly did "exercise the control of" those shares, by
cancelling dividend payments and shareholder meetings, voting the shares at the
June 4, 2012 shareholder meeting, and, at the very least, depriving Repsol of the
ability to exercise rights associated with the shares it had formerly controlled.
- 24 -
Accordingly, the Republic exercised control of 51% of YPF's
common stock when the YPF Expropriation Law was enacted in May 2012, thus
triggering its obligation to conduct a tender under § 28(A) of the Bylaws. It is
undisputed that Plaintiffs held YPF shares when the YPF Expropriation Law
went into effect. Plaintiffs therefore have standing to bring their contract-based
claims based on the Republic's noncompliance with § 28(A).
B. Forum Non Conveniens and International Comity
The Republic next asserts that the district court should have
dismissed these cases at the outset under the doctrine of forum non conveniens and
the principle of abstention based on international comity.
Although Plaintiffs' substantive legal claims are governed by
Argentine law, see infra Part II.B, the Republic's threshold arguments based on
forum non conveniens and international comity are governed by U.S. federal law.
See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947) (adopting doctrine of forum
non conveniens as a matter of federal law); Royal & Sun All. Ins. Co. of Canada v.
Century Int'l Arms, Inc., 466 F.3d 88, 92-94 (2d Cir. 2006) (discussing abstention
based on international comity as a matter of federal law).
- 25 -
The principle of forum non conveniens provides an exception to the
established rule that federal courts have a "virtually unflagging obligation . . . to
exercise the jurisdiction given them." Colo. River Water Conservation Dist. v.
United States, 424 U.S. 800, 817 (1976). The district court assessed whether to
exercise this exception twice in this case -- first in response to Defendants' initial
motion to dismiss, and again in response to Defendants' renewed motion to
dismiss following our decision in the FSIA interlocutory appeal. In conducting
the second analysis, the district court reasoned, under the three-part test set forth
in Iragorri, 274 F.3d at 71-75, that the addition of New York-based Eton Park
increased the deference warranted to Plaintiffs' choice of forum, private interests
in favor of litigating in the Republic were neutral, and the public interests
"weigh[ed] heavily in favor of litigation in New York." Petersen III, 2020 WL
3034824, at *14.
We acknowledge that there are serious forum-related issues
presented by these cases -- the propriety of the Republic's decision to "take" the
property of a Spanish company under Argentine law has now been litigated in a
U.S. court for ten years. Nonetheless, our Court has explained that forum non
conveniens is a non-jurisdictional doctrine, the application of which "lies wholly
- 26 -
within the broad discretion of the district court." Iragorri, 274 F.3d at 72 (citing
Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 81 F.3d 1224, 1232 (2d Cir.
1996)). Accordingly, we review forum non conveniens rulings for abuse of
discretion, see Esso Expl. & Prod. Nigeria Ltd. v. Nigerian Nat'l Petroleum Corp., 40
F.4th 56, 70 (2d Cir. 2022), and parties challenging such rulings after a full trial on
the merits must display "substantial prejudice" warranting reversal. Indasu Int'l,
C.A. v. Citibank, N.A., 861 F.2d 375, 380 (2d Cir. 1988); see also In re Air Crash
Disaster Near New Orleans, 821 F.2d 1147, 1168 (5th Cir. 1987) (reasoning that "the
trial's occurrence and completion bolsters the district court's original decision to
deny the motion to dismiss" based on forum non conveniens), vacated on other
grounds, Pan American World Airways, Inc. v. Lopez, 490 U.S. 1032 (1989). 7
Given the latitude afforded to district courts on forum non conveniens
determinations, the reality that we are reviewing this decision after a trial has
been conducted and final judgment has been entered, and our ruling on the
merits, we need not decide whether the district court abused its discretion here
in a manner that satisfies the high bar for reversal in this procedural posture.
7 Moreover, it is exceedingly rare for our Court to reverse a district court's decision
to deny a motion to dismiss based on forum non conveniens at any stage of litigation. See
Figueiredo Ferraz E Engenharia de Projecto Ltda. v. Republic of Peru, 665 F.3d 384, 400 (2d
Cir. 2011) (Lynch, J., dissenting).
- 27 -
The district court also rejected the Republic's argument -- presented
as a component of the forum non conveniens argument below and as a standalone
argument on appeal -- that Plaintiffs' suits were precluded by abstention
principles based on international comity. We typically review an international
comity ruling for abuse of discretion, but have noted that because such rulings
implicate a district court's "decision to abstain from exercising jurisdiction," our
inquiry is "more rigorous" and has "little practical distinction" from de novo
review. Royal & Sun, 466 F.3d at 92 (citation modified).
On the Republic's telling, it has a strong sovereign interest in
adjudicating these cases, as expressed by its existing statutory framework for
resolving expropriation-related claims, requiring the district court to "surrender"
its jurisdiction even in the absence of a parallel proceeding in Argentine court.
Cf. id. at 93-94 (setting forth a series of non-exhaustive factors that may constitute
"exceptional circumstances" as required to justify abstention where there are
pending parallel proceedings in a foreign court). Again, however, the merits of
Plaintiffs' claims have been fully decided by a district court and extensively
briefed on appeal. Accordingly, we also decline to decide whether international
comity concerns warranted abstention here.
- 28 -
Because we ultimately conclude that Plaintiffs' claims fail as a matter
of Argentine law, we need not -- and indeed do not -- rest our conclusions on the
Republic's threshold arguments about the propriety of conducting this litigation
in a U.S. court. Assuming without deciding that proceeding in Plaintiffs' choice
of forum was permissible, we nevertheless reverse the district court's decision on
the merits of Plaintiffs' primary breach of contract claims as a matter of
substantive Argentine law.
II. The Merits
A. Standard of Review
The district court's interpretation and application of foreign law is
reviewed de novo. Animal Sci. Prods., Inc. v Hebei Welcome Pharm. Co., 585 U.S. 33,
42 (2018). While we give "respectful consideration" to the Republic's
interpretation of its own law, we are "not bound to accord conclusive effect" to its
statements, and instead "may consider any relevant material or source" in
making our determination de novo. Id. at 36 (citing Fed. R. Civ. P. 44.1).
We review the district court's decision to grant summary judgment
on the breach of contract claim de novo, "construing the evidence in the light most
favorable to the party against whom summary judgment was granted and
- 29 -
drawing all reasonable inferences in that party's favor." Unkechaug Indian Nation
v. Seggos, 126 F.4th 822, 828 (2d Cir. 2025) (citation modified). "Summary
judgment is required if there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Id.
Finally, we review the district court's dismissal of Plaintiffs'
promissory estoppel claims under Rule 12(b)(6) de novo as well. See Ezrasons, Inc.
v. Travelers Indem. Co., 89 F.4th 388, 394 (2d Cir. 2023).
B. Argentine Legal Framework
The parties agree that Plaintiffs' substantive legal claims -- that is,
their breach of contract and promissory estoppel claims -- are governed by
Argentine law. YPF is incorporated under the laws of the Republic, and the
Bylaws contain a choice of law clause providing that they, and any claims arising
from them, are "governed by Argentine law." Joint App'x at 519. We apply New
York choice of law rules, see Thea v. Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015),
under which questions related to the "internal affairs" of a corporation --
including those involving the relationship between a company and its
shareholders -- are generally "decided in accordance with the law of the place of
- 30 -
incorporation." Scottish Air, 81 F.3d at 1234; see also Eccles v. Shamrock Cap.
Advisors, 245 N.E.3d 1110, 1122-23 (N.Y. 2024).
Accordingly, we begin with an overview of the Argentine legal
codes implicated by Plaintiffs' claims. First, we summarize the relevant
Argentine civil and commercial codes and, second, we summarize the Argentine
General Expropriation Law.
1. Argentine Civil and Commercial Codes 8
The primary Argentine legal codes at issue are the Argentine Civil
Code and Commercial Code, which outline the relevant doctrines of Argentine
contract and corporate law, respectively. 9 Under the Civil Code, contracts are
categorized as "unilateral" or "bilateral." Código Civil [Cód. Civ.] [Civil Code]
art. 1138 (Sp. App'x at 208). These definitions mirror those in U.S. common law:
8
Unless otherwise noted, we rely throughout this opinion on the English
translations of Argentine legal materials that the Republic provided in the Special
Appendix and Joint Appendix. Plaintiffs have not provided any additional translations
on appeal. The parties disagree over the translation of one provision of the Argentine
Civil Code -- Article 653 -- that we do not address here. The record before us does not
indicate any dispute over the proffered translations of the legal materials discussed in
this decision.
9
The Republic's Civil and Commercial codes were merged into a single code in
August 2015. See Código Civil y Comercial de la Nación, Law No. 26,994, Oct. 7, 2014,
[CXXII] B.O. 32985 Suplemento. The translations provided by the parties in the Special
Appendix and Joint Appendix appear to reference the pre-2015 codes, which governed
at the time Petersen filed its Complaint in April 2015.
- 31 -
Unilateral contracts are "those in which only one of the parties undertakes an
obligation with respect to the other," while bilateral contracts are "those in which
both parties to the contract assume reciprocal obligations." Id. (emphasis added).
The two types of contractual obligations have different corresponding remedial
mechanisms. If a party has not performed its promise "in contracts with
reciprocal obligations" -- that is, in a bilateral contract -- the non-breaching party
"may demand that the non-performing party fulfill their obligation" -- that is,
demand specific performance. Cód. Civ. art. 1204 (Sp. App'x at 205); accord
Código de Comercio [Cód. Com.] [Commercial Code] art. 216 (Sp. App'x at
210). 10 Then, if a waiting period has elapsed "without the obligation being
10
Contrary to Plaintiffs' contention, the breach of contract claims as framed by
Plaintiffs are governed by Article 1204 of the Civil Code and Article 216 of the
Commercial Code. Plaintiffs argue repeatedly in their briefs that the Bylaws constituted
a bilateral contract between the Republic and YPF's minority shareholders. If the
Bylaws are a bilateral contract, then they are governed by Articles 1204 and 216, which
expressly apply to "contracts with reciprocal obligations." Cód. Civ. art. 1204 (Sp. App'x
at 205); accord Cód. Com. art. 216 (Sp. App'x at 210). Moreover, the breach of contract
cases cited by the Republic are all governed by Article 216 of the Commercial Code,
which is worded identically to Article 1204 of the Civil Code in the translations
provided by the parties. See Cámara Nacional de Apelaciones en lo Comercial de la
Capital Federal [CNCom.] [National Court of Commercial Appeals of the Federal
Capital], Chamber A, 2010/06/10, "Lipnik, Alberto Teodoro v. Constructora San José the
Republic S.A.," L.L. Online, AR/JUR/32215/2010 (Arg.) (Sp. App'x at 369-70), CNCom.,
Chamber A, 1999/08/31, "Lezcano, Juan C. v. Arismendi S.C.S.," La Ley [L.L.] (2000-D-
- 32 -
fulfilled," the contract is terminated and the non-breaching party "shall have the
right to seek compensation for damages." Cód. Civ. art. 1204 (Sp. App'x at 205);
accord Cód. Com. art. 216 (Sp. App'x at 210).
The Commercial Code also contains the General Companies Law
("GCL"), which sets forth Argentine corporate governance law. See Law No.
19,550, Apr. 25, 1972, [LXXX] B.O. 22409, as amended. The GCL provides,
among other things, a process by which a company's shareholders may challenge
actions that violate the corporation's bylaws. Shareholders representing at least
5% of the capital stock can convene a special shareholder's meeting to challenge a
decision made in violation of the bylaws. At that meeting, shareholders can
challenge any resolution adopted in contravention of the bylaws as void, and
then bring legal action against the company within three months of the meeting.
If the adopted resolutions are ultimately deemed void, the shareholders who
voted in favor of it face joint and several liability.
12) (Arg.) (Sp. App'x at 344-45). Although we need not decide whether Plaintiffs were
required to seek specific performance before suing the Republic for damages, we
conclude, for purposes of determining whether these claims are cognizable under
Argentine law, that Articles 1204 and 216 apply to the contract-based claims that
Plaintiffs have advanced.
- 33 -
2. Argentine General Expropriation Law
Despite Plaintiffs' effort to cast this as an ordinary breach of contract
dispute between two corporate shareholders, it is evident that this case is not so
simple. Plaintiffs' claims -- even if styled as typical contractual claims -- arise
from the Republic's renationalization of YPF through an act of expropriation.
They therefore necessarily implicate the Republic's public law regime in addition
to its private law civil codes.
Article 17 of the Argentine Constitution provides that the
government may expropriate property if such an expropriation has been
"authorized by law" and the owners of the property have been "previously
compensated." Art. 17, Constitución Nacional [Const. Nac.] (Arg.) (Sp. App'x at
195). The procedures, conditions, and remedies for expropriation are governed
by the General Expropriation Law ("GEL"). See Law No. 21,499, Jan. 17, 1977,
[LXXXV] B.O. 23581. Article 4 of the GEL provides:
Property of any kind that is suitable or necessary for the satisfaction
of the "public utility," irrespective of its legal nature, may be the
subject of expropriation, including assets in the public or private
domain, whether they qualify as things or otherwise.
GEL art. 4 (Sp. App'x at 229).
- 34 -
Although the government may make such a "public utility"
determination to effectuate an expropriation, it must also pay the owner of the
expropriated property compensation that "include[s] only the objective value of
the asset and the damages that are a direct and immediate consequence of the
expropriation." GEL art. 10 (Sp. App'x at 230).
The amount of this compensation is determined pursuant to a
process laid out in the GEL. If the expropriator and property owner cannot agree
on the amount of compensation, the expropriator can bring judicial action within
two years of the authorizing law going into effect to fix the value of the property
taken. While this two-year clock for judicial action is running, Article 28 of the
GEL provides that:
No action by third parties may impede the expropriation or its
effects. The rights of the claimant shall be considered transferred
from the thing to its price or to the compensation, leaving the thing
free of any encumbrance.
GEL art. 28 (Sp. App'x at 233).
With these Argentine legal codes in mind, we now turn to the merits
of Plaintiffs' contract-based claims against the Republic.
- 35 -
C. Plaintiffs' Claims Against the Republic
The crux of this ten-year-old litigation is Plaintiffs' breach of contract
claims against the Republic for damages arising from the Republic's failure to
conduct a tender offer upon expropriation. Plaintiffs also argue, in essence, that
if the Court rules for the Republic on their breach of contract claims, then it
should revive the promissory estoppel claims that were dismissed at the Rule
12(b)(6) stage. We address each set of claims in turn.
1. Breach of Contract
We turn to the merits of Plaintiffs' breach of contract claims against
the Republic with two overarching observations in mind.
First, under Argentine law, as under United States law, corporate
bylaws are not generally understood to create bilateral obligations among
shareholders of a company that are enforceable under contract law, even if they
set forth a contractual relationship among those shareholders. As one of the
Republic's experts explained, bylaws are a "plurilateral organizational contract"
and thus "do not create specific bilateral obligations between shareholders." Joint
App'x at 1561-62. Although bylaws are often colloquially referred to, including
in U.S. law, as "contracts" among shareholders, that analogy holds to the extent
- 36 -
that, for example, the meaning of their text is discerned through traditional tools
of contract interpretation. See, e.g., Centaur Partners, IV v. Nat'l Intergroup, Inc.,
582 A.2d 923, 928 (Del. 1990) (reasoning that bylaws are "contracts among the
shareholders of a corporation" in that "the general rules of contract interpretation
are held to apply"); see also Joint App'x at 3438-40 (YPF's Expert Report
explaining the limits of the "contract" metaphor under Argentine law from a
comparative lens).
The primary function of corporate bylaws, however, is to provide a
set of rules governing a corporation's internal operations, rather than to stipulate
a set of legal obligations owed by the contractual parties to one another. See Joint
App'x at 1561 (Republic's Expert Report explaining that bylaws are "rules that
govern how a company functions"), 3437 (YPF's Expert Report explaining that
bylaws provide the "governance rules of corporations"); see also Hollinger Intern.,
Inc. v. Black, 844 A.2d 1022, 1078-79 (Del. Ch. 2004) ("Traditionally, the bylaws
have been the corporate instrument used to set forth the rules by which the
corporate board conducts its business."). It follows, then, that the comparison of
- 37 -
bylaws to contracts for purposes of textual interpretation does not automatically
import the host of contract-based remedies to the bylaws context. 11
Second, as noted above, this is not a run-of-the-mill civil contract
dispute between two private parties. Instead, Plaintiffs' claims against the
Republic arise from, and are being litigated in the shadow of, a governmental
expropriation. 12 These damages suits -- even if styled as ones brought to
remediate contract-based injuries -- thus necessarily implicate the GEL, which, by
11
Although not dispositive, amici also note that at least two U.S. courts have
rejected, as a matter of state law, shareholder-versus-shareholder breach of contract
claims based on corporate bylaws akin to Plaintiffs' claims. See Brief of Amicus Curiae
Law Professors in Support of Defendant-Appellant-Cross-Appellee at 8-11, Petersen
Energía Inversora S.A.U. v. Argentine Republic, YPF S.A. (2d Cir. 2025) (No. 23-7370-cv)
(discussing Quantum Tech. Partners II, L.P. v. Altman Browning & Co., No. 08-CV-376-BR,
2009 WL 4826474 (D. Or. Dec. 8, 2009), aff'd, 436 F. App'x 792 (9th Cir. 2011) (applying
Delaware law), and In re Pearl, No. 16-20305, 2017 WL 932951 (Bankr. E.D. Ky. Mar. 8,
2017) (applying Kentucky law)).
12
Contrary to Plaintiffs' contention, our decision in the FSIA interlocutory appeal
does not preclude our recognition that these cases were brought following an act of
expropriation. In our prior decision, we held that Petersen's claims were "based on" the
Republic's breach of a commercial obligation that had a direct effect on the United
States, such that the claims fell within the FSIA's commercial activity exception. See
Petersen II, 895 F.3d at 207, 211. This was true even if the Republic's "obligation to
conduct a tender offer . . . was triggered by its sovereign act of expropriation." Id. at 207
(emphasis added). But our holding that an act was not "sovereign" for purposes of
determining whether a U.S. court had subject matter jurisdiction under the FSIA does
not mean, by necessity or by implication, that the act does not implicate foreign public
law that governs actions performed by a sovereign, including acts of expropriation by a
sovereign government.
- 38 -
its plain language and purpose, serves as the primary legal framework
governing expropriation under Argentine law.
Taking these observations into consideration, we now reverse the
decision of the district court for two independent reasons. First, under Argentine
civil law, the Bylaws did not create bilateral promises giving rise to a contractual
obligation on the part of the Republic to YPF's other shareholders, including to
Plaintiffs. Second, even assuming the Bylaws did create a bilateral contract,
Plaintiffs' breach of contract claims for damages are precluded by the Republic's
public law governing expropriation.
a. Argentine Contract Law
The principles of contract interpretation under Argentine law mirror
those of U.S. common law. Argentine law instructs courts to look to the objective
plain meaning of contractual language, as it is understood "according to general
usage." Cód. Com. art. 217 (Sp. App'x at 210). If the contractual language is clear
and unambiguous, it "cannot be modified by interpretations based on the spirit
of the clauses, presumed intention of the parties or the purposes pursued."
Cámara Nacional de Apelaciones en lo Comercial de la Capital
Federal [CNCom.] [National Court of Commercial Appeals of the Federal
Capital], Chamber B, 1997/12/30, "Motta v. Abraxas Construcciones," La Ley
- 39 -
[L.L.] (1998-F-283) (Arg.) (Joint App'x at 2945).
The elements of a breach of contract claim under Argentine law are
"(1) the existence of a valid and binding contract; (2) a breach of that contract;
(3) damages to the plaintiff; (4) that the damages were attributable to the
breaching party; and (5) the breaching party acted negligently or willfully or was
subject to strict liability." Petersen IV, 2023 WL 2746022, at *6. For a breach claim
to be valid, therefore, there must be a "valid and binding contract" between the
parties; here, there would have to be a valid contract between Plaintiffs and the
Republic in the latter's capacity as a shareholder of YPF. Accordingly, the
question is whether § 7 and § 28(A) of YPF's Bylaws create the type of "valid and
binding contract" between two corporate shareholders that gives rise to a valid
breach of damages claim under Argentine law.
The definition of a bilateral contract under Argentine law is parallel
to that under U.S. common law. See Cód Civ. art. 1138 (Sp. App'x at 208)
(defining bilateral contracts as "those in which both parties to the contract
assume reciprocal obligations"); cf. 1 Williston on Contracts § 1:18 (4th ed. 2025)
("A bilateral contract exists when both parties exchange mutual or reciprocal
promises."). The defining feature of a bilateral contract under Argentine (and
- 40 -
U.S.) law is the existence of "reciprocal obligations," such as promises between
contractual parties to provide goods or services in exchange for payment. See,
e.g., "Lipnik," L.L. Online, AR/JUR/32215/2010 (Sp. App'x at 346) (contractor
suing for unpaid fees after a construction company failed to pay its work
progress certificate); "Lezcano," L.L. (2000-D-12) (Sp. App'x at 344) (plaintiff
suing for damages and losses incurred due to a defendant's unilateral breach of
an oral distribution agreement). Bilateral contracts under Argentine law thus
resemble what we commonly understand in U.S. common law as contracts
resulting from agreements "containing mutual promises imposing some legal
duty or liability on each promisor." 1 Williston on Contracts § 1:18.
As noted above, corporate bylaws, on the other hand, do not
typically contain "mutual promises" that a corporation's shareholders owe to one
another, and are instead more aptly understood as creating a set of multilateral
rules between the corporation and its shareholders that dictate the internal
governance of the corporate entity. One of the Republic's commercial appellate
courts has explained that, under Argentine law, "the rights and the obligations of
the [shareholders] revolve around their relations with the legal subject called the
company," rather than "in relation to each one of the other [shareholders]
- 41 -
individually . . . ." CNCom., Chamber A, 1999/10/22, "Gatti, Ernesto Ignacio and
other v. Bulad, Alfredo Ragueb s/ summary," El Derecho [E.D.] (2000-188-694)
(Arg.) (Sp. App'x at 335). Consistent with Gatti's articulation of the nature of
corporate bylaws under Argentine law, we have previously described YPF's
Bylaws as a "contract governing the relationship among YPF, [the Republic] (in
its capacity as a shareholder), and other YPF shareholders." Petersen II, 895 F.3d
at 199. Neither Gatti's explanation of the general operation of corporate bylaws
under Argentine law nor our formulation of YPF's Bylaws specifically in Petersen
II suggest that they would create bilateral obligations between shareholders that
are enforceable through a contract-based damages suit.
Plaintiffs acknowledge that corporate bylaws generally do not give
rise to bilateral obligations, but argue that they could do so if they contained
specific duties owed by certain shareholders to others. Section 28(A) of the
Bylaws, Plaintiffs contend, does just that by specifically articulating an obligation
owed by one shareholder (the Argentine government) to others (the minority
shareholders) upon the occurrence of a contractually specified condition (a
renationalizing transaction). See also Petersen IV, 2023 WL 2746022, at *12
(reasoning that "the Republic promised security holders that it would provide
- 42 -
them with a compensated exit if it reacquired control over the requisite number of
shares").
Even assuming corporate bylaws could contain embedded bilateral
obligations under Argentine law, there are no such obligations created by
§ 28(A). To be sure, § 28(A) singles out the Republic among all other current or
potential YPF shareholders, stating that that the tender offer requirements "shall
apply to all acquisitions made by the National government" that result in the
Republic cumulatively holding 49% or more of YPF's shares. Joint App'x at 674
§ 28(A). But the only reason the "National government" is mentioned by name in
§ 28(A) is because the section contains a higher triggering share percentage than
what applies to ordinary acquirers under § 7(d). In other words, the purpose of
specifically naming the Republic in § 28(A) is to establish a higher threshold for
the size of the control block the Republic can acquire before it must conduct a
tender, rather than to create a specific bilateral obligation that it owes to the
minority shareholders. This is underscored by the fact that § 28(A) never names
the minority shareholders as beneficiaries of or counterparties to the tender offer
requirement. Indeed, if we were to view § 28(A) -- or even the Bylaws as a whole
-- as establishing a set of "reciprocal obligations," it is difficult to identify what
- 43 -
the minority shareholders would owe as a "mutual promise" to the Republic in
exchange for the Republic's obligation to tender.
Moreover, Plaintiffs and their experts have not cited to any
Argentine cases, below or on appeal, that recognize a breach of contract suit
between shareholders arising out of a violation of corporate bylaws. And
indeed, Plaintiffs' chosen cause of action and remedy were not pursued by the
many other similarly situated YPF minority shareholders, who, rather than
bringing contract-based damages claims following the expropriation, instead
attempted to enforce § 28(A) through Argentine corporate law mechanisms.
YPF's other minority shareholders objected to the Republic's attempt to
participate in the June 4, 2012 shareholders' meeting, then filed suit in the
Argentine courts to nullify shareholder resolutions passed at that meeting as
adopted in violation of the Bylaws -- all in accordance with the GCL's procedure
for challenging actions that violate a company's bylaws.
Perhaps it is true that, as Plaintiffs argue, the Republic made
"uniquely clear promises" in these Bylaws and committed a "uniquely egregious
breach" by flagrantly refusing to conduct a tender offer to YPF's many private
investors who had bought assuming they would be protected from
- 44 -
renationalization. Plaintiffs' Br. at 51. But in interpreting the unambiguous
language of § 28(A) in accordance with its "general usage," and in the absence of
Argentine authority guiding us otherwise, we decline to find a reciprocal
obligation in § 28(A) that is enforceable in a contract-based damages suit brought
by one corporate shareholder against another.
b. The General Expropriation Law
Our interpretation of the Bylaws is based on the "general usage" of
the language of § 28(A). But it is also informed by the context of the
governmental expropriation from which these claims arise. Accordingly, even if
bylaws could create reciprocal obligations, and even if we assumed § 28(A) does
so, Plaintiffs' claims would nonetheless be precluded by the GEL -- the Republic's
public law governing expropriation.
We are unpersuaded by Plaintiffs' argument that this case does not
implicate the GEL, which establishes a comprehensive procedure for resolving
claims arising from expropriation. Although we need and do not decide whether
the GEL displaces the private contract law of the Civil Code, the subject and
substance of the GEL certainly suggest that these claims implicate Argentine
public law. See Cód Civ. art. 2611 (Sp. App'x at 206) (providing that
"[r]estrictions imposed on private ownership solely in the public interest are
- 45 -
governed by Administrative Law"). Moreover, when YPF's other minority
shareholders sought a judicial order from an Argentine court to compel the
Republic to conduct a tender offer shortly after the expropriation, the Republic's
highest federal court stated that it was "clear that the aspects of administrative
law" -- that is, the GEL -- "are of primary relevance to the resolution of this case."
Corte Suprema de Justicia de la Nación [CSJN] [National Supreme Court of
Justice], 2014/08/20, "De San Martín, José et al. v. EN – PEN," S.C. Comp. 731. L.
XLIX (Arg.) (Sp. App'x at 255). 13 Plaintiffs' claims -- though seeking damages for
breach of contract, rather than an order to compel the execution of the tender
offer -- stem from the same expropriation and failure to tender by the Republic,
thus also implicating the GEL.
Moreover, the GEL clearly contemplates the possibility of parties
bringing judicial action against the expropriator in the aftermath of an
expropriation. In anticipation of this reality, the GEL explicitly forecloses actions
"by third parties [that] impede the expropriation or its effects" while the
13
De San Martín is not wholly dispositive of the question presented here because it
was a jurisdictional rather than merits determination, and because the De San Martín
plaintiffs sought to enforce the Bylaws by compelling the Republic to conduct the
required tender offer. Here, by contrast, Plaintiffs seek damages resulting from the
Republic's failure to tender, rather than seeking to compel specific performance.
- 46 -
expropriator and property owner determine the amount of compensation owed
to the owner. GEL art. 28 (Sp. App'x at 233). The GEL's preclusion of third-party
lawsuits was likely intended to mitigate the fallout from the exact kinds of claims
brought by Plaintiffs here, which have clearly "impede[d]" the Republic's
expropriation of Repsol's shares by subjecting the Republic to protracted
litigation regarding the propriety of its actions, imposing costs on the Republic
beyond those assessed in connection with the expropriation itself, and ultimately
rendering the Republic's control of the shares uncertain. See Petersen Energía
Inversora, S.A.U. v. Argentine Republic, No. 15 Civ. 02739, 2025 WL 1796392, at *1
(S.D.N.Y. June 30, 2025) (granting transfer of the Republic's YPF shares in
satisfaction of the judgment).
It is true that, as Plaintiffs argue, the tender offer requirement did
not literally bar the expropriation, because the Republic did successfully deprive
Repsol of control over 51% of its shares and eventually take title to them. But it
is difficult to conclude that the evident consequences of Plaintiffs' lawsuits,
which have saddled the Republic with ten years of litigation and a damages
award representing 45% of its annual national budget, fall outside the plain
meaning of "impede." These cases -- which functionally seek to extract payment
- 47 -
for the Republic's seizure of Repsol's shares to the tune of $16.1 billion -- have
undoubtedly "interfere[d] with" the act of expropriation, even if they did not
actually prevent its completion.
The Republic also points to several other Argentine cases in which
Argentine courts have held that GEL article 28 renders impermissible private
contractual conditions that interfere with a properly declared expropriation, even
if they do not literally prevent its occurrence. In one case, the Argentine National
Supreme Court of Justice held that the plaintiff could not enforce a contractual
provision requiring the city to give five years' notice before an expropriation,
because doing so "would entail conditioning the State in the exercise of its
irrevocable discretion to establish the moment at which the public interest [in
expropriation] exists." CSJN, 1975/04/14, "Sociedad de Electricidad de Rosario,"
Fallos (1975-291-290) (Arg.) (Sp. App'x at 312). There, the court explained that
"the expropriation itself is not a negotiable issue [between the parties], since its
public nature does not reconcile with the free will representing contractual
negotiations." Id. Accordingly, the decision to expropriate overrode any existing
contractual conditions to the extent they would affect or "impede" the
expropriation, even if the parties may negotiate "the determination of a fair
- 48 -
compensation for the expropriation" pursuant to the process laid out in the GEL.
Id. In another case, the Supreme Court invalidated a contract obligation
requiring the government to build two crossings over the land it expropriated
under GEL article 28's identically worded statutory predecessor, reasoning that
the expropriator was instead required to compensate the owner for such
encumbrances out of the value of the expropriated property. See CSJN,
1911/11/21, "Ferrocaril Central Argentino v. L. de Fusse," Fallos (1912-115-59)
(Arg.) (Sp. App'x at 283).
As these cases illustrate, GEL article 28 precludes private suits
brought in the wake of expropriation based on existing contractual obligations to
the extent fulfillment of those obligations would "impede," or interfere with, the
expropriation. It instead channels those disputes into the compensation-setting
mechanism set forth elsewhere in the GEL. Perhaps Plaintiffs could have sought
compensation by bringing a claim against the Republic under the GEL's
procedures, or more likely against Repsol's $5 billion global settlement with the
Republic, given it was Repsol's YPF shares that were "taken" through the
expropriation. We do not opine on whether Plaintiffs should have done so. We
merely conclude that these claims for contract-based damages -- even if they
- 49 -
were cognizable under Argentine contract and corporate law -- likely "impede
the expropriation or its effects," and are thus barred under the text and purpose
of the GEL. GEL art. 28 (Sp. App'x at 233).
∗ ∗ ∗
At the end of the day, none of the parties involved in these two cases
dispute that the Republic violated YPF's Bylaws. The Republic did so after tying
its own hands with a tender offer requirement and repeatedly "tout[ing] these
protections" in its IPO prospectus and SEC filings in the 1990s. Petersen II, 895
F.3d at 200. Its reason for doing so was plainly to assure private investors --
many of whom were based in the United States -- that they would be protected in
the event the Republic decided to renationalize the country's largest oil and gas
company if the economic and political winds ever shifted, just as they did in the
early 2010s. It may well be that the Republic would not have been able to raise
$1.1 billion from YPF's NYSE-listed ADRs without these investor protections.
And its refusal to honor those protections two decades after making them cast
doubt on the security of foreign investment in the country more broadly.
Despite these factual realities, however, we are faced now with the
narrow legal question of whether the cause of action that Plaintiffs brought and
the remedy they seek in the face of the Republic's actions are permitted under
- 50 -
Argentine law. Notwithstanding the Republic's knowing and flagrant violation
of the promises it made to foreign investors, the answer to that question is no. 14
But to the extent that the Republic committed a wrong against the shareholders it
promised to protect, Argentine law did not leave YPF's minority shareholders
without any remedy -- Plaintiffs could have sought, and indeed other
shareholders did seek, to enforce the Bylaws' protections in Argentine court
through causes of action recognized under Argentine law.
2. Promissory Estoppel
The district court did not err in dismissing Petersen's promissory
estoppel claim against the Republic under Rule 12(b)(6). 15 This claim also fails as
a matter of Argentine law. Promissory estoppel is not "an autonomous source of
14
As the dissent notes, the district court has presided over these difficult and
lengthy cases for over a decade. See Dissent at 3-4. And we agree with the dissent's
observation that, in the process of adjudication, the district court has engaged deeply
with complex questions of Argentine law that are now the subject of our review. See id.
Nonetheless, given our ability to "find and apply foreign law" in the first instance,
Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998), our conclusion stands, especially as
we are doing so on substantially the same factual record as was before the district court.
Cf. Bugliotti v. Republic of Argentina, 952 F.3d 410, 414 (2d Cir. 2020) ("[C]onsiderations of
judicial economy will occasionally lead us to remand rather than review a foreign legal
question with which the district court did not, or did not fully, engage.").
15
Eton Park brought its suit after the district court had dismissed Petersen's
promissory estoppel claims against Argentina and YPF, and did not assert separate
estoppel claims against either Defendant.
- 51 -
an obligation" separate from a breach of contract claim, and is otherwise
precluded by the existence of a contractual relationship between the parties. Sp.
App'x at 46 (quoting Joint App'x at 250, 338). Petersen argues that if we conclude
that the Bylaws did not create a contractually binding obligation on the part of
the Republic, then promissory estoppel should provide an "alternative basis" for
liability. Plaintiffs' Br. at 90. This argument, however, conflates our holding that
the Bylaws do not create a bilateral obligation enforceable through a
contract-based damages suit with a finding that the Bylaws do not constitute any
sort of written contractual relationship between the parties, which, if true, may
have permitted an estoppel claim. It also elides the fact that Plaintiffs still have
not identified any "obligation" on the part of the Republic separate from the
Bylaws provisions on which they premise their failed breach of contract claim,
thus failing to plausibly plead an independent claim for promissory estoppel
under Argentine law. 16
16 The Second Circuit case to which Plaintiffs cite that allows estoppel claims as an
alternative to breach claims is irrelevant, because Plaintiffs' claims are not governed by
New York law. See Plaintiffs' Br. at 90 (citing Goldberg v. Pace Univ., 88 F.4th 204, 214-15
(2d Cir. 2023)).
- 52 -
D. Plaintiffs' Claims Against YPF
We conclude by briefly discussing Plaintiffs' breach of contract and
promissory estoppel claims against YPF that were dismissed by the district court
at earlier stages of this litigation.
The district court did not err in granting summary judgment for YPF
on Plaintiffs' breach of contract claims. Looking to the language of §§ 7(d)-(f),
7(h), and 28 as understood "according to general usage," we do not find any
affirmative obligation on the part of YPF to enforce the tender offer requirements
or enforce sanctions against the Republic for failing to conduct a tender. Cód.
Com. art. 217 (Sp. App'x at 210). 17 Section 7(d) states that if the terms of
§§ 7(e)-(f) are not complied with, "it shall be forbidden to acquire shares . . . if, as
a result of such acquisition, the purchaser becomes [a controlling shareholder]."
Joint App'x at 651 § 7(d). This only places limitations on the purchasing
shareholder, and does not create an obligation on the part of YPF. Section 7(e)
states that "the bidder" wishing to conduct a control acquisition must "(i) [o]btain
17
For the same reasons as noted above with regard to the claims against the
Republic, this conclusion is not inconsistent with Petersen II, which only described the
operation of the Bylaws as relevant to determining whether Defendant's actions fell
within the FSIA's commercial activity exception, see Petersen II, 895 F.3d at 210, not
whether those actions would create contractual liability for YPF under Argentine law.
- 53 -
the prior consent of [certain] class A shareholders" and "(ii) [a]rrange a takeover
bid for all of the shares . . . ." Id. at 652 § 7(e). Again, this imposes obligations on
the bidder, not on YPF. Section 7(f) sets out the required procedure for the
tender offer, in which the only requirement of YPF is that "the Corporation shall
send by mail to each shareholder . . . a copy of the notice delivered to the
Corporation," id. at 653 § 7(f)(iii), which YPF correctly characterizes as a "narrow
administrative task." YPF Br. at 29. Section 7(h) states that shares acquired in
breach of the Bylaws "shall not grant any right to vote or collect dividends or
other distributions." Joint App'x at 657 § 7(h). By its plain language and in
context, this provision strips the rights of acquired shares, and does not create an
enforcement prerogative on the part of YPF. And finally, § 28, which extends the
tender offer requirements to the Republic, again imposes no obligations on YPF.
Id. at 674 § 28(A).
We are not persuaded by Plaintiffs' arguments to the contrary. For
example, the fact that YPF or its Board could not enforce the Bylaws does not
mean that no one can. If anything, the remedial scheme set out by the GCL
suggests that this ability lies in the hands of YPF's minority shareholders -- some
of whom did seek to compel a tender offer by challenging the Republic's exercise
- 54 -
of the expropriated shares at a shareholder's meeting, then bringing action in
Argentine court. And the fact that YPF assured investors of the tender offer
requirement in its IPO Prospectus is inapposite to the question of whether YPF
had an obligation to enforce that requirement.
Even if the Bylaws did create a contractual obligation on the part of
YPF, Plaintiffs' breach of contract claims against YPF have the same fundamental
defect as their claims against the Republic -- these claims are not cognizable
under Argentine law. Just as Argentine law likely does not authorize damages
suits between shareholders for a breach of corporate bylaws, it also likely does
not recognize suits brought by a shareholder against a corporation. That makes
good sense, because allowing individual shareholders to sue a corporation for
damages would "allow shareholders to transform themselves into standard
creditors of the corporation" and deplete corporate assets at the expense of other
shareholders. Joint App'x at 3451.
Finally, Petersen's promissory estoppel claims against YPF, which
were dismissed at the motion to dismiss stage, fail for the same reasons as
discussed above with the regard to the estoppel claims brought against the
Republic. See supra Part II.C.2.
- 55 -
CONCLUSION
For the foregoing reasons, we REVERSE the district court's entry of
judgment for Plaintiffs on their breach of contract claims against the Republic,
AFFIRM the district court's dismissal of the promissory estoppel claims against
the Republic and YPF, AFFIRM the district court's grant of judgment for YPF,
and REMAND for further proceedings consistent with this opinion.
- 56 -
23-7370 (L); 23-7376 (L)
Petersen Energía Inversora et al. v. Argentine Republic, YPF S.A.;
Eton Park Cap. Mgmt. et al. v. Argentine Republic, YPF S.A.
JOSÉ A. CABRANES, Circuit Judge:
I respectfully dissent.
The majority decision rests on an analysis of the corporate and
expropriation law of the Republic of Argentina. Its opinion is a careful
and respectful description of that complex body of law.
At this stage of the long-lived litigation the parties agree that
the applicable substantive law is that of Argentina.
Under Fed. R. Civ. P. 44.1, “[a] court’s determination [of foreign
law] must be treated as a ruling on a question of law.” It is thus not
surprising that, as Judge Diane Wood, then of the Seventh Circuit,
reminded us, “[r]easoning through foreign law is ‘notoriously
difficult, because the U.S. reader is likely to miss nuances in the
foreign law, to fail to appreciate the way in which one branch of the
other country’s law interacts with another, or to assume erroneously
that the foreign law mirrors U.S. law when it does not.’” 1
As the majority opinion succinctly and accurately reports,
“[t]he crux of this ten-year litigation is Plaintiffs’ breach of contract
claims against the Republic for damages arising from the Republic’s
failure to conduct a tender offer upon expropriation.” 2
For more than ten years, a distinguished judge of the Southern
District has presided with meticulous care over the “factual realities”
1
Menghistab v. Garland, 37 F. 4th 1240, 1246 (7th Cir. 2022).
2 Op. at 35 (emphasis added).
that included complex arrangements designed to assure “private
investors – many of whom were based in the United States – that they
would be protected in the event the Republic decided to renationalize
the country’s largest oil and gas company if the economic and
political winds ever shifted, just as they did in the early 2010s.” 3
The majority concludes that despite these “factual realities,” we
are required to limit our review of ten years of painstaking
consideration of the law and facts on the ground by a demanding
district judge to “the narrow legal question of whether the cause of
action and remedy that Plaintiffs seek in the face of the Republic’s
actions is permitted under Argentine law.” 4
Lest we forget the “factual realities” that the majority opinion
would have us minimize if not forget, I recall for the record some of
the “factual realities” that make it impossible for me to join an
otherwise outstanding majority opinion.
Over the course of more than ten years, the District Court
heard about:
1. Argentina’s forcible expulsion of YPF’s board members
from their premises; 5
3 Id. at 50.
4 Id. at 50–51.
5
Tr. of Trial at 296–97 (Aug. 15, 2023), Petersen Energia Inversora, S.A.U. v.
Argentine Republic, No. 15 Civ. 2739, Dkt. No. 489.
2
2. “A well-founded fear of prosecution of [plaintiffs]’
counsel if the instant action were brought in Argentina”; 6
3. Argentine law as expounded by experts of all parties; 7
4. Argentina’s own acknowledgement, calculation, and
repudiation of its liabilities. 8
Based on its close familiarity with the facts and law of the case,
the District Court rejected Argentina’s arguments as to breach of
contract. Specifically, it held that the Republic had bilateral
obligations towards the plaintiffs, enforceable under the Argentina
Civil Code, remediable by damages, and not precluded by the
General Corporations Law. 9 The District Court also found that
Argentina’s General Expropriation Law does not bar plaintiffs’
claims. In reaching its conclusions, the District Court relied on, and
cited, various expert reports. 10
6
Petersen Energia Inversora, S.A.U. v. Argentine Republic, 2016 WL 4735367,
at *12 (S.D.N.Y. Sept. 9, 2016), aff’d in part, appeal dismissed in part sub nom.
Petersen Energia Inversora S.A.U. v. Argentine Republic & YPF S.A., 895 F.3d
194 (2d Cir. 2018).
7 See generally Petersen Energia Inversora, S.A.U. v. Argentine Republic, 2023
WL 2746022 (S.D.N.Y. Mar. 31, 2023), on reconsideration in part, 2023 WL
3625784 (S.D.N.Y. May 24, 2023).
8 Petersen Energia Inversora, S.A.U. et al v. Argentine Republic et al., No. 15-
cv-02739-LAP, Dkt. No. 371-06.
9 Id. at *12–13.
10 See, e.g., id. at *12–13, *15.
3
Although there is no doubt that “we undoubtedly have
discretion to decide [a] question of Argentine law in the first instance
and would not be limited to the record created in the district court
were we to do so,” 11 “we have recognized that determinations of
another sovereign’s law ‘frequently call for fact-like procedures that
a district court is better situated to implement.” 12 This is especially
true when it comes to a civil-law jurisdiction like Argentina, whose
legal system is “much different.” 13
We owe special consideration and respect to a District Court
that has closely evaluated every aspect of the facts and, importantly,
the governing law of Argentina.
On this basis, I would affirm the judgment of the District Court.
11
Bugliotti v. Republic of Argentina, 952 F.3d 410, 413 (2d Cir. 2020).
12 Petroleos de Venezuela S.A. v. MUFG Union Bank, 106 F.4th 263, 269 (2d
Cir. 2024).
13 See Curley v. AMR Corp., 153 F.3d 5, 14 (2d Cir. 1998).
4