Petersen Energia Inversora, S.A.U., et al. v. Argentine Republic, et al.

In the 1990s, Argentina privatized its stateowned oil company YPF, S.A. (“YPF”) to raise billions in capital from foreign investors on the NYSE and elsewhere. To ensure that privatization would succeed, Argentina amended YPF’s bylaws to promise investors that if Argentina ever decided to renationalize YPF, it would offer investors a compensated exit through a tender offer at a price set by a predetermined investor-protective formula. But when Argentina seized back control of a majority stake in YPF in 2012, it openly flouted its tender-offer obligations, causing petitioners billions of dollars of harm. Despite a prior panel’s unanimous holding that the district court had jurisdiction under the Foreign Sovereign Immunities Act (“FSIA”) to hear petitioners’ breach-of-contract claims, the divided Second Circuit panel below invalidated a decade’s worth of litigation, and the largest commercial judgment in U.S. history (a $16.1 billion damages award against Argentina), holding that petitioners could only enforce Argentina’s promises in Argentine court. The questions presented are:

1. Whether a foreign sovereign can circumvent federal FSIA jurisdiction by requiring that certain claims against the sovereign must be brought in the sovereign’s own courts.

2. Whether a foreign sovereign is entitled to deference when it presents a self-serving account of its own law for the first time on appeal, notwithstanding ordinary principles of waiver and forfeiture.