Is Argentina allowed to seize YPF?

Argentina's expropriation of its former state oil company attracted international condemnation - but

Argentina's expropriation of 51 per cent of the shares of YPF, the formerly state-owned oil company, has generated almost universal criticism.  Indeed, Antonio Brufau, Repsol’s executive chairman, has labelled Argentina’s action as “manifestly illegal and gravely discriminatory”, and has emphasised Repsol’s intention to use international arbitration to gain proper compensation if it is not freely offered by Argentina. Such language is undoubtedly useful for Repsol as a means of generating support for its position, but an examination of precisely what international law says about expropriation is illuminating as to the potential losses that Repsol now faces.

Whether or not Argentina’s action violates international law is an important question for Repsol, as the standard of compensation differs for legal and illegal expropriations. Consequently, if Repsol can establish that Argentina has violated international law it potentially stands to gain considerably greater compensation than if the law has been observed.

It is important to note, however, that expropriations are not inherently illegal under international law. The ability to take property from private entities is simply one of the benefits of being a state. The important question, then, is whether Argentina has adhered to the applicable standards in performing the expropriation. Currently available information suggests that it has.

Firstly, an expropriation must be undertaken for a public purpose. Argentina’s expressed goal of regaining national energy self-sufficiency and ensuring the viability of an important industry clearly satisfies this requirement, and there is as yet no indication of any alternative motive.

Secondly, the expropriation must be non-discriminatory. If, for example, the Argentine government had taken Repsol’s shares in YPF and redistributed them to a private Argentine entity, Repsol may have been able to argue discrimination. Such an action would have indicated that Repsol’s foreign nationality was a motivating factor in the expropriation. However, the expropriated shares are being retained in government hands, YPF’s remaining shareholders include other foreign entities, and Argentina has offered plausible arguments as to why YPF’s performance was insufficient for the needs of the country. Absent new evidence, then, Repsol will have difficulty substantiating its allegation that the expropriation is "discriminatory".

Thirdly, the expropriation must be performed in accordance with due process of law. Argentina is undertaking the expropriation through the passage of legislation and there has been no accusation that Repsol will be deprived of any legal rights it has to challenge the expropriation in Argentine courts. Consequently, there is no current evidence that Argentina is violating this requirement.

Finally, an appropriate level of compensation must be paid for any expropriated property. This is the point on which the greatest uncertainty remains, as the Argentine government has not yet stated how much compensation it intends to pay to Repsol. Moreover, there are clear political pressures within Argentina to minimise the amount of compensation that Repsol receives. If Argentina bows to these pressures, and offers Repsol an amount indefensible as an estimate of the market value of the company, it will likely be found to have acted illegally. However, the efforts that have so far been made by Argentina’s representatives to link lowered compensation payments to such things as potential hidden debts and environmental liabilities indicates that Argentina is well aware of this issue, and is unlikely to propose an amount of compensation that is not at least facially plausible as a market valuation of the expropriated shares.

Of course, while it is important for Argentina that its actions be found to be legal, simple legality will not protect it from all the potential negative consequences of such a prominent expropriation. Perceptions matter in attracting foreign investment, and Argentina will need significant foreign investment if it is to achieve its goal of a return to energy self-sufficiency. For this reason, as attractive as it may be to the Argentine government to minimise the compensation it offers to Repsol, this is unlikely to be in Argentina’s long-term best interest. A single act of expropriation is unlikely to deter foreign investors, even when it is as large as Argentina’s expropriation of YPF. However, a perception that the Argentine government will not treat foreign investors fairly will deter them, and any indication that the government is more interested in minimizing the compensation it pays to Repsol than in fixing a fair price for Repsol’s shares in YPF will have precisely that effect. In the long term, such a valuation may well cost Argentina more money than it saves.

The second part of this post can now be found here.

View at sunset of the port next to the gas plant of YPF in Buenos Aires. Photograph: Getty Images

Tony Cole is a senior lecturer at Brunel Law School

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Want an independent-minded MP? Vote for a career politician

The brutally ambitious are not content to fall in with the crowd. 

“Never having had a ‘real’ job outside of politics”: this is what the majority of respondents told a YouGov poll in 2014 when asked the most undesirable characteristic of the British politician. The result is hardly surprising. Type the words “career politician” into your search engine or raise the topic at a dinner party, and quickly you will be presented with a familiar list of grievances.

One of the fundamental criticisms is that career politicians in parliament are elitists concerned only with furthering their own interests. Their pronounced and self-serving ambition for climbing the ministerial ladder is said to turn them into submissive party-machines, sycophants or yes men and women, leading them to vote loyally with their party in every parliamentary division. But do we actually have evidence for this?

A new in-depth analysis, to be published later this month in the academic journal, Legislative Studies Quarterly, presents a forceful challenge to this conventional wisdom. In fact, I find that career politician MPs in the UK are more likely to rebel against their party than their non-career politician peers. Why?

My study was motivated by the observation that the existing impression of the party loyalty of career politicians is based mostly on anecdotal evidence and speculation. Moreover, a look through the relevant journalistic work, as well as the sparse extant academic literature, reveals that the two main hypotheses on the topic make starkly contradictory claims. By far the most popular — but largely unverified — view is that their exclusively professional reliance on politics renders career politicians more brutally ambitious for frontbench office, which in turn makes them especially subservient to the party leadership.

The opposing, but lesser known expectation is that while career politicians may be particularly eager to reach the frontbenches, “many of them are also much too proud and wilful to be content to serve as mere lobby fodder”, as the late Anthony King, one of the shrewdest analysts of British politics, observed nearly thirty years ago on the basis of more qualitative evidence.

Faced with these opposing but equally plausible prognoses, I assembled biographical data for all the MPs of the three big parties between 2005-15 (more than 850) and analysed all parliamentary votes during this period. I followed the debate’s prevalent view that an exclusive focus on politics (e.g. as a special adviser or an MP’s assistant) or a closely-related field (e.g. full-time trade union official or interest group worker) marks an MP as a careerist. In line with previous estimations, just under 20 per cent of MPs were identified as career politicians. The extensive statistical analysis accounted for additional factors that may influence party loyalty, and largely ruled out systematic differences in ideology between career and non-career politicians, as well as party or term-specific differences as drivers of the effects.

As noted above, I find strong evidence that career politician backbenchers are more likely to rebel. The strength of this effect is considerable. For example, amongst government backbenchers who have never held a ministerial post, a non-career politician is estimated to rebel in only about 20 votes per parliament. By contrast, a career politician dissents more than twice as often — a substantial difference considering the high party unity in Westminster.

This finding reveals a striking paradox between the predominantly negative opinion of career politicians on the one hand, and the electorate's growing demand for more independent-minded MPs on the other. In fact career politicians are the ones who perform best in delivering on this demand. Similarly, the results imply that the oft-cited career-related dependency of career politicians on the party can be overridden (or, at the very least, complemented) by their self-image as active and independent-minded participants in the legislative process. This should attenuate the prevalent concern that a rise in career politicians leads to a weakening of parliament’s role as a scrutinizing body.

Finally, the findings challenge the pervasive argument that a lack of experience in the real world disqualifies an MP from contributing meaningfully to the legislative process. Instead, it appears that a pre-parliamentary focus on politics can, under certain circumstances, boost an MP's normatively desirable willingness to challenge the party and the executive.

Raphael Heuwieser is researching political party loyalty at the University of Oxford.