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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Is "successful" sperm really the measure of a man's masculinity?

An advertising campaign challenging men to "prove your worth" is being proposed to increase dwindling numbers of sperm donors – will the myth that only "real" men have potent sperm ever die?

Are you a superman? By which I mean, do you have the kind of sperm that would be accepted by the UK Sperm Bank, currently stuck with only nine donors on the books? Laura Witjens, chief executive, is currently launching a drive to recruit more donors. Her secret weapon? An appeal to male vanity.

Speaking to the Guardian, Witjens claims that if she advertised saying, “Men, prove your worth, show me how good you are”, it would be a route to gaining “hundreds of donors”. The implication is that beta males need not apply; this is for “real” men only. And what better way to demonstrate one’s manly credentials than through the spreading of one’s super-strength, 100 per cent proof, ultra-potent seed?

The proposed campaign approach serves to remind us of two things: first, the male ego is ridiculous, and second, reproductive ability is still treated as an indicator of whether or not one is a “successful” representative of one’s sex. However much we claim that biology is no longer destiny, certain expectations linger. “Real men” have high-quality sperm and want to see it distributed as widely as possible. “Real women,” on the other hand, only end up unable to reproduce if they have “left it too late” (that is, spent too much time in what is still seen as the world of men).

That fertility is primarily linked to luck rather than sexist morality tales is something we’d rather not admit. After all, far too many cultural edifices have been built around the idea that the opposite is true.

For something that resembles runny PVA glue, sperm has done well for itself. Throughout history, men have been obsessed with their precious seed and what it means for their status as the dominant sex. Since it is women who get pregnant – women who perform the actual task of gestating and birthing new human beings – there has always been a need to inflate the importance of semen, lest men should be sidelined completely. Whereas for women reproduction is a continuous process, for men it is more disjointed and conceptual. Hence it is important to have something to rely on. In sperm we trust.  

Otherwise can a man ever be sure – really, really sure – that a baby is his? For biological mothers, maternity is never in question. For biological fathers, paternity needs to be established. There are various ways of achieving this: heterosexual marriage, compulsory monogamy, the policing of women’s sexual choices, the withholding of material resources from women in return for sexual exclusivity, the threat of an appearance on Jeremy Kyle.

And then there are the various myths regarding how magical and special your own sperm is. It had to be you, didn’t it? He shoots, he scores. How else would the phrase “Who’s the Daddy?” have come into its current usage? The “skill” of impregnation is linked to manliness. If you’re a real man, the implication is, then you’ve nothing to fear.

The “superman” theme proposed by Witjens harks back to the various ways in which men have sought to position themselves and their sperm right at the centre of human reproduction, believing, for instance, that it already contained human beings in miniature, or that women merely provided the passive matter that would bring their active principle to life.

The biology I learned at school still played on the narrative of the hardy, valiant sperm battling against all odds to reach the passive, if somewhat capricious, egg. Sex education met gender indoctrination; it even seemed to be implied that the egg, in closing off entry to all other sperm once the “victor” had penetrated her boundaries, was being a bit of a tease (she’d already set off down the fallopian tube, what did she expect?). Pregnancy itself, we were led to believe, could never match the creativity, risk and drama of that one initial shag.

To respond to such myth-making with “but it’s only sperm and actually it could be anyone’s” seems positively mean. Women are supposed to worship it. Our effluvia – vaginal discharge, menstrual blood, breast milk – might be seen as disgusting, but when it comes to a man’s cum, it’s considered rude not to want to swallow it. People who respond with outrage when a woman suckles her baby in a crowded café think nothing of the idea that a real woman should want to gulp down semen with gusto. Patriarchal semiotics tell us that what comes out of men is life-giving and hygienic; women, on the other hand – popping out babies and sustenance – merely leak. It takes a brave woman to say, “hang on, is semen really all that?”

In the UK at least, it would seem that it isn’t. According to Witjens, getting one’s sperm approved for the UK Sperm Bank is exceptionally difficult because of how strong the product needs to be to survive the freezing and thawing process: “If 100 guys enquire, ten will come through for screenings and maybe one becomes a donor. It takes hundreds of guys.” Meaning most men don’t actually measure up to “superman” standards (without even considering what this approach says to men with a low sperm count, of whom it is suggested that the manhood test has been well and truly failed).

Her advertising strategy may be one that works. But it would be nice if, in a society that increasingly favours a politics of acquisition over one of care, we could be a little less focused on the potency of the mighty seed, looking instead at this particular form of donation as part of a broader process of creating and caring for others. Perhaps appeals to male vanity just work better than appeals to altruism. Even so, it’s a pity that it has to be so.

The aftermath of sperm donation can be complicated. Once one gets beyond the cash and the ego trips, the process can lead to real children with a real need to know the identity of the donor. Whereas in the past social convention allowed men to define ownership of children on their terms, nowadays globalisation and reproductive technology have led to a splintering of roles. Is it care or biology that makes a parent? What is it that shapes an identity and makes a person?

For most of us, the humane position is that nurture – the act of being there – must trump any biological contribution. To think otherwise is unfair on those who devote years of their lives to the raising of children. But for many donor-conceived adults, the donor is still needed to complete the picture of who one really is. And he will not be a superman. He will be a person who gave something small that nevertheless contributed to the creation of something miraculous: a life. And shouldn’t that be enough?

Glosswitch is a feminist mother of two who works in publishing.