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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How will Labour handle the Trident vote?

Shadow cabinet ministers have been promised a free vote and dismiss suggestions that the party should abstain. 

At some point this year MPs will vote on whether Trident should be renewed. It is politics, rather than policy, that will likely determine the timing. With Labour more divided on the nuclear question than any other, the Tories aim to inflict maximum damage on the opposition. Some want an early vote in order to wreak havoc ahead of the May elections, while others suggest waiting until autumn in the hope that the unilateralist Jeremy Corbyn may have changed party policy by then.  

Urged at PMQs by Conservative defence select committee chair Julian Lewis to "do the statesmanlike thing" and hold the vote "as soon as possible", Cameron replied: "We should have the vote when we need to have the vote and that is exactly what we will do" - a reply that does little to settle the matter. 

As I've reported before, frontbenchers have been privately assured by Corbyn that they and other Labour MPs will have a free vote on the issue. Just seven of the shadow cabinet's 31 members support unilateral disarmament, with Tom Watson, Andy Burnham, Hilary Benn and Angela Eagle among those committed to Trident renewal. But interviewed on the Today programme yesterday, after her gruelling PLP appearance, Emily Thornberry suggested that Labour may advise MPs to abstain. Noting that there was no legal requirement for the Commons to vote on the decision (and that MPs did so in 2007), she denounced the Tories for "playing games". But the possibility that Labour could ignore the vote was described to me by one shadow cabinet member as "madness". He warned that Labour would appear entirely unfit to govern if it abstained on a matter of national security. 

But with Trident renewal a fait accompli, owing to the Conservatives' majority, the real battle is to determine Labour's stance at the next election. Sources on both sides are doubtful that Corbyn will have the support required to change policy at the party conference, with the trade unions, including the pro-Trident Unite and GMB, holding 50 per cent of the vote. And Trident supporters also speak of their success against the left in constituency delegate elections. One described the Corbyn-aligned Momentum as a "clickocracy" that ultimately failed to turn out when required. 

George Eaton is political editor of the New Statesman.