US States Back Funds' Supreme Court Bid to Revive YPF Judgment

Fifteen US states and territories, a senator and free-market groups have urged the Supreme Court, in outside filings called amicus briefs, to hear an appeal to revive a US$16.1 billion judgment against Argentina over YPF.

The funds behind the case, Petersen Energía and Eton Park, whose lawsuit is financed by Burford Capital, asked the Court on Sept. 30 to overturn a March appeals-court ruling that threw out the judgment. Missouri and 14 other states and territories filed an amicus brief on Oct. 30. On Nov. 2, eight more followed, from Sen. Eric Schmitt of Missouri, the Competitive Enterprise Institute, the Heartland Institute, Unleash Prosperity, a group of investment professionals, a former Virginia attorney general with a business chamber, and two law professors, all in support of the funds.

The states argue that the appeals ruling lets a foreign government avoid the Foreign Sovereign Immunities Act, the US law on when foreign states can be sued in American courts, by invoking its own law, and that this exposes their citizens to greater risk of harm from governments abroad. Like the funds’ petition, their brief asks whether courts should defer to a government’s account of its own law when it is first raised on appeal.

One brief backs Argentina: a Buenos Aires-based group, Republican Action for Argentina, filed on Oct. 20 urging the Court to refuse the petition. Argentina’s Treasury Attorney’s Office told La Nación that amicus filings are a routine stage rather than an automatic appeal, and that the US Justice Department has formally backed Argentina five times in the litigation.

At least four of the nine justices must vote to hear the case. If the Court declines, the appeals ruling stands and Argentina owes nothing on a judgment that with interest came to about US$18 billion. Analysts quoted by the paper said the justices could first ask the Solicitor General, the US government’s top courtroom lawyer, for its view, as the Court did in 2019 before refusing an earlier Argentine appeal in the same case. Argentina and YPF have until Dec. 2 to respond.