Argentina Opposes Use of U.S. Litigation Evidence in Potential YPF Arbitration at ICSID
TL;DR
- Argentina has formally opposed allowing evidence from a U.S. court case to be used in a potential ICSID arbitration regarding YPF's nationalization.
- The evidence in question was gathered during litigation in New York involving Burford Capital and Eton Park against Argentina.
- Burford has notified Argentina of its intention to file an arbitration claim at ICSID under the Spain-Argentina BIT.
- Argentina argues the U.S. court's protective order explicitly bars the use of this evidence in other legal or arbitral proceedings.
Overview
Argentina has submitted a formal objection in a U.S. court, seeking to prevent claimants Burford Capital and Eton Park from using evidence acquired during New York litigation in an anticipated arbitration at the International Centre for Settlement of Investment Disputes (ICSID). The dispute centers on Argentina's 2012 nationalization of YPF and the related compensation claims by Burford and Eton Park.
What Happened
On April 26, 2026, it was reported that Argentina filed a letter with the U.S. federal court expressing its opposition to modifying a protective order covering materials produced during the litigation over the YPF nationalization.
Burford Capital has signaled its intention to initiate arbitration against Argentina at ICSID, citing the bilateral investment treaty between Argentina and Spain. The arbitration would address alleged uncompensated expropriation and related investor grievances following Argentina's nationalization of a 51% stake in YPF in 2012.
The protective order, in force for nearly six years, explicitly restricts the use of all discovery materials to the New York proceedings, prohibiting their use in any other legal or arbitral processes. Argentina's submission emphasizes the unequivocal language of the order in opposing the claimants' request to alter it for use in ICSID proceedings.
The background litigation resulted from Burford and Eton Park acquiring claims formerly held by Petersen group entities in Spain, which owned a significant minority in YPF at the time of nationalization. After a recent U.S. court of appeals decision partially reversed an earlier $16.1 billion judgment against Argentina-with potential total liabilities including interest nearing $18 billion-Burford and Eton Park have a limited window to seek further review before potentially moving forward at ICSID.
Context
The dispute arises from Argentina's 2012 nationalization of YPF, which was previously majority-owned by Repsol. Burford and Eton Park are pursuing compensation for the alleged failure by Argentina to make a required public offer for the remaining shares, based on their acquired rights from former YPF shareholders.
Burford's ability to initiate ICSID proceedings is grounded in the Spain-Argentina bilateral investment treaty due to the corporate origins of the original claimants in Spain. The contested evidence was originally produced under a confidentiality order solely for the New York litigation.
Why It Matters
- The dispute highlights the intersection of U.S. discovery orders and the use of such materials in international arbitration.
- Argentina's opposition may influence how parallel or sequential proceedings draw on judicial evidence, particularly between domestic courts and arbitration under investment treaties.
- This dispute has significant financial implications for Argentina and may affect broader strategies in investment arbitrations involving multiple jurisdictions.