On May 15, 2026, we filed an amicus curiae brief in the U.S. Court of Appeals for the Second Circuit in Petersen Energia Inversora, S.A.U. et al. v. Argentine Republic et al.
Case synopsis
The case arises from Argentina’s 2012 nationalization/expropriation of YPF S.A., an Argentine energy company whose shares were traded in part through U.S. markets. The plaintiffs, including Petersen Energia entities, sued Argentina over Argentina’s alleged failure to comply with YPF bylaws requiring a tender offer when Argentina took control of the company.
A prior Second Circuit decision had allowed the case to proceed under the Foreign Sovereign Immunities Act’s commercial-activity exception, holding that Argentina’s tender-offer obligations and alleged repudiation were commercial in nature, not sovereign acts. The district court later ruled for the plaintiffs, but the Second Circuit panel reversed on the merits, concluding that Argentine expropriation law barred the plaintiffs’ contract claims.
What our brief argues
Heartland’s amicus brief argues that the Second Circuit panel’s ruling should be reheard by the full court because it undermines free markets, investor protections, and the FSIA’s purpose. The brief’s core argument is that foreign sovereigns that raise capital in U.S. markets should not be allowed to avoid commercial obligations by later invoking sovereign or expropriation-related defenses.
We argue the panel decision as creating a back-door expansion of sovereign immunity. The court had already determined that Argentina was not immune because the relevant conduct was commercial, yet the panel’s merits ruling effectively gave Argentina the same practical benefit by denying any meaningful contractual remedy.
Additionally, we argue that the panel’s decision conflicts with prior rulings in the same litigation on forum non conveniens. We note that the district court had repeatedly refused to send the case to Argentina, in part because of concerns about whether plaintiffs could fairly litigate there, and because one plaintiff had a New York connection through YPF stock sold on the New York Stock Exchange.
Bottom line
We are asking the Second Circuit to allow our amicus brief and to grant rehearing en banc. Our position is that the panel decision threatens the reliability of U.S. capital markets by signaling that foreign governments can benefit from U.S. investment markets while avoiding ordinary commercial accountability when disputes arise.
