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Expropriation Law, which became effective on May 7, 2012. (Tr. 130:5-10; 118:7-10.) In any

event, the Republic's Answer expressly stated that it was "Law 26,741" that "authorized the

commencement of the expropriation process and permitted" the temporary occupation of Repsol's

PF shares until the expropriation process was completed in May 2014 (ECF No. 98 at 22). See

H. Daya Int'l, Co. v. Do Denim LLC, 2022 WL 974382, at *11 (S.D.N.Y. Mar. 31, 2022)

("Judicial admissions must be clear and unambiguous admissions] of fact.") (citation omitted).

II.

THE COURT SHOULD REJECT PLAINTIFFS FLAWED APPLICATION OF THE TENDER OFFER FORMULA.

While the Court should find that the Republic did not exercise control over Repsol's YPF

shares before May 7, 2012, the economic importance of this issue is magnified by Plaintiffs'

misapplication of the tender offer formula. Plaintiffs contend that they are entitled to $3.4 billion

more in damages if April 16, 2012, as opposed to May 7, 2012, is the trigger date. This massive difference is based upon Plaintiffs' incorrect application of the Bylaws' tender offer formula.

As demonstrated at trial, Plaintiffs' damages expert, Prof. Fischel, ignored available

earnings data in computing tender offer prices. Those prices are set as of a "notice date" 40

business days before the tender offer date. (SJ Op. at 55.) Based on the Court's summary judgment

ruling, under the Bylaws* "Formula D," an acquirer must calculate the tender offer price using the

highest daily price/earnings ("P/E") ratio at any point in the two-year period prior to the notice

There is no merit to Plaintiffs' theory that the April 16, 2012 drop in YPF's share price meant that the Republic controlled YPF's shares as of that date. As Prof. Harris explained, markets react to news, which here included the proposed YPF Expropriation Bill. (Tr. 378:3-379:3.) Likewise, Plaintiffs' assertion that Argentina's experts "never opined in any of their prior reports that there was any significant difference between April 16th and [May] 7" is false. (Tr. 19:14-18.) They did just that. (E.g. DX-29 99 43-44.) And Fischel's "precommitment" theory (Tr. 178:11-179:20) (that the Bylaws were to intended to "discourage" future government action), aside from lacking foundation (Tr. 375:2-23 (Harris)), just begs the question of when the Republic first controlled the shares.

The distinction between the Intervenor's powers under the Decree (those of the YPF Board,

initially for 30 days, and then for another 30 days following the May 11, 2012 extension (DX-22t))

and the powers that the Argentine Congress granted in the YPF Expropriation Law reflect the

settled distinction under Argentine law between management and shareholder rights. As Prof.

Manóvil explained (without contradiction), the Board enjoys the power to "administrate

..meaning to manage the business and the affairs of the company." (Tr. 262:9-13.) By contrast,

the "rights of shareholders" include "voting the shares at shareholders' meetings, selling the shares

[and] receiving dividends." (Tr. 260:15-21. The Republic "by no means" acquired control of

Repsol's YPF shares before May 7, 2012; it could not and did not exercise "any of (those] rights."

(Tr. 258:2-4; 261:21-23.) As Prof. Manóvil also testified, under settled Argentine law, neither (i)

the power to administer a company as an intervenor, nor (ji) the power to prevent the exercise of

a shareholder's right, is equivalent to control of shares. (Tr. 260:6-261:7;263:13-24; 286:8-287:2.)

Prof. Bianchi did not disagree. He conceded that, between April 16 and May 7, 2012, the Republic did not "sell any YPF shares," "vote any dividends," "elect any directors," or "remove any directors." (Tr. 109:24-110:11; see Tr. 261:12-23 (Manóvil).) Prof. Bianchi also could not explain away his prior testimony submitted when relying on a later date advanced Plaintiffs' successful effort to overcome the Republic's sovereign immunity'_ stating unequivocally that it

was Article 13 of the YPF Expropriation Law, effective on May 7, 2012, that "triggered the

obligation to carry out a tender offer." (Tr. 113:16-114:18; 115:14-116:5; 117:25-119:11; PX-81

at 6-11.) As Prof. Bianchi conceded, it was only upon the temporary occupation (May 7, 2012)

that "the Argentine state replaced Repsol in the exercise of those rights of those shares"-which,

I Plaintiffs' current theory-that the intervention triggered the tender offer runs directly counter to their basis for FSIA jurisdiction, that a "post-expropriation tender offer" would not conflict with Argentina's sovereignty. Petersen v. Argentine Republic, 895 F.3d 194, 208-209 (2d. Cir. 2018).

THE REPUBLIC DID NOT ACQUIRE OR EXERCISE CONTROL OF REPSOL'S YPF SHARES BEFORE MAY 7, 2012.

The Court has already held that the Republic's "acquisition of control of [Repsol's YPF1

shares, not its intervention in or acquisition of control of YPF." triggered the tender offer

obligation. (SJ Op. at 56 (emphasis added).) The evidence at trial conclusively established that

the Republic did not acquire or exercise control of Repsol's YPF shares before May 7, 2012.

A.

The April 16, 2012 Intervention Decree and Proposed YPF Expropriation Bill

Did Not Give the Republic Any Control Over Repsol's YPF Shares.

On April 16, 2012, the President of Argentina issued the Intervention Decree, which

granted the Intervenor the "powers conferred by YPF S.A. Bylaws to the Board of Directors and/or

the President of the company." (DX-4t.) Prof. Bianchi agreed that "by its terms, the decree did

not confer any powers on the Intervenor over Repsol's YPF shares." (Tr. 109:15-18.) Instead, as

Prof. Rafael Manóvil explained, the purpose of the intervention was to "ensure the continuity of

the company," and to "preserve[] its assets" by giving the Intervenor the management of YPF.

(Tr. 259:6-9; see Tr. 108:5-10 (Bianchi).) The Intervenor's managerial powers over YPF as a

whole did not give him "control" over Repsol's YPF shares. (DX-4t (Intervention Decree) at 6;

Tr. 258:2-15; 260:6-14; 263:16-24; 266:25-267:3 (Manóvil).)

Also on April 16, the Argentine Executive Branch proposed a bill to declare "fifty-one

percent (51%) of the equity of YPF . .. subject to expropriation," and to allow it temporarily to

"exercise all of the rights that the shares to be expropriated confer." (DX-3t at 40.) But, as Prof.

Bianchi conceded, this bill had "no legal force," was "debated" in Congress, and the government

"could not have begun the process of expropriating Repsol's YPF shares" until it passed. (Tr.

105:8-12; 106:22-107:3. The Argentine Congress considered other measures including buying

Petersen's YPF stake and could have rejected the bill or passed an alternative. (DX-80t; see Tr.

105:13-16; 106:16-20.)

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