RE: Trial Briefs5 Aug 2023 10:52
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).