Peterson Energia Inversora & Ors v The Argentine Republic

Foreign-law expert evidence is admissible where it is reasonably required or would assist the court on a jurisdictional issue. Its admissibility depends on context and relevance, not on whether it addresses matters ultimately determined by the English court. An expert may explain the foreign legal framework, its interaction with private rights, and how a foreign court would likely treat the relevant facts. The expert must not impose personal views about what the foreign law ought to be. A jurisdiction challenge should ordinarily be heard together where the issues are interconnected and a split hearing would duplicate evidence, time and costs. The possibility that some issues may be dispositive does not, by itself, justify bifurcation.

The claimants sought recognition and enforcement in England of a 2023 judgment of the Southern District of New York awarding substantial damages against Argentina in connection with the expropriation of shares in YPF. Argentina challenged the English court’s jurisdiction, relying in part on public policy, the foreign act of state doctrine and state immunity.

Two applications were before the court. Argentina sought permission under CPR Part 35 to adduce expert evidence of Argentine law. The claimants sought to bifurcate the jurisdiction hearing, leaving the parts of the public policy and state immunity issues requiring foreign-law evidence for a later hearing. The central questions were whether the proposed expert evidence was relevant and admissible, and whether the jurisdiction challenge should be split.

1. Expert evidence. The application to adduce Argentine-law evidence was granted, subject to a short opportunity for the expert to identify any further legal principles on which he relied. Foreign-law evidence may be admissible where it supplies relevant legal context, explains the interaction between public and private law, identifies the effect of foreign legislation on private rights, or assists the English court in assessing how a foreign court would treat the relevant circumstances.
2. The court rejected the objection that the expert report impermissibly addressed the ultimate questions. The ultimate English-law questions were the characterisation of the relevant acts and whether they were sovereign or commercial. The expert could nevertheless explain, as a matter of Argentine law, how private rights were affected by the expropriation. The expert could not substitute personal views for the foreign law.
3. Questions concerning the general framework of Argentine public and private law, the legal basis and location of the expropriation steps, whether the expropriation and non-compensation formed one legal endeavour, the existence and effect of private rights, available shareholder recourse, and the place of contractual performance were sufficiently articulated and relevant. The evidence was reasonably required or, alternatively, would materially assist the court. There were no countervailing case-management objections under the British Airways approach.
4. Bifurcation. The bifurcation application was refused. Although other jurisdictional issues might dispose of the enforcement claim, that was a common feature of jurisdiction challenges and did not justify a split hearing. The preliminary issue-estoppel and transposition arguments could not sensibly be decided without the underlying factual and legal context. A second hearing would therefore duplicate preparation and costs and would be disproportionate.
5. The claimants were ordered to pay Argentina’s costs of resisting bifurcation on the standard basis, subject to detailed assessment if not agreed. Payment was stayed until determination of the jurisdiction application, with permission to apply for an extension if that application did not finally dispose of the enforcement claim.