Before ICSID arbitration formally commences, pending steps remain in the New York case. Burford and co-plaintiff Eton Park have until May 8, 2026 to request en banc review by the full Second Circuit Court of Appeals, rather than just the original three-judge panel. Following that deadline, they could petition the U.S. Supreme Court 90 days later, though legal experts consider reversal unlikely. The Supreme Court accepts approximately 100 cases annually, typically those with significant federal law implications, while a dispute centered on interpretation of Argentine law faces minimal prospects for review.
Burford’s ICSID strategy relies on the bilateral investment treaty Argentina signed with Spain in 1991, effective from 1992, which protects foreign investors without establishing time limits for filing claims. Despite the 2012 expropriation occurring 14 years ago, the fund maintains standing because it acquired litigation rights from Petersen companies, incorporated and bankrupted in Spain, for EUR 15.1 million. Argentina’s defense will likely argue the treaty should not apply because the actual investors, the Eskenazi family, never maintained genuine operational structures in Spain, challenging their protected foreign investor status.
The financial stakes for Burford extend beyond legal merits. Accepting the New York loss would require writing off approximately EUR 15.1 million in litigation rights plus legal fees, representing nearly 40 percent of the fund’s portfolio value at purchase. Burford has already sold participations in the lawsuit yielding over USD 300 million, creating pressure to demonstrate ongoing viability. The request to reuse Discovery materials specifically aims to reduce ICSID arbitration costs by avoiding duplicate document requests.
ICSID procedures require six months of settlement negotiations after filing, followed by formal arbitration lasting two and a half to three years before issuing an award, with possible delays if annulment is requested. The process remains confidential until final results are disclosed, contrasting sharply with the public New York proceedings. Argentina holds the distinction of facing the highest number of ICSID cases historically, with 65 total disputes yielding favorable outcomes for companies in 86 percent of resolved cases according to Transnational Institute data.
This article was curated and published as part of our South American energy market coverage.
