October 7, 2025
On October 2, 2025, Willkie filed a pair of amicus briefs in the U.S. Court of Appeals for the Second Circuit on behalf of the Bank Policy Institute (“BPI”) and the American Bankers Association (“ABA”). The briefs supported the Republic of Argentina, which had been ordered to open a global custody account at Bank of New York Mellon (“BNY”) using a sub-custodian in Argentina and then to transfer shares it owned of Y.P.F., S.A. (“YPF”) through that account to some its creditors in order to satisfy a judgment. The district court’s turnover order (the “Turnover Order”) was an effort to bring a conclusion to long-running litigation between Argentina and a variety of former shareholders in YPF stemming from Argentina’s expropriation of shares granting majority control of YPF (the “YPF Shares”) from 2012-14.
BPI and ABA’s amicus brief explains how affirmance of the Turnover Order would lead several undesirable consequences. First, the Turnover Order essentially operated as a command to BNY to allow Argentina to open a global custody account, in violation of decades of federal law making clear that courts cannot issue orders that bind more than the parties before them. Second, the Turnover Order is a blueprint for sidestepping New York’s separate entity rule; that rule normally requires a court to treat a branch of a bank in the United States and a branch in a foreign country as different entities, but the district court avoided that issue by ignoring the separate nature of BNY and its sub-custodian and instead concentrating only on Argentina. Third, Argentine law currently bans the removal of the YPF Shares from Argentina, but the Turnover Order nonetheless requires a bank to participate in a transaction that will remove the YPF Shares from Argentina, in violation of traditional jurisprudence on international comity. Taken together, those issues could rob banks of protections they rely upon to conduct international business—the fact that a non-party cannot be ordered by a court to do something, the separate entity rule, and respect for international comity—which could in turn lead banks to pull back from doing business in New York.
The Willkie team was led by partners Todd Cosenza and Zeh Ekono and associates John Goerlich and Emily Wilson.
BPI and ABA’s amicus brief explains how affirmance of the Turnover Order would lead several undesirable consequences. First, the Turnover Order essentially operated as a command to BNY to allow Argentina to open a global custody account, in violation of decades of federal law making clear that courts cannot issue orders that bind more than the parties before them. Second, the Turnover Order is a blueprint for sidestepping New York’s separate entity rule; that rule normally requires a court to treat a branch of a bank in the United States and a branch in a foreign country as different entities, but the district court avoided that issue by ignoring the separate nature of BNY and its sub-custodian and instead concentrating only on Argentina. Third, Argentine law currently bans the removal of the YPF Shares from Argentina, but the Turnover Order nonetheless requires a bank to participate in a transaction that will remove the YPF Shares from Argentina, in violation of traditional jurisprudence on international comity. Taken together, those issues could rob banks of protections they rely upon to conduct international business—the fact that a non-party cannot be ordered by a court to do something, the separate entity rule, and respect for international comity—which could in turn lead banks to pull back from doing business in New York.
The Willkie team was led by partners Todd Cosenza and Zeh Ekono and associates John Goerlich and Emily Wilson.
