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Giustiniani v. Y.P.F. S.A.

Case number:
CAF 37747/2013/CA1-CSl
Country:
Albania
Date of decision:
10 November 2015
Court / Arbiter:
Supreme Court of Justice of Argentina ( Supreme )

Relevant law :
Decree No. 1172/03 on Access to Public Information. Also cites article IV of the American Declaration of the Rights & Duties of Man; article 13.1 on the American Convention on Human Rights; and numerous United Nations agreements and Inter-American Court judgments. ( ATI Law ) ( ATI Law )

Decision:

The company Yacimientos Petroliferos Fiscales (YPF) is obligated to publicly disclose its investment agreement with Chevron Corporation, because YPF’s operations are controlled in significant part by the Executive branch of government. YPF did not substantiate its claim that the contract should be exempt from disclosure in order to protect trade secrets.


Keywords:
Commercial confidentiality (including financial/economic interests of private parties or public authorities)
Contracts / Agreements (use of public funds, negotiations)
Private entities (including entities that perform public functions or receive public funds, entities that manage privatized assets, state owned enterprises)
Public interest (including public interest override, information of public interest)
Trade secrets (including patents, copyrights)

Case details:

Facts

Argentinian senator Ruben Hector Giustiniani asked the company Yacimientos Petroliferos Fiscales (YPF) for a copy of their Project Investment Agreement with Chevron, related to the exploitation of hydrocarbon/oil resources in Neuquen Province. The company declined, and Giustiniani brought them to court to force disclosure. The first instance court, and then the administrative appeals court, both ruled against Giustiniani before the case reached the Supreme Court.

Decision

The Supreme Court ruled in Giustiniani’s favor and ordered YPF to disclose the contract.

The court affirmed that all entities under national executive power are subject to Decree No. 1172 on Access to Public Information, as well as any private actors fulfilling a public function. The court noted that Law 26.741 established national control over YPF, assigning 51% of its holdings to the State. The same law also asserted the State’s right to influence policy over the portions it controlled, including naming members of its staff and the Board of Directors, and the State’s ability to take control of YPF if necessary to preserve and ensure its activities. The court further noted that Law 26.741 asserts self-sufficiency in the management of hydrocarbon/oil resources as a priority goal for the country, and that all related activities are important to achieving economic and social equity, job creation, and competitive economic sectors. YPF therefore by law is deemed to fulfill a public function.

The court also rejected the claim that the investment agreement should be private under the disclosure exceptions listed in Decree No. 1172, specifically “trade” or “scientific” secrets. The court found that YPF invoked this exception without justifying it in any way, providing no details to substantiate how public access to the contract would impact any of the interests protected by those exceptions. It found that if it were to grant an exception based on a vague claim, it would effectively “leave the guarantee of access to public information to the arbitrary discretion of those obligated to comply.”

The court’s judgment also refers to the American Declaration of the Rights & Duties of Man, the American Convention on Human Rights, other treaties, United Nations resolutions, and Inter-American Court judgments in order to emphasize the importance of access to public information.

The decision also dismissed the intervention from Chevron Corporation, since it does not fall under Decree No. 1172, and therefore has no impact on the public’s right to access information. Chevron had no right to intervene especially because they, “at the moment of signing the contract…knew, or at least should have known, the publicity regimen” that YPF was subject to.

Resources:

Judgment of the Court

Decree No. 1172/03 on Access to Public Information