“Solid Practical Benefit” and “Proper Case” Reaffirmed: Irish High Court tightens Order 11 service‑out for foreign judgment enforcement absent an Irish nexus

“Solid Practical Benefit” and “Proper Case” Reaffirmed: Irish High Court tightens Order 11 service‑out for foreign judgment enforcement absent an Irish nexus

Case: Petersen Energia Inversora SAU & Ors v Argentine Republic [2025] IEHC 463 (Commercial Court)

Court: High Court of Ireland (Roberts J) — Judgment delivered 18 August 2025

Introduction

This landmark Commercial Court decision addresses when the Irish courts will permit service out of the jurisdiction to recognize and enforce a very large non‑EU foreign judgment. The plaintiffs sought to recognize and enforce a United States District Court (SDNY) judgment against the Argentine Republic arising from Argentina’s 2012 nationalisation of YPF S.A. and alleged breach of YPF by‑laws requiring a tender offer to minority shareholders.

Key background points:

  • In September 2023, the SDNY entered judgment for approximately USD 16.1 billion (plus post‑judgment interest alleged at roughly USD 2.3 million per day), allocating USD 14.385 billion to the Petersen plaintiffs and USD 1.714 billion to the Eton Park plaintiffs.
  • The SDNY judgment is under appeal to the U.S. Second Circuit (the “2023 Circuit Appeal”). A temporary stay granted by the SDNY expired in January 2024 after conditions were not met.
  • On 25 April 2024, the Irish High Court granted the plaintiffs ex parte leave under Order 11, rule 1(q) RSC to issue and serve enforcement proceedings out of the jurisdiction on the Argentine Republic. Argentina entered a conditional appearance to contest jurisdiction and brought two applications:
    • a Set‑Aside Application under O.12 r.26 RSC (and/or inherent jurisdiction), and
    • a Stay Application pending the 2023 Circuit Appeal and any further U.S. appeals.
  • Issues traversed included the Order 11 service‑out criteria (good arguable case; practical benefit; comparative cost and convenience), the “proper case” requirement in O.11 r.5, alleged material non‑disclosure at the ex parte stage, and the doctrines of sovereign immunity and act of state.

Summary of the Judgment

  • Service out set aside. The Court set aside the ex parte service‑out order. The plaintiffs did not establish a “solid practical benefit” to recognition/enforcement in Ireland where there were no relevant Irish assets, no real prospect of such assets, and the identified procedural advantages were duplicative of New York enforcement processes already underway.
  • “Proper case” re‑centred. The Court emphasised that O.11 r.5 requires a holistic assessment of propriety, fitness, and suitableness, beyond mere compliance with the three familiar limbs. Absent a bona fide expectation of asset‑based enforcement in Ireland or a unique Irish contribution to enforcement elsewhere, service out should not be granted.
  • Comparative cost and convenience clarified. Under O.11 r.2 (pre‑July 2024 version applicable on the facts), the relevant comparison is between proceedings in Ireland and the defendant’s residence (here, Argentina), not a comparison between costs and the size of the judgment.
  • Non‑disclosure argument rejected. The Court found no material non‑disclosure at the ex parte stage regarding the plaintiffs’ New York enforcement activity, applying the Irish Bambrick v Cobley standard. Even if material, discretion would not have been exercised to discharge.
  • Sovereign immunity and act of state deferred. These are questions of Irish law which may require evidence and are better determined at trial in any substantive enforcement proceedings. U.S. determinations under the FSIA are persuasive but not determinative of Irish jurisdiction.
  • Obiter on stay. If enforcement had been allowed, the Court would have imposed a limited stay after pleadings closed, pending the Second Circuit appeal, noting a reasonable prospect of at least a partial success (notably on damages conversion) and the utility of avoiding inconsistent outcomes.

Detailed Analysis

1) The Order 11 framework and the Albaniabeg triad

The Court reaffirmed the three‑part test (from Albaniabeg Ambient Sh.p.k. v Enel S.p.A. [2018] IECA 46) that a plaintiff seeking service out to enforce a foreign judgment must generally show:

  • a good arguable case for recognition and enforcement;
  • a likely practical benefit from proceedings in Ireland; and
  • compliance with Order 11, rule 2 on comparative cost and convenience.

In addition, O.11 r.5 requires that the case be a “proper one” for service out. The Court made plain that this is not a box‑ticking exercise; it imports concepts of propriety, fitness and suitableness (citing McCrea v Knight [1896] 2 IR 619 and Yukos Capital S.A.R.L. v OAO Tomskneft VNK [2014] IEHC 115).

The Court applied the version of O.11 in force in April 2024, while noting S.I. No. 362/2024 (effective 31 July 2024) which recast aspects of Order 11, notably elevating the “proper case” requirement to an explicit standalone rule. The judgment’s reasoning remains directly relevant under the amended text.

2) Precedents and how they shaped the outcome

  • Albaniabeg Ambient Sh.p.k. v Enel S.p.A. [2018] IECA 46:
    • Supplies the three‑part test and the animating principle that Irish courts “will not act in vain”.
    • Emphasises judicial resource management and refusal of service out where practical benefit is remote or speculative.
    • Here, Albaniabeg’s logic was front and centre: no Irish assets; no real prospect of assets; extensive parallel enforcement elsewhere; and the likely complexity and cost of Irish proceedings with little prospect of yield.
  • Yukos Capital S.A.R.L. v OAO Tomskneft VNK [2014] IEHC 115:
    • Reiterates that being inside O.11 r.1(q) is not an entitlement to service out; the Court must still exercise discretion under rr.2 and 5.
    • Warns that “imprimatur of a respected court” is rarely enough where parallel recognition has been or can be secured elsewhere.
    • Applied by analogy to reject mere “respectable court” imprimatur and duplicative procedural benefits in Ireland.
  • McCrea v Knight [1896] 2 IR 619:
    • “Convenience” includes fitness, propriety and suitableness, a broad evaluative lens that permeates the “proper case” inquiry.
  • Bambrick v Cobley [2006] 1 ILRM 81 and Cutler v Azur Pharma International III Ltd [2015] IEHC 355:
    • Guide the ex parte duty of candour. Materiality is assessed with common sense; not every omission requires discharge.
    • Here, the Court applied Bambrick: no material non‑disclosure in failing to spell out the minutiae of U.S. enforcement steps the Irish court would reasonably assume existed.
  • Government of Canada v Employment Appeals Tribunal [1992] 2 IR 484; McElhinney v Williams [1995] 3 IR 382; I Congreso del Partido [1983] 1 AC 244:
    • Anchor the restrictive theory of state immunity in Irish law and the “whole context” test for distinguishing sovereign from commercial acts.
    • Roberts J emphasised that Irish courts must undertake their own immunity analysis as a matter of Irish law (Article 29.3 Constitution) if enforcement proceeds.
  • Brady v Choiseul t/a Potato Services [2016] 2 IR 337:
    • Illustrates that immunity can be dispositive on a set‑aside application, but here the Court deferred immunity and act of state to the trial stage had enforcement proceeded.
  • Trafalgar Developments Ltd v Mazepin [2022] IEHC 167:
    • Adopted to the extent of deferring act of state and related non‑justiciability issues to trial unless an “unanswerable response” is shown at an early stage.
  • Tasarruf v Demirel [2007] EWCA Civ 799:
    • Confirms that benefit can be indirect or prospective; however, it was distinguished (as in Albaniabeg and Yukos) because it involved fraud/hiding assets, which created a concrete prospect of benefit. No such factor existed here.
  • Libyan Investment Authority v JP Morgan [2019] EWHC 1452 (Comm); Punjab National Bank v Srinivasan [2019] EWHC 3495 (Ch):
    • Relied on by Argentina for stricter UK approaches to non‑disclosure; the Court reaffirmed the distinct Irish approach in Bambrick and declined to import UK default rules.
  • Hulley Enterprises v Russian Federation [2025] EWCA Civ 108:
    • Not binding, but noted as endorsing the possibility of issue estoppel on immunity determinations; left open for another day.
  • Scully v Coucal [2025] IESC 20 (relied upon by plaintiffs):
    • Cited in public policy/funding debates; the Court did not need to resolve funding or public policy defences at this stage, but flagged their potential to drive plenary proceedings if enforcement were allowed.

3) The Court’s legal reasoning

a) Good arguable case

Threshold met. The SDNY judgment is final and conclusive for common law enforcement purposes notwithstanding the pending (unstayed) U.S. appeal and is for a definite sum. Possible defences (immunity, act of state, public policy, champerty) are for the enforcement court but did not defeat the “good arguable case” limb at the leave stage.

b) Practical benefit: “the Court will not act in vain”

Central to the decision. The plaintiffs identified four purported benefits. The Court rejected each on the evidence:

  • Irish discovery/examination in aid of execution: Duplicative. Plaintiffs already have and are using SDNY enforcement discovery covering worldwide assets, including Ireland, with thousands of documents produced and extensive third‑party subpoenas. No distinctive Irish advantage identified.
  • Future Irish assets may appear: Pure speculation. Uncontested evidence showed no non‑immune Argentine assets in Ireland and no near/medium‑term prospect. Merely invoking Dublin’s status as a financial centre is insufficient; Albaniabeg and Yukos label this a “forlorn hope”.
  • Irish enforcement tools (garnishee, charging orders, receivers): Useful only if assets exist or are likely; otherwise, no solid benefit.
  • “Imprimatur” and EU leverage via Brussels (recast): Insufficient here. Other Brussels (recast) states (France, Luxembourg, Cyprus) already host parallel proceedings; any judgment there would circulate EU‑wide just as an Irish one would. No evidence Ireland would outpace those forums, and the SDNY is itself a highly respected court. Multiplying imprimaturs does not create benefit.

The Court also took into account contemporaneous investor disclosures by Burford’s CEO describing the global enforcement campaign’s purpose as creating negotiation pressure rather than asset seizure. While not improper per se, this undermined the claim that Irish proceedings would produce a concrete enforcement gain.

c) Comparative cost and convenience (Order 11, rule 2)

Clarified and applied as follows:

  • The “comparison” under r.2 is between proceedings in Ireland and the defendant’s residence (Argentina), not a comparison of costs against the judgment’s size.
  • While the Court accepted Argentina is not a convenient forum for other reasons (including Argentina’s own positions about non‑recognition of the SDNY judgment), that did not salvage the application where the practical‑benefit and proper‑case requirements failed.

d) “Proper case” (Order 11, rule 5): propriety, fitness, suitableness

This was outcome‑determinative. The Court held that “proper case” is a substantive, independent requirement: the court must be satisfied that the application is aimed at bona fide enforcement in Ireland or that Ireland can uniquely assist enforcement elsewhere. On the evidence:

  • No present or realistically prospective Irish assets.
  • No unique Irish procedural help beyond what SDNY has already provided or what other parallel EU proceedings can deliver.
  • Probable lengthy, complex, costly litigation in a forum with no connection to the dispute, imposing a significant burden on judicial resources “where the court’s intervention would [not] have a real and meaningful practical impact.”

e) Duty of candour at the ex parte stage

Applying Bambrick v Cobley, the Court rejected the material non‑disclosure complaint. The plaintiffs had made general disclosure that the SDNY judgment was enforceable and that investigations into worldwide assets were underway. While the specifics of the U.S. enforcement steps (including a turnover motion) were not spelled out, the Court found:

  • It was reasonable to assume routine post‑judgment enforcement steps existed in the U.S.
  • The omissions were not material to the leave decision; even if material, the Court would exercise discretion not to discharge.

f) Sovereign Immunity and Act of State

  • Immunity: An Irish law question informed by “generally recognised principles of international law” (Article 29.3). U.S. FSIA determinations are persuasive but not determinative. The “whole context” test (I Congreso) may require Irish courts to hear expert evidence (e.g., Argentine law and political background) if enforcement proceeds.
  • Act of State: Treated as a justiciability doctrine often left to trial absent an “unanswerable response.” Not decided at this interlocutory stage.
  • The Court expressly left both issues to any trial judge in substantive enforcement proceedings, should they ever be permitted.

g) The Stay Application (obiter)

Although moot after setting aside service, the Court indicated it would have granted a limited stay if enforcement had been allowed:

  • Scope: Allow pleadings on summary judgment to close; impose a stay thereafter pending the Second Circuit decision; liberty to apply to lift if circumstances materially change.
  • Rationale: Reasonable prospects of success on at least some U.S. appeal grounds (especially the damages currency‑conversion issue that could dramatically reduce the award), comity concerns, and avoidance of inconsistent outcomes, balanced against the lack of Irish assets and ongoing enforcement elsewhere.
  • No security offered by Argentina was noted but did not, in this counterfactual, prevent a tailored stay.

Impact and Practical Significance

A. A tightened gateway for non‑EU judgment enforcement via Order 11

  • “Solid practical benefit” is applied strictly. Applicants must evidence a non‑speculative path to Irish enforcement—present assets, a credible prospect of imminent assets, or a concrete, unique Irish procedural advantage.
  • Duplicative discovery is not a benefit. If another court (here, SDNY) already compels global asset discovery, Irish replication adds nothing.
  • “Imprimatur” arguments rarely succeed where other reputable jurisdictions are already seized and Brussels (recast) circulation can be achieved through them.
  • Resource stewardship matters. The Court expressly weighed the burden on scarce judicial resources where proceedings carried little prospect of practical yield.

B. Strategic enforcement campaigns: pressure vs. asset recovery

  • The Court took into account public statements that global enforcement was aimed at “bringing Argentina to the table,” not seizures. Such admissions can undermine claims of Irish practical benefit and affect the “proper case” calculus.
  • Litigation funders should expect investor communications to be scrutinised for purpose and proportionality.

C. Non‑disclosure: Irish approach reaffirmed

  • No default rule of discharge for omissions; materiality is assessed realistically.
  • Courts will assume obvious procedural steps exist unless omission appears calculated to distort the leave decision.

D. Immunity and act of state: Irish law governs

  • Even where a foreign court has ruled on immunity under its statute (e.g., FSIA), Irish courts must apply Irish public international law principles. Issue estoppel may be argued, but was not decided.
  • Expect any Irish enforcement that passes the Order 11 gate to involve expert evidence (foreign law, political context) and potential plenary procedures.

E. Practical guidance for future Order 11 applications to enforce non‑EU judgments

Applicants should assemble targeted, non‑speculative evidence showing one or more of the following:

  • Present or imminent Irish assets susceptible to execution, supported by evidence (banking footprints, planned listings, receivables, contractual payment flows through Ireland).
  • Distinctive Irish procedural leverage not replicable elsewhere that would materially advance enforcement (for example, access to information or third parties uniquely within Irish jurisdiction).
  • A credible path to being “first to judgment” in the EU where Brussels (recast) circulation could then unlock assets across member states—and why Ireland, not another Member State already seized, is realistically that forum.
  • Concrete examples of practical payoff beyond generalized references to Dublin’s financial ecosystem.

Complex Concepts Simplified

  • Order 11 service out: Permission to serve Irish proceedings on a foreign defendant. For foreign judgment enforcement under r.1(q), the Court still scrutinises practical benefit, comparative cost/convenience, and whether it is a “proper case.”
  • Practical benefit: A real, not speculative, gain from Irish proceedings—e.g., executable Irish assets or unique Irish assistance to enforcement.
  • “Proper case” (O.11 r.5): Beyond technical criteria, the Court asks whether, in all the circumstances, it is appropriate and fair to invoke Irish jurisdiction.
  • Brussels (recast): EU regime enabling near‑automatic recognition/enforcement of judgments between Member States. A judgment in any Member State circulates EU‑wide; multiplying EU recognitions brings no extra advantage.
  • Sovereign immunity: Under Irish law and general international law, foreign states are immune from suit in respect of sovereign (jure imperii) acts, with exceptions for commercial activities. Irish courts must apply their own test.
  • Act of state: A judicial restraint principle where courts refrain from questioning the validity of foreign sovereign acts within that state’s territory, often assessed at trial.
  • Equitable execution/garnishee/charging orders: Enforcement mechanisms allowing a creditor to reach assets or debts owed to a judgment debtor, but they presuppose assets or receivables within the jurisdiction.
  • Ex parte duty of candour: Applicants must fairly disclose material facts when the other side is absent. In Ireland, discharge is discretionary and turns on materiality assessed sensibly.

Conclusion

Petersen Energia v Argentine Republic is a significant restatement—and tightening—of the Irish gateway for enforcing non‑EU judgments under Order 11 where Ireland has no tangible connection to the dispute or its assets. The decision highlights four durable messages:

  • “Solid practical benefit” is the lodestar. Without present or credibly imminent Irish assets or a unique Irish enforcement advantage, service out will be refused. The courts will not act in vain.
  • “Proper case” has real bite. The propriety/fitness inquiry filters out forum multiplication aimed at pressure rather than recoveries, especially where parallel efforts exist elsewhere.
  • Duplicative procedural benefits and “imprimatur” arguments will rarely suffice, particularly when multiple EU and other reputable forums are already seized and can deliver equivalent (or speedier) outcomes.
  • Immunity and act of state are Irish law questions for the trial judge if enforcement proceeds; foreign rulings are persuasive, not preclusive.

While the Court rejected the service‑out application, it also signalled, obiter, a pragmatic approach to stays where enforcement is allowed but foreign appeals with realistic prospects are pending: a limited, tailored stay to avoid inconsistent outcomes while keeping cases “trial‑ready.”

Given the unprecedented scale of the SDNY judgment, the ruling underscores that size alone does not relax Irish gatekeeping. For judgment creditors, the path to Irish recognition now clearly runs through evidence of a concrete Irish nexus or a unique Irish lever—mere possibility and prestige will not do.

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