The Hanjin Shipping Company filed for bankruptcy in South Korea on Aug. 31, and sought recognition of that bankruptcy in the United States under Chapter 15 of the bankruptcy code, which governs such matters. In the meantime, there has been apparent chaos as ships have been milling about off shore, stranding cargo and crew and even a filmmaker in a kind of insolvency limbo, the International New York Times DealBook blog reported. Perhaps what is most surprising about this entire event is the apparent lack of planning that went into this bankruptcy case. It certainly does not reflect well on the company’s board, which should have gotten bankruptcy professionals involved early to...
Chapter 15 Database of U.S. Cross-border Cases
Chapter 15 is a new chapter added to the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. It is the U.S. domestic adoption of the Model Law on Cross-Border Insolvency promulgated by the United Nations Commission on International Trade Law ("UNCITRAL") in 1997, and it replaces section 304 of the Bankruptcy Code. Because of the UNCITRAL source for chapter 15, the U.S. interpretation must be coordinated with the interpretation given by other countries that have adopted it as internal law to promote a uniform and coordinated legal regime for cross-border insolvency cases.
The purpose of Chapter 15, and the Model Law on which it is based, is to provide effective mechanisms for dealing with insolvency cases involving debtors, assets, claimants, and other parties of interest involving more than one country. This general purpose is realized through five objectives specified in the statute: (1) to promote cooperation between the United States courts and parties of interest and the courts and other competent authorities of foreign countries involved in cross-border insolvency cases; (2) to establish greater legal certainty for trade and investment; (3) to provide for the fair and efficient administration of cross-border insolvencies that protects the interests of all creditors and other interested entities, including the debtor; (4) to afford protection and maximization of the value of the debtor's assets; and (5) to facilitate the rescue of financially troubled businesses, thereby protecting investment and preserving employment. 11 U.S.C. § 1501.
Generally, a chapter 15 case is ancillary to a primary proceeding brought in another country, typically the debtor's home country. As an alternative, the debtor or a creditor may commence a full chapter 7 or chapter 11 case in the United States if the assets in the United States are sufficiently complex to merit a full-blown domestic bankruptcy case. 11 U.S.C. § 1520(c). In addition, under chapter 15 a U.S. court may authorize a trustee or other entity (including an examiner) to act in a foreign country on behalf of a U.S. bankruptcy estate. 11 U.S.C. § 1505.
An ancillary case is commenced under chapter 15 by a "foreign representative" filing a petition for recognition of a "foreign proceeding." (1) 11 U.S.C. § 1504. Chapter 15 gives the foreign representative the right of direct access to U.S. courts for this purpose. 11 U.S.C. § 1509. The petition must be accompanied by documents showing the existence of the foreign proceeding and the appointment and authority of the foreign representative. 11 U.S.C. § 1515. After notice and a hearing, the court is authorized to issue an order recognizing the foreign proceeding as either a "foreign main proceeding" (a proceeding pending in a country where the debtor's center of main interests are located) or a "foreign non-main proceeding" (a proceeding pending in a country where the debtor has an establishment, (2) but not its center of main interests). 11 U.S.C. § 1517. Immediately upon the recognition of a foreign main proceeding, the automatic stay and selected other provisions of the Bankruptcy Code take effect within the United States. 11 U.S.C. § 1520. The foreign representative is also authorized to operate the debtor's business in the ordinary course. Id. The U.S. court is authorized to issue preliminary relief as soon as the petition for recognition is filed. 11 U.S.C. § 1519.
Through the recognition process, chapter 15 operates as the principal door of a foreign representative to the federal and state courts of the United States. 11 U.S.C. § 1509. Once recognized, a foreign representative may seek additional relief from the bankruptcy court or from other state and federal courts and is authorized to bring a full (as opposed to ancillary) bankruptcy case. 11 U.S.C. §§ 1509, 1511. In addition, the representative is authorized to participate as a party of interest in a pending U.S. insolvency case and to intervene in any other U.S. case where the debtor is a party. 11 U.S.C. §§ 1512, 1524.
Chapter 15 also gives foreign creditors the right to participate in U.S. bankruptcy cases and it prohibits discrimination against foreign creditors (except certain foreign government and tax claims, which may be governed by treaty). 11 U.S.C. § 1513. It also requires notice to foreign creditors concerning a U.S. bankruptcy case, including notice of the right to file claims. 11 U.S.C. § 1514.
One of the most important goals of chapter 15 is to promote cooperation and communication between U.S. courts and parties of interest with foreign courts and parties of interest in cross-border cases. This goal is accomplished by, among other things, explicitly charging the court and estate representatives to "cooperate to the maximum extent possible" with foreign courts and foreign representatives and authorizing direct communication between the court and authorized estate representatives and the foreign courts and foreign representatives. 11 U.S.C. §§ 1525 - 1527.If a full bankruptcy case is initiated by a foreign representative (when there is a foreign main proceeding pending in another country), bankruptcy court jurisdiction is generally limited to the debtor's assets that are located in the United States. 11 U.S.C. § 1528. The limitation promotes cooperation with the foreign main proceeding by limiting the assets subject to U.S. jurisdiction, so as not to interfere with the foreign main proceeding. Chapter 15 also provides rules to further cooperation where a case was filed under the Bankruptcy Code prior to recognition of the foreign representative and for coordination of more than on foreign proceeding. 11 U.S.C. §§ 1529 - 1530.
The UNCITRAL Model Law has also been adopted (with certain variations) in Canada, Mexico, Japan and several other countries. Adoption is pending in the United Kingdom and Australia, as well as other countries with significant international economic interests.
- A "foreign proceeding" is a "judicial or administrative proceeding in a foreign country ... under a law relating to insolvency or adjustment of debt in which proceeding the [debtor's assets and affairs] are subject to control or supervision by a foreign court for the purpose of reorganization or liquidation." 11 U.S.C. § 101(23). A "foreign representative" is the person or entity authorized in the foreign proceeding "to administer the reorganization or liquidation of the debtor's assets or affairs or to act as a representative of such foreign proceeding."
- An establishment is a place of operations where the debtor carries out a long term economic activity. 11 U.S.C. § 1502(2).
Fri., September 16, 2016
Fri., May 6, 2016
Kaisa Group Holdings Ltd., which last year became the first Chinese real estate developer to default on dollar bonds, is seeking to use U.S. bankruptcy law to help its debt reorganization in a Hong Kong court, Bloomberg News reported. The Shenzhen, China-based company filed a Chapter 15 petition in Manhattan court Thursday. Companies use that provision of U.S. bankruptcy law to deal with U.S. creditors or lawsuits when reorganizing in another country. Kasia, which listed $14.9 billion in debt and $16.1 billion in assets, said that holders of 96 percent of its offshore obligations, which are from outside of China, support the restructuring agreement negotiated in the Hong Kong proceeding...
Wed., March 30, 2016
Abengoa SA has filed for bankruptcy protection in the U.S. as the Spanish energy company continues talks with its banks and bondholders to agree on its plan to restructure billions of dollars in debt, The Wall Street Journal reported. The renewable energy company, which operates around the world, on Monday night filed for chapter 15 protection, the section of the U.S. bankruptcy code dealing with cross-border insolvencies, in U.S. Bankruptcy Court in Wilmington, Del. The bankruptcy filing comes after Abengoa struck a deal with key creditors that gives it more time—through Oct. 28—to continue negotiations on restructuring its debts, which court papers show total more than €14.6...
Thu., May 28, 2015
The liquidators of a pair of failed Cayman Islands-based hedge funds run by a former Harvard quarterback are suing Barclays PLC to claw back some $80 million they say was illegally funneled to the bank to cover margin calls, The Wall Street Journal reported. The offshore funds--ICP Strategic Credit Income Fund Ltd. and ICP Strategic Credit Income Master Fund Ltd. -- were so-called feeder funds managed by ICP Asset Management LLC, a money-management firm founded by Thomas C. Priore. Lawyers for the liquidators said in a suit filed in U.S. Bankruptcy Court in New York that Mr. Priore, ICP’s 46-year-old founder and former Harvard University quarterback, fraudulently transferred...
Thu., April 9, 2015
Rizzo Bottiglieri de Carlini Armatori SpA, a marine freight transportation services provider, moved to shield its U.S. assets by filing a bankruptcy petition in Texas after seeking protection from creditors in Italy, Bloomberg News reported. The company filed under Chapter 15 of the U.S. Bankruptcy Code, which would prevent creditors from taking action against the company’s U.S.-based assets while it reorganizes under Italian law. The company listed assets and debt of more than $500 million each in court documents filed Wednesday in U.S. Bankruptcy Court in Houston. The Italian proceeding is before the Court of Torre Annunziata. The company is asking a U.S. judge to recognize the Italian...
Tue., March 17, 2015
South Korean bulker operator Daebo International Shipping has filed for bankruptcy protection in the Southern District of New York, TradeWinds News reported. The Chapter 15 petition follows an application to commence rehabilitation proceedings in the Seoul Central District Court, which was submitted on 11 February 2015. Since then, at least five creditors have filed lawsuits against Daebo and its affiliates in the US, which is why observers say they aren't surprised by today’s revelation. They note it’s not uncommon for debtors to seek Chapter 15 recognition of foreign restructurings, particularly when a petitioner's assets are targets of domestic suits. On Friday a judge in the...
- Uncitral Model Law on Cross-Border Insolvency with Guide to Inactment
- BAPCPA Legislative Summary
- (P.L. 109-8)
- Senate Bill 256 (as introduced)
- Senate Hearing 109-1014
- H.Res. 211
- House Report 109-31 (Part 1)
- House Debate 4-14-05
- Senate Debate 3-10-05
- Senate Debate 3-09-05
- Senate Debate 3-08-05
- Senate Debate 3-07-05
- Senate Debate 3-04-05
- Senate Debate 3-03-05
- Senate Debate 3-02-05
- Senate Debate 3-01-05
- Senate Debate 2-28-05