LDK Solar Co., the Chinese solar-cell maker that defaulted on its bonds this year, filed for bankruptcy in the U.S. to help carry out restructurings already under way in Hong Kong and the Cayman Islands, Bloomberg News reported. Xinyu, China-based LDK filed for Chapter 15 protection today in Wilmington, Delaware, listing about $1.13 billion in debt and $510 million in assets as of May 31. Chapter 15 is the section of the bankruptcy code used by foreign companies restructuring abroad to fend off creditors and distribute payments in the U.S. Affiliates in the U.S., including LDK Solar Systems Inc., sought protection under Chapter 11. “Since 2011, the group’s financial performance has...
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).
Wed., October 22, 2014
Fri., August 1, 2014
Zodiac Pool Solutions SAS, the Paris-based swimming pool and spa manufacturer, filed Thursday for bankruptcy protection in the U.S. as part of its debt-restructuring effort now under way in the U.K., The Wall Street Journal reported. Formerly known as Zodiac Marine & Pool, Zodiac Pool filed for protection under Chapter 15—the section of the Bankruptcy Code that deals with international insolvencies—in U.S. Bankruptcy Court in Wilmington, Del. In 2007, Washington-based private-equity firm Carlyle Group CG -3.83% LP bought Zodiac and then merged its WaterPik business into the company. Carlyle later split off Zodiac's aerospace division form the pool maker. The company, which...
Thu., July 17, 2014
A Florida federal bankruptcy judge on Tuesday approved Brazilian bank Banco Cruzeiro do Sul SA's petition for Chapter 15 bankruptcy, a decision that will provide the bank some protection in United States courts while it continues its primary insolvency proceedings in Brazil, Law360 reported. U.S. District Court Bankruptcy Judge Laurel M. Isicoff granted recognition to the bank's petition for Chapter 15 bankruptcy, which was filed on June 5, saying that the bank's foreign representative, Eduardo Felix Bianchini, is qualified and granting the bank protection in U.S. courts. Read more....
Wed., June 18, 2014
Mt. Gox Co., once the world’s largest bitcoin exchange, won approval of its U.S. bankruptcy filing, giving a boost to a Japanese investigation into the disappearance of 650,000 units of the digital currency, Bloomberg Businessweek reported. U.S. Bankruptcy Judge Stacey G. Jernigan said today in Dallas she has “ample legal authority” to accept the U.S. filing and recognize Mt. Gox’s Japanese bankruptcy as the foreign main proceeding. The ruling empowers the company’s Japanese trustee to examine witnesses, gather and review evidence, and oversee assets in the U.S., such as servers. “This is really going to be all about the customers,” who make up almost all of the creditors, and trying to...
Wed., June 11, 2014
Veris Gold Corp., which owns Jerritt Canyon, filed for bankruptcy protection Monday in the U.S. and Canada after the Deutsche Bank AG, London Branch claimed the company was in default, the Elko Daily Free Press reported. These filings also follow Veris Gold laying off nearly 60 people at the Jerritt Canyon complex last week. Veris Gold said the Supreme Court of British Columbia issued an order Monday granting “the company’s application for creditor protection under the Companies’ Creditors Arrangement Act.” Veris Gold has its headquarters in Vancouver. The order also extends protection to Veris’ subsidiaries Queenstake Resources Ltd., Ketza River Holdings Ltd., and Veris Gold...
Tue., June 10, 2014
Bitcoin company CoinLab Inc. has thrown its support behind Japanese bitcoin exchange Mt. Gox's U.S. bankruptcy case, a change of course for CoinLab, which has sued Mt. Gox for $75 million, The Wall Street Journal reported. Lawyers for CoinLab said in court papers Friday that they wouldn't object to Mt. Gox's formal request for U.S. bankruptcy protection, despite earlier hints that they might challenge that request. Court documents offered no explanation for CoinLab's decision. Japanese insolvency expert Nobuaki Kobayashi, who is leading Mt. Gox's bankruptcy in Tokyo, said that official recognition of Mt. Gox's U.S. bankruptcy case would give him more authority over developments...
- 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