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.

NOTES

  1. 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."
  2. An establishment is a place of operations where the debtor carries out a long term economic activity. 11 U.S.C. § 1502(2).

Tue., March 20, 2012

Tue., March 20, 2012

Elpida Memory Inc., the last Japanese maker of computer-memory chips, sought protection from creditors in the U.S. as it pursues a bankruptcy case in Japan. The Tokyo-based chipmaker filed court papers today in U.S. Bankruptcy Court in Wilmington, Delaware, listing more than $1 billion in assets and debt. It asked the court to recognize the Japanese case as the main bankruptcy proceeding. Chapter 15 of the bankruptcy code allows foreign companies reorganizing abroad to protect their assets from creditors and lawsuits in the U.S. Elpida last month filed the biggest Japanese bankruptcy in more than two years, after semiconductor prices fell and it failed to obtain a second government...

Thu., March 15, 2012

Thu., March 15, 2012

Units of Berlian Laju Tanker, Indonesia’s largest oil and gas shipping group, filed for Chapter 15 creditor protection in a US bankruptcy court early Wednesday morning, The Jakarta Globe reported on a Reuters story. The company’s units have listed assets and liabilities in the $50 million to $100 million range, according to a filing with the US bankruptcy court in the Southern District of New York. Under US bankruptcy laws, Chapter 15 grants a foreign company protection from creditors looking to seize its assets in the country. On Tuesday, Berlian Laju said some of its subsidiaries had obtained court orders in Singapore to stay all legal proceedings against them for a period of...

Thu., February 23, 2012

Thu., February 23, 2012

Arctic Glacier Income Fund said Wednesday it will file for a court supervised restructuring under the Companies' Creditors Arrangement Act that the ice maker said could result in a sale or recapitalization of the business, The Globe and Mail reported on a Canadian Press story. The process has the support both of Arctic Glacier's secured lenders and two of its unitholders, Coliseum Capital Management and Talamod Asset Management, the fund said. Arctic Glacier's secured lenders have agreed, subject to court approval, to provide up to $50-million in debtor-in-possession financing to fund operations during the CCAA process. The fund said an application will also be made seeking...

Fri., February 17, 2012

Fri., February 17, 2012

Mexico is studying international best practices for corporate bankruptcy proceedings after glassmaker Vitro SAB’s use of intercompany debt caused some investors to question the country’s laws, Bloomberg Businessweek reported. Vitro, which won a Mexican court’s approval this month for its debt restructuring plan, has called attention to a loophole in the country’s bankruptcy process that allowed it to use loans made to itself to qualify as its own biggest creditor. “As we learn from experience, there may be room for improvement,” Deputy Finance Minister Gerardo Rodriguez said in a telephone interview today from Mexico City. “Looking specifically at the standard that we have currently in...

Wed., February 8, 2012

Wed., February 8, 2012

Oilsands Quest Inc., which explores for oil in sand deposits in western Canada, is seeking protection from its U.S. creditors and shareholders, Dow Jones Daily Bankruptcy Review reported. Oilsands, which once did business as CanWest Petroleum Corp., sought the protection of a Canadian court last November. The Calgary, Alberta, company is now asking the U.S. Bankruptcy Court in Manhattan to recognize the Canadian proceeding and extend its protection to the company in the U.S., where it faces three shareholder lawsuits....

Wed., February 8, 2012

Mexican glass maker Vitro SAB said Tuesday that a court in Mexico has approved its debt restructuring, but that it expects certain of its bondholders who have fought the deal to continue efforts against the plan, Dow Jones reported. In a press release, Vitro said a judge in Monterrey approved the proposed restructuring put forward by the conciliator in the case. The restructuring of $1.5 billion in third-party debt has caused controversy among bondholders, as it involves Vitro voting on an additional $1.9 billion in intercompany debt to secure the majority needed for approval. Vitro, which has been working on a debt overhaul since defaulting in early 2009, said Tuesday that it hopes to...