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 3, 2009

Tue., March 3, 2009

Foundering under $1.2 billion in debts, Brazilian beef exporter Independencia SA has filed for Chapter 15 bankruptcy protection to shield its U.S. bank accounts from creditor actions as the company pursues reorganization at home, Bankruptcy Law360 reported. The petition, filed Friday in the U.S. Bankruptcy Court for the Southern District of New York, says Independencia has commenced restructuring "a crippling debt burden" under Brazilian insolvency law and requires court protection of its U.S. assets. While 99 percent of the debtor's assets are in Brazil, the company holds funds in several bank accounts and accounts receivable in the U.S., the filing says. Under reorganization,...

Thu., January 22, 2009

Thu., January 22, 2009

CPI Plastics Group Ltd., the plastics maker based in Mississauga, Ontario, sought bankruptcy protection in Canada and the U.S., blaming the deepening U.S. recession and rising prices of raw materials, Bloomberg reported. The 37-year-old firm and four of its units were forced into bankruptcy by the Bank of Montreal after CPI’s $3.4 million loss in the fourth quarter violated loan agreements with the bank. CPI, which has a facility in Pleasant Prairie, Wisconsin, has debt of about $54.4 million and estimated assets of less than $100 million, court papers show. Chapter 15 lets foreign companies reorganize outside the U.S. while protecting them from U.S. lawsuits and creditor claims. CPI...

Thu., January 8, 2009

Thu., January 8, 2009

Glitnir Banki HF, the first of three major Icelandic banks to file Chapter 15 petitions following the country's financial crisis, won permission Tuesday to receive bankruptcy protection of its U.S. assets, Bankruptcy Law360 reported. Read more. (Subscription required.)

Mon., December 15, 2008

Mon., December 15, 2008

German reinsurer Global General and Reinsurance Co. Ltd., formerly the sixth largest reinsurance company in the world, has filed for Chapter 15 protection in the U.S., Bankruptcy Law360 reported. The filing indicated liabilities of more than $100 million and assets of more than $100 million. The company has estimated that it has between 50 and 99 creditors. Howard Seif, global chair of Chadbourne & Parke LLP’s bankruptcy and restructuring practice, is commandeering the U.S. proceedings. The U.K. insolvency proceedings will operate as the foreign main proceeding and the German court will serve as nonmain foreign proceeding, according to Seif. “Absent the relief requested,...

Wed., December 10, 2008

Wed., December 10, 2008

Landsbanki Islands hf sought bankruptcy protection from its U.S. creditors on Tuesday, the last of Iceland's three largest banks to do so in the last two weeks, Reuters reported. The Reykjavik-based lender filed a Chapter 15 bankruptcy petition with the U.S. bankruptcy court for the Southern District of New York. It said it had more than $1 billion of both assets and liabilities. Iceland's banks had taken on billions of dollars of debt in recent years to fund aggressive overseas expansion. After the country took a majority stake in Glitnir in late September, investors rushed to shed Icelandic assets, causing the krona to sink and a bank run on the nation's largest lenders. Since 2006,...

Tue., December 2, 2008

Tue., December 2, 2008

Kaupthing Bank hf, Iceland's largest bank, has sought bankruptcy protection from its U.S. creditors, Reuters reported. The Reykjavik-based lender filed a Chapter 15 bankruptcy petition on Sunday with the U.S. bankruptcy court for the Southern District of New York. The filing came after Iceland's Financial Supervisory Authority seized Kaupthing, Glitnir Banki hf and Landsbanki Islands hf, the nation's three largest banks, as the global credit crisis deepened. Glitnir filed on Nov 26 for Chapter 15 protection. Kaupthing has about $14.8 billion of principal assets, including $222 million located in the United States, and $26 billion of principal indebtedness, according to a court filing by...