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).

Wed., September 18, 2013

Wed., September 18, 2013

Two so-called vulture funds in the United States, which hold $75 million of subordinated bonds issued by the former Anglo Irish Bank, are threatening to scupper an attempt by the bank’s liquidators to protect $1 billion of its US assets from seizure by its creditors. The Irish Times understands that the funds, Burlington Alpha and Burlington Beta, are linked to Elliott Management, the giant hedge fund controlled by US billionaire Paul Singer. Mr Singer is one of the US Republican Party’s biggest contributors. One of his funds recently won a $1.3 billion subordinated bond case against the Argentine government over its sovereign default of a decade ago. Burlington’s lawyers...

Thu., September 5, 2013

Thu., September 5, 2013

The adoption of cross-border protocols by judges in Canada and the U.S. on Wednesday will allow the Montreal, Maine and Atlantic Railway bankruptcy to move forward so that the victims of the Lac-Megantic train disaster may receive compensation as quickly as possible, the trustee assigned to oversee the case said, Bangor Daily News reported. “The U.S. case and the Canadian case are being administered primarily for the victims,” Robert Keach, a Portland lawyer who was appointed Aug. 22 to serve as trustee during the bankruptcy proceeding, said after a hearing in Bangor. “Wrongful death litigants and any personal injury claims will be paid after any secured debt is paid,” Keach...

Wed., August 28, 2013

Wed., August 28, 2013

The liquidation vehicle for Ireland's failed Anglo Irish Bank has filed for bankruptcy protection in the United States, it said on Tuesday, Reuters reported. The Irish Bank Resolution Corporation's (IBRC) liquidators said they filed an application under Chapter 15 of the U.S. bankruptcy code in the district of Delaware on Monday. Chapter 15 grants a foreign company protection from creditors looking to seize its assets in the country. "These assets form part of the liquidation process currently underway," the liquidators said in a statement. Anglo Irish Bank was wrecked in 2008 when a property bubble burst after years of reckless lending and sparked more public anger in June when a...

Mon., August 26, 2013

Mon., August 26, 2013

A U.S. court has approved a multimillion-dollar settlement in a securities fraud class-action lawsuit against a bankrupt energy exploration company for which embattled Sen. Pamela Wallin was a director, The Globe and Mail reported. Between June 2007 and December 2011, Wallin was a paid member of the board of Oilsands Quest Inc., a Calgary-based exploration company. As a director, the Saskatchewan senator was named in the lawsuit along with fellow board members, TD Securities and Calgary consulting firm McDaniel and Associates. The lawsuit, filed by investors in United States District Court in New York in 2011, alleged that Oilsands Quest and its directors overstated the value of...

Fri., August 16, 2013

Fri., August 16, 2013

Lone Pine Resources Inc. failed to make a US$10.1-million, semi-annual interest payment on its senior secured notes Thursday, setting the clock ticking on a possible default the could force the natural gas and light oil developer to seek protection from creditors, Stockhouse reported. The company, incorporated in Delaware but headquartered in Calgary, said failure by Lone Pine Resources Canada Ltd. to make the payment will result in default on the 10.375 per cent senior notes maturing in 2017 unless remedied within 30 days. Such a default would allow the trustee or holders of at least 25 per cent of the US$195 million in aggregate principal amount to declare the notes immediately due and...

Wed., July 31, 2013

Wed., July 31, 2013

Syncapse, the social media marketing management company that had hoped to provide enterprise-level solutions for companies such as Coca-Cola and Johnson & Johnson on Facebook, has filed for Chapter 15 bankruptcy protection in U.S. federal court, Business Insider reported. Syncapse was one of Facebook's "preferred marketing developers," a company that qualifies to serve ads into, and gather analytics from, the social network. The move suggests that the economics of social media marketing, absent being acquired by a bigger company, are more difficult than they may appear. Syncapse is Canadian, so it filed as a foreign company. It listed 100 - 200 creditors and $10-50 million...

Fri., February 8, 2013

Thu., February 7, 2013

Mon., November 5, 2012

Mon., November 5, 2012

Europe: The Next Frontier in Restructuring?, 2012 ABI Mid-Level Professional Development Program - James Chesterman, Matthew Bonanno, David Riddell, Dennis Ruggere

Fri., November 2, 2012

Fri., November 2, 2012

Cross-Border Recognition Issues between U.S. and Mexico, 2012 U.S./Mexico Restructuring Symposium - Victor A. Vilaplana, Dario U. Oscós Coria, Robin E. Phelan, Lisa M. Schweitzer