Over the past two years, there has been an interesting trend of courts, in certain circumstances, borrowing from principles of insolvency law when determining analogous questions of trust law. Most recently, the private wealth industry has seen this very application in connection with the now infamous proceedings relating to the trust known as the Ironzar II Trust[1].
On April 19, 2023, the Supreme Court, in a unanimous opinion written by Justice Ketanji Brown Jackson in MOAC Mall Holdings LLC, ruled Bankruptcy Code section 363(m) to be non-jurisdictional, i.e. just a “mere restriction on the effects of a valid exercise” of judicial power “when a party successfully appeals a covered authorization.” Before MOAC, the Third, Sixth, Seventh, Ninth, Tenth and Eleventh Circuits held section 363(m) to be non-jurisdictional, but the Fifth and Second Circuits had diverged.
Reasoning
In In re Schubert, the Sixth Circuit affirmed the bankruptcy court’s dismissal of an adversary proceeding because the appellants had failed the “person-aggrieved” test for bankruptcy appellate standing. Had they challenged this standard’s existence, two of the three judges likely would have “abrogate[d]” it; the third would have salvaged it. This decision’s dicta represents perhaps the first outright rejection of bankruptcy’s appellate standing touchstone based on the Supreme Court’s analysis in Lexmark International Inc. v. Static Control Components, Inc., 572 U.S.
The statutory language is clear. As of a bankruptcy petition’s filing date, the automatic stay of section 362 constricts many a creditor and bars many an action. The broad scope of section 362(a)(1) proscribes “the commencement or continuation ...
When can a municipality declare bankruptcy under chapter 9 of the Bankruptcy Code? An issue explored the headline-grabbing chapter 9 case of Detroit, that’s the question illuminated by a decision dealing with the travails of Chester, Pennsylvania, issued by the United States Bankruptcy Court for the Eastern District of Pennsylvania (“Bankruptcy Court”) on March 14, 2023.
Chester’s Long Road to Insolvency
Background
Whether a foreign bankruptcy case can be recognized under chapter 15 if the foreign debtor does not satisfy the commands of both section 109 (of chapter 1) and section 1517 (of chapter 15) of the Bankruptcy Code has long been a contentious issue. As previewed at an oral argument held on March 10, 2023, the Eleventh Circuit has now waded into this thicket, setting up the possibility of a circuit-level counterweight to the Second Circuit’s seminal decision in In re Barnet.
Statutory Text
Facts
Insolvency Act 2003
Comment
In the Three Arrows case,(1) the BVI Court has endorsed what is believed to be its first extra-territorial order summoning directors of a BVI company (in liquidation) to appear for private examination by joint liquidators.
On January 20, 2023, as few courts, such as the U.S. Bankruptcy Court for the District of Colorado, have consistently done, the U.S. Bankruptcy Court for the Central District of California (the “Bankruptcy Court”) further hewed a path for former cannabis businesses to utilize the protections of the U.S. Code's eleventh title (the "Bankruptcy Code") in spite of a mostly inhospitable (and frequently hesitant) jurisprudence--and the steady opposition of the U.S. Trustee's Office (the "UST").
In legal parlance, the term “standing” embraces several discrete doctrines that govern the capacity of a party to sue and appear before a particular court. These concepts' fluidity should not obscure their importance: a party’s standing is a perpetual jurisdictional question, open to review throughout the lifespan of a particular case or matter and at every appellate level.
Types of Standing
Two Generally Applicable Forms
Corporate insolvency in BVI is governed by the Insolvency Act, 2003 (as amended) and the Insolvency Rules, 2005 (as amended). These laws are closely based on the English Insolvency Act 1986. There are a number of insolvency regimes available.