Since the inception of the Insolvency and Bankruptcy Code, 2016 (“Code“), the debt resolution regime in India has witnessed not only a paradigm shift from the conventional ‘debtor in possession’ to a progressive ‘creditor in control’ but has also undergone a significant transformation, marking a departure from its traditional labyrinthine processes to a more streamlined and effective framework.

We have a direct statutory conflict:

• one statute requires an ERISA dispute to be resolved in arbitration; but
• a bankruptcy statute requires the same dispute to be resolved in bankruptcy.

Which statute should prevail? The bankruptcy statute, of course.

• That’s the conclusion of In re Yellow Corp.[Fn. 1]

Statutory Conflict

The In re Yellow Corp. case presents a direct conflict between these two federal statutes (emphases added):

On April 23, 2024, the American Bankruptcy Institute’s Subchapter V Task Force issued its Final Report.

This article is the second in a series summarizing and condensing the Task Force’s Final Report into “a nutshell.” The subject of this article is:

• whether future rents should be included in the debt cap calculation for Subchapter V eligibility.[Fn. 1]

Recommendation

There is a lesson for all debtor attorneys in the Chapter 7 case of In re Aquilino.[Fn. 1]

The moral of the In re Aquilino story is this:

• a little carelessness in describing and disclosing bankruptcy fees in a Chapter 7 case can create big problems.

Fee Agreements & Disclosures

Here is the winding path of fee agreement descriptions and disclosures, between the Debtors and their attorneys, in the In re Aquilino Chapter 7 case:

Borrower beware: in times of distress, your credit documents may give your secured lenders an opportunity to “flip” control of your board

Distress happens, even at companies that once appeared financially solid. When it does, the company, its board (which may be controlled by a sponsor in a public or private equity scenario), and its lenders often enter into restructuring discussions in search of a consensual path forward, typically under the terms of a forbearance agreement.

The opinion is In re Packet Construction, LLC, Case No. 23-10860 in the Western Texas Bankruptcy Court (issued April 30, 2024, Doc. 103).

Subchapter V Issue & Ruling

Here’s the issue raised by the Subchapter V Trustee’s plan objection and the Bankruptcy Court’s ruling thereon.

–Issue

In Arab v Pan, in the matter of Pan (No 3) [2024] FCA 563, the Federal Court of Australia addressed critical issues concerning the scope and compliance of summonses for production in bankruptcy, which will also impact corporate insolvency proceedings and such proceedings in other common law jurisdictions.

Section 363(m) of the Bankruptcy Code offers powerful protection for good-faith purchasers in bankruptcy sales because it limits appellate review of an approved sale, irrespective of the legal merits of the appeal. Specifically, it provides that the reversal or modification of an order approving the sale of assets in bankruptcy does not affect the validity of the sale to a good-faith purchaser unless the party challenging the sale obtains a stay pending its appeal of the order. That is, section 363(m) renders an appeal "statutorily moot" absent a stay of the sale order.

The Bankruptcy Code bars certain individuals or entities from filing for bankruptcy protection, generally because they do not reside or have a place of business or property in the United States, fail to satisfy certain debt thresholds, or are business entities, such as banks and insurance companies, subject to non-bankruptcy rules or regulations governing their rehabilitation or liquidation.

Determining a foreign debtor's "center of main interests" ("COMI") for purposes of recognizing a foreign bankruptcy proceeding in the United States under chapter 15 of the Bankruptcy Code can be problematic in cases involving multiple debtors that are members of an enterprise group doing business in several different countries. The U.S.