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    Kumtor Gold Challenges the Practical Application of the Automatic Stay's Global Reach
    2021-11-15

    Although the automatic stay contained in section 362 of the Bankruptcy Code theoretically extends worldwide, enforcing it against international creditors, particularly sovereigns, can present practical problems in its application. The chapter 11 cases of Kumtor Gold Company CJSC and Kumtor Operating Company CJSC (collectively, "Kumtor") pending before Judge Lisa Beckerman in the U.S. Bankruptcy Court for the Southern District of New York (Case No. 21-11051) have been testing the practical application of the automatic stay's global reach since the commencement of the cases in late May 2021.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Illinois Bankruptcy Court Examines Statutory Authority for Enforcing Foreign Bankruptcy Court Orders in Chapter 15 Cases
    2021-07-29

    In cases under both chapter 15 of the Bankruptcy Code and its repealed predecessor, section 304, U.S. bankruptcy courts have routinely recognized and enforced orders of foreign bankruptcy and insolvency courts as a matter of international comity. However, U.S. bankruptcy courts sometimes disagree over the precise statutory authority for granting such relief, because the provisions of chapter 15 are not particularly clear on this point in all cases.

    Filed under:
    Germany, USA, Illinois, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Corinne Ball , Dan T. Moss , Michael C. Schneidereit , Isel M. Perez , Mark G. Douglas
    Location:
    Germany, USA
    Firm:
    Jones Day
    Tenth Circuit BAP: Bankruptcy Courts Have Exclusive Jurisdiction to Determine Whether Claims Are Estate Property
    2020-12-11

    In Hafen v. Adams (In re Hafen), 616 B.R. 570 (B.A.P. 10th Cir. 2020), a bankruptcy appellate panel from the Tenth Circuit ("BAP") held that the bankruptcy court is the only court with subject-matter jurisdiction to decide whether a claim or cause of action is property of a debtors' bankruptcy estate. As a consequence, the BAP held that the bankruptcy court abused its discretion by permitting a state court to determine whether creditors had "standing" to sue third-party recipients of allegedly fraudulent transfers.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Bankruptcy, Tenth Circuit
    Authors:
    Timothy Hoffmann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    Assets May Be Sold in Bankruptcy Free and Clear of Successor Liability
    2020-08-13

    The ability of a bankruptcy trustee or chapter 11 debtor-in-possession ("DIP") to sell assets of the bankruptcy estate "free and clear" of "any interest" in the property asserted by a non-debtor is an important tool designed to maximize the value of the estate for the benefit of all stakeholders. The U.S. Bankruptcy Court for the Central District of California recently examined whether such interests include "successor liability" claims that might otherwise be asserted against the purchaser of a debtor's assets. In In re Catalina Sea Ranch, LLC, 2020 WL 1900308 (Bankr. C.D. Cal.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Employee Retirement Income Security Act 1974 (USA), Title 11 of the US Code
    Authors:
    Timothy Hoffmann , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    U.S. Supreme Court: Creditors May Immediately Appeal Denials of Automatic-Stay Relief
    2020-01-24

    In Short

    The Situation. In Ritzen Group, Inc. v. Jackson Masonry, LLC, the U.S. Supreme Court considered whether bankruptcy court orders conclusively denying relief from the Bankruptcy Code's automatic stay are immediately appealable.

    The Result. On January 14, 2020, the Court unanimously ruled that an order conclusively resolving a motion for relief from the automatic stay was immediately appealable, such that a later-filed appeal was untimely and must be dismissed.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Title 11 of the US Code, SCOTUS
    Authors:
    Brad B. Erens , Christopher Dipompeo
    Location:
    USA
    Firm:
    Jones Day
    The Fifth Circuit Rules That a Make-Whole Premium Is Unmatured Interest Generally Disallowed in Bankruptcy
    2019-08-19

    In In re Ultra Petroleum Corp., 913 F.3d 533 (5th Cir. 2019), the U.S. Court of Appeals for the Fifth Circuit ruled that a "make-whole," or "prepayment," premium owed on unsecured notes issued by a chapter 11 debtor constituted unmatured interest disallowed by section 502(b)(2) of the Bankruptcy Code. The ruling represents a landmark decision on the allowance of such premiums in chapter 11, over which there has been considerable litigation in recent years, including at the circuit court level.

    Enforceability of Make-Whole Premiums in Bankruptcy

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day, Debtor, Title 11 of the US Code, Fifth Circuit
    Authors:
    Brad B. Erens , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    New UNCITRAL Model Law on the Recognition and Enforcement of Insolvency-Related Judgments
    2019-02-26

    On September 18, 2018, the United Nations Commission on International Trade Law ("UNCITRAL") published its final version of the new Model Law on the Recognition and Enforcement of Insolvency-Related Judgments (the "IRJ Model Law"). The IRJ Model Law creates a framework for the recognition and enforcement of judgments in foreign bankruptcy and insolvency proceedings. It is intended to supplement and complement the 1997 UNCITRAL Model Law on Cross-Border Insolvency (the "CBI Model Law").

    Filed under:
    Global, United Kingdom, Insolvency & Restructuring, Litigation, Jones Day, UNCITRAL
    Authors:
    Mark G. Douglas
    Location:
    Global, United Kingdom
    Firm:
    Jones Day
    Patently Abusive Chapter 11 Cases Filed by Non-Financially Distressed Companies Dismissed for Bad Faith
    2018-06-08

    In the service of the Bankruptcy Code’s goals of giving debtors a "fresh start" and ensuring that estate assets are fairly and equally distributed among similarly situated creditors, the Bankruptcy Code contains an array of advantageous provisions that either do not exist under non-bankruptcy law or are more difficult to deploy. These include, among other things, the ability to reject burdensome contracts, to avoid preferential or fraudulent transfers, and to limit the amount of certain types of creditor claims.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Jones Day
    Authors:
    Jane Rue Wittstein , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day
    To Have and to Hold: Third Circuit Rules That Physical Possession of Goods Is Required Under Section 503(b)(9) of the Bankruptcy Code
    2017-11-22

    Since its enactment as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, section 503(b)(9) of the Bankruptcy Code has provided an important safety net for creditors selling goods to financially struggling companies that file for bankruptcy. The provision gives vendors an administrative expense priority claim for the value of goods "received by the debtor" during the 20-day period before the bankruptcy petition date. The U.S.

    Filed under:
    USA, Company & Commercial, Insolvency & Restructuring, Litigation, Jones Day
    Location:
    USA
    Firm:
    Jones Day
    Section 553 of the Bankruptcy Code Preserves Rather Than Creates Setoff Rights
    2017-08-11

    In Feltman v. Noor Staffing Grp., LLC (In re Corp. Res. Servs. Inc.), 564 B.R. 196 (Bankr. S.D.N.Y. 2017), the bankruptcy court considered whether section 553 of the Bankruptcy Code creates a right of setoff when no such right is available under applicable nonbankruptcy law. The court concluded that section 553 does not create an independent federal right of setoff, but merely preserves any such right that exists under applicable nonbankruptcy law.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Jones Day, United States bankruptcy court
    Authors:
    Anna Kordas , Mark G. Douglas
    Location:
    USA
    Firm:
    Jones Day

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