Establishing Recognition of a Foreign Bankruptcy Proceeding Under Chapter 15

In a case of first impression, Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010), the Fifth Circuit denied a petition for recognition of an Israeli bankruptcy proceeding under chapter 15 for an individual debtor because it did not qualify as a foreign main or foreign nonmain proceeding. The court found that neither the debtor’s “center of main interest” (“COMI”) nor his “establishment” were located in Israel at the time the petition for recognition was filed. Relying on both the statute’s use of the present tense and chapter 15’s stated purpose of international uniformity, the Fifth Circuit explicitly rejected the argument that the debtor’s COMI and his establishment should be determined as of the time the foreign bankruptcy was filed. The Fifth Circuit also set forth the test for determining the COMI of an individual debtor. Section 1502 defines a foreign main proceeding as a “foreign proceeding pending in the country where the debtor has the center of its main interests.” Although chapter 15 provides no formal definition for COMI, section 1516(c) states that an individual’s “habitual residence” is presumed to be the COMI. Foreign courts have likened “habitual residence” to the concept of domicile, which is established by “physical presence in a location coupled with an intent to remain there indefinitely.” Other factors examined by the court include: “(1) the length of time spent in the location; (2) the occupational or familial ties to the area; and (3) the location of the individual's regular activities, jobs, assets, investments, clubs, unions, and institutions of which he is a member.” After determining the appropriate test, the court next held that the debtor’s COMI should be determined at the time the foreign representatives filed the chapter 15 petition. In reaching this holding, the court relied on the use of the present tense through the word “has” in section 1502(4) and an increased likelihood of conflicting COMI determinations if the filing of the foreign proceeding was used as the measuring point. Such conflicting determinations would frustrate the harmonious intent behind the enactment of chapter 15. Because the foreign representative did not sufficiently rebut the presumption that the debtor’s habitual residence was also his COMI, the court found the United States to be the debtor’s COMI and held that the proceeding did not qualify as a foreign main proceeding. Additionally, the Fifth Circuit held the proceeding did not qualify as a foreign nonmain proceeding. The Fifth Circuit also determined establishment for an individual for a first time. Unlike the presumption provided for foreign main proceedings under section 1516(c), inquiry into a foreign nonmain proceeding presents an essentially factual question. Section 1502(5) defines a foreign nonmain proceeding as “a foreign proceeding, other than a foreign main proceeding, pending in a country where the debtor has an establishment.” An establishment is “any place of operations where the debtor carries out a nontransitory economic activity.” The Fifth Circuit equated a place of business with having a “secondary residence or possibly a place of employment in the country where the receiver claims that he has an establishment.” Similar to the determination of COMI, the relevant time to determine whether a debtor has an establishment is the time the petition for recognition is filed. Again, the Fifth Circuit pointed to the use of the present tense in section 1502(2) which refers to an establishment as any place a debtor “carries” out nontransitory economic activity. The court found no evidence that the debtor had a secondary residence, was employed, or carried out nontransitory economic activity in Israel since moving to the United States in 1997. Ultimately, the court found the foreign bankruptcy did not qualify as a nonmain proceeding. As a case of first impression, Ran will prove significant for a few reasons. First, the Fifth Circuit’s use of domicile as the test for “habitual residence” is sure to influence courts examining a petition for recognition of an individual under chapter 15. Second, the court’s interpretation of “establishment” as a secondary residence or place of employment for an individual when determining foreign nonmain proceedings provides other courts a basis to determine the establishment of individual debtors. Lastly, the court’s interpretation of the language of section 1502 sets the significant time for viewing the qualifications of foreign main or foreign nonmain proceedings as the time the petition for recognition under chapter 15 is filed, rather than at the time the foreign bankruptcy began.