Category Archives: Chapter 15

Fifth Circuit Crafts New Test For Foreign Debtor Relief

On Nov. 28, 2012, the U.S. Court of Appeals for the Fifth Circuit in In re Vitro S.A.B. de C.V. issued a groundbreaking decision under Chapter 15 of the Bankruptcy Code, which provides the mechanics for U.S. bankruptcy courts to deal with cross-border insolvency proceedings. Although deference to judgments of foreign courts is the norm under Chapter 15, in this instance the Fifth Circuit refused to enforce a court-approved Mexican plan of reorganization on the ground that it contained non-consensual non-debtor releases of noteholders’ claims against the debtor’s non-debtor subsidiaries. Unlike the bankruptcy court below, the Fifth
Circuit did not hold that non-consensual nondebtor releases are “manifestly contrary” to U.S. public policy. Instead, the court held that such releases could theoretically be approved in Chapter 15 cases, but only upon a showing of the same type of “exceptional circumstances” that are deemed to justify such releases in U.S. based cases under Chapter 11.

The Fifth Circuit also developed an impressive new analytical framework for interpreting and reconciling the various provisions of Chapter 15. If adopted by courts in other jurisdictions, the Fifth Circuit’s systematic approach to the application of Chapter 15 could prove even more influential than the specific holdings of the case.

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In re Ashapura: Southern District of New York Holds that Proceeding Under Repealed Foreign Law is Entitled to Chapter 15 Recognition

On June 28, 2012, Judge Shira A. Scheindlin of the United States District Court for the Southern District of New York affirmed the order of the United States Bankruptcy Court for the Southern District of New York granting Ahapura Minechem Ltd.’s petition for recognition of its Indian insolvency proceeding as a foreign main proceeding under chapter 15 of the Bankruptcy Code. Armada v. Shah (In re Ashapura Minechem Ltd.), 2012 WL 2478467 (S.D.N.Y. June 28, 2012). In so holding, the District Court approved the recognition of a proceeding governed by a statute, The Sick Industrial Companies Act (“SICA”), that Indian legal scholars have sharply criticized and that the Indian legislature actually repealed in 2003. Continue reading

SDNY Bankruptcy Court Opens Door For Rule 2004 Use in Chapter 15

On May 25, 2012, Judge Allan L. Gropper of the United States Bankruptcy Court for the Southern District of New York approved a motion to compel the production of certain documents under section 1521 of the Bankruptcy Code. In his decision, Judge Gropper also suggested that the broad discovery provisions of Bankruptcy Rule 2004 may apply to chapter 15 discovery requests, but stopped short of making such a ruling. In re Millennium Global Emerging Credit Master Fund Limited, Case No. 11-13171 (ALG), (Bankr. S.D.N.Y May 25, 2012). Continue reading

Vitro: Chapter 15 and the Limits of Comity: Texas Bankruptcy Court Refuses to Enforce Third Party Release Provisions in Mexican Plan of Reorganization

On June 13, 2012, Judge Harlin D. Hale of the United States Bankruptcy Court for the Northern District of Texas refused to enforce provisions of a Mexican plan of reorganization that purported to extinguish guarantees by the debtor’s non-debtor subsidiaries. In refusing to enforce the non-debtor release, Judge Hale held both that the release of non-debtor guarantors was contrary to United States public policy and that the release did not merit enforcement under the specific criteria of chapter 15 for granting relief to a foreign debtor. The decision demonstrates that, while comity is the primary consideration governing chapter 15 cases, it is not without limit. The decision should also indicate to creditors that third party releases of non-debtor guarantors created in cases pending outside the U.S. are not likely to be enforced in the United States. Vitro, S.A.B. de C.V. v. ACP Master, Ltd. (In re Vitro), No. 11-33335-HDH-15, 2012 Bankr. LEXIS 2682 (Bankr. N.D. Tex. June 13, 2012). Continue reading

District Court for the Southern District of New York Reaffirms Extraterritorial Effect of the Automatic Stay

On May 4, 2012, Judge J. Paul Oetken of the United States District Court of the Southern District of New York held that the Bankruptcy Court has the injunctive power to enforce the automatic stay against entities falling within the Bankruptcy Court’s in personam jurisdiction, and that, in this case, the enforcement of the automatic stay did not violate interests of comity. Sec. Investor Prot. Corp v. Bernard L. Madoff Inv. Sec., LLC (In re Bernard L. Madoff Inv. Sec., LLC), No. 11 Civ. 8629 (JPO), 2012 WL 1570859 (S.D.N.Y. May 4, 2012). Continue reading

SNP Boat Service S.A.: Clarifying the Limited Reach of a U.S. Bankruptcy Court in Chapter 15

Addressing issues of comity in a chapter 15 bankruptcy proceeding, Judge K. Michael Moore of the United States District Court for the Southern District of Florida recently ruled that a U.S. court can only examine whether the overarching foreign law in question comports with the United States’ concepts of fairness and due process, but that it cannot examine specific proceedings or decisions of the foreign court. SNP Boat Service S.A. v. Hotel Le St. James, No. 11-62671 (S.D. Fla. Apr. 18, 2012). Chapter 15 of the Bankruptcy Code was enacted in 2005 for the purpose of providing an effective mechanism for dealing with cases of cross-border insolvency. Through chapter 15, a U.S. bankruptcy court can “recognize” a foreign restructuring proceeding and play an important role in the coordination of an international debtor’s affairs. Accordingly, Judge Moore’s ruling in SNP Boat Service is significant in that it clarifies a United States court’s ability to question the legal framework of a foreign jurisdiction when determining whether or not to give force and effect to its rulings. Continue reading

SDNY Bankruptcy Court Tackles Jurisdiction of Federal Maritime Commission

On February 10, 2012, Judge Sean Lane of the United States Bankruptcy Court for the Southern District of New York denied the motion of 22 defendants in adversary proceedings filed by the Debtor, The Containership Company, seeking to lift the automatic stay to file complaints before the Federal Maritime Commission (“FMC”). In re The Containership Company, Case No. 11-12622 (Bankr. S.D.N.Y. Feb. 10, 2012). Continue reading

International Forum Shopping Trip Cut Short by SDNY

Judge Robert W. Sweet of the U.S. District Court for the Southern District of New York recently weighed in on the standing of a chapter 15 debtor’s foreign representative to allege a violation of the automatic stay following commencement of … Continue reading