Kutafin University Law Review

(KULawR)

academic peer-reviewed law journal


In issue 1 on 2017 year

TRANSNATIONAL INSOLVENCY 201: AN UPDATED GUIDE TO CROSS-BORDER BANKRUPTCY PROCEEDINGS

DOI: 10.17803/2313-5395.2017.1.7.110-156

Author: Hon. Sidney B. Brooks, Ethan J. Birnberg, Robert D. Lantz

Rubric: LAW OF INTERNATIONAL TREATIES

Annotation: Chapter 15 of the United States Code addresses “Ancillary and Other Cross-Border Cases.” It is complex body of law designed to facilitate cooperation between the United States and foreign countries in transnational insolvency cases. Cross-border insolvencies do not exist in a vacuum; Chapter 15 requires many courts and systems to work together and respect each country’s statutory law and common law. This article explains Chapter 15’s purpose, “terms of art,” implementation, and practical realities. U.S. courts have interpreted the law consistently and consonant with Congressional intent of promoting comity and international cooperation in transnational insolvencies. Even so, eleven years after its passage by the U.S. Congress, Chapter 15 has proven to be complicated and somewhat controversial. Case law development continues to shape application of Chapter 15, and this article addresses Chapter 15 disputes such as a debtor’s COMI, standards for eligibility when interpreting 15 U.S.C. § 109(a), and guidance for foreign representatives seeking recognition under Chapter 15.


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Keywords: U.S. courts, cross-border insolvency, cases, Chapter 15, transnational insolvency and business, international, bankruptcy, BAPCPA, comity, center of main interests, property of the estate, foreign representative, foreign proceeding, recognition, petition

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