The U.S. Bankruptcy Court for the District of Delaware recently granted recognition under chapter 15 of the Bankruptcy Code to the foreign liquidation proceedings of Saad Investments Finance Co. (No. 5) Ltd. (SIFCO 5).[1] The debtor is incorporated as an “exempted company” under the Cayman Companies Law.
Recently, the US Bankruptcy Court for the Southern District of New York, in In re Metcalfe & Mansfield Alternative Investments, held that broad nondebtor, third-party releases previously approved as part of foreign restructuring proceedings under the Canadian Companies’ Creditors Arrangement Act (CCAA) where the restructuring plan was adopted by 96 percent of its creditors would be enforced in U.S.
In In re Atlas Shipping A/S, 404 B.R. 726 (Bankr. S.D.N.Y. 2009), the U.S. Bankruptcy Court for the Southern District of New York vacated maritime attachments and ordered the turnover of funds in New York to the foreign representatives of a shipping company that was in bankruptcy in Denmark. The U.S. court rejected the attaching creditors’ contention that vacatur of the attachments could not be granted to the foreign representatives in a chapter 15 case due to the carve-out of avoidance relief in §1521(a)(7) of the U.S. Bankruptcy Code.
On Aug. 21, 2009, the U.S. Bankruptcy Court for the Eastern District of New York issued a memorandum opinion in In re Gold and Honey, Ltd.[1]denying recognition of petitions filed by receivers appointed by the Tel-Aviv-Jaffa District Court for the State of Israel. The court found that the receivers failed to meet their burden in showing that the Israeli receivership proceeding was a “foreign proceeding” within the Bankruptcy Code’s definition.
In CSL Australia Pty. Ltd. v. Britannia Bulkers PLC, et al., 2009 U.S. Dist. LEXIS 81173 (S.D.N.Y. Sept. 8, 2009), the defendant Britannia Bulkers PLC (Britannia), a Denmark corporation with its only place of business in Svendborg, Denmark, filed a motion against the plaintiff CSL, an Australian corporation with its place of business in St. Leonard’s, New South Wales, Australia, to vacate a maritime attachment issued in favor of CSL.
Jurisdictional battles are not inevitable when assets and liabilities span borders. Notwithstanding some criticism of the rigid application of standards, chapter 15 of the U.S. Bankruptcy Code has proved to be a flexible and effective tool for cross-border restructuring since its enactment in 2005.[1] A popular misconception is that a chapter 15 ancillary case is not a realistic option for a corporate group with a material U.S.
Since the new Brazilian "Bankruptcy Law" (Federal Law No. 11101) was enacted on Feb. 9, 2005, and became effective on June 9, 2005, scholars and practitioners have held wide-ranging discussions about the constitutionality of some of its provisions. The new legislation represents a paradigm shift from a legal framework dating back decades as new provisions were added to protect the rights of labor and tax claimants.
As expected, the Risk Limitation Bill (Risikobegrenzungsgesetz) passed the German Parliament (Bundestag) in July, which intends to ban stakeholders acting in unison to influence the management of a listed company concerning its future or its overall business purpose. Originally, it came under fire from financial investors for being overzealous in its quest for transparency, but further legal ramifications will affect investors of all sizes.
In June 2005, the new Brazilian Bankruptcy Law (the Law) became effective. The Law took its inspiration to some extent from chapter 11 of the Bankruptcy Code. Efforts under the previous, more rigid law (or concordata) to restructure business enterprises inevitably ended up in liquidation, which is what the Brazilian concept of bankruptcy (falência) tends to encompass. For maximum flexibility, the Law now provides for judicial reorganization, extrajudicial reorganization and liquidation.
Successful cross border asset protection and recovery efforts involve the right combination of accountancy based investigative methods, business intelligence and forensic technology expertise. This article addresses the third piece of that investigative puzzle – digital forensic methods being utilized when bank secrecy and other difficulties present barriers to collecting your evidence.