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The Caribbean has long been a favorite location for persons seeking to shelter assets in offshore trusts as glamorized in popular culture in, among other things, books and movies such as The Firm. There is circuit court case law in the bankruptcy context that should give offshore asset protection planners pause when drafting their next trust instruments. In bankruptcy, the critical issue is the control, or lack thereof, afforded a debtor by a particular trust instrument.

Since China’s new Enterprise Bankruptcy Act came into force on June 1, 2007, the role and capacity of the newly created independent administrator has drawn broad attention among bankruptcy practitioners both in China and across borders. This is because the introduction of the independent administrator into the new bankruptcy proceedings, as the functional counterpart of the trustee under the Bankruptcy Code, is an important step towards a market economy in the insolvency area.

INTRODUCTION:

Recently the European Communication and Cooperation Guidelines For Cross-border Insolvency have been published (in our jargon called CoCo Guidelines). These Guidelines aim to overcome the cumbersome procedural model of the EC Insolvency Regulation dealing with assets of one debtor spread over several or all jurisdictions in the EU. This can add up to 26 member states (not Denmark).

Prior to its repeal with the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act, §304 provided authority for adjudicating international insolvency issues before the U.S. Bankruptcy courts where a proceeding had already been filed or would be more appropriately filed in a foreign jurisdiction. The purpose of this section was to shield American creditors and assets located within the Unites States from piecemeal distribution of assets resulting from foreign reorganization or liquidation procedures.

Case Filed Under § 304 – discussing Chapter 15

In re Atrimm, S.r.L., 335 B.R. 149 (Bankr. C.D. Cal. 2005)

There have been several articles recently published discussing and critiquing the early chapter 15 case law. [1] However, two articles in particular are worth noting. The first is entitled "A Tale of Two Proceedings: ‘Turnabout Is Fair Play’ in the Yukos U.S. Bankruptcy Cases," which discusses some of the intriguing issues presented by the Yukos chapter 11 and chapter 15 cases and their implications for future cross-border restructurings. [2] Addressing Yukos, author Kurt A.

The reform of Canada’s insolvency laws continues to move forward slowly. In an article published in a previous edition of this newsletter, I outlined the proposed amendments to Canada’s two major insolvency statutes, the Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA) under Bill C-55.

By all accounts the Chinese Bankruptcy Law needed reform, and on June 1, 2007 the new bankruptcy law will take effect. Although the old law will still apply to state-owned enterprises (SOEs) until 2008,¹ some experts believe the SOE exception for SOEs will be extended beyond 2008.

Introduction