Law.com Subscribers SAVE 30%
Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.
The Domesticity Barrier to Recognition of a Foreign Proceeding Under Chapter 15
This past April, in In re B.C.I. Finances Pty Limited, 583 B.R. 288 (Bankr. S.D.N.Y. 2018), Judge Sean Lane reiterated the low domestic presence threshold (Domesticity) that a foreign representative must meet when it is petitioning for recognition of a foreign proceeding under Chapter 15. While Judge Lane's decision was consistent with a developing body of case law that has generally accepted this low Domesticity threshold, it is significant because it: 1) arises out of the Second Circuit, whose precedent requires that the petition for recognition meets the requirements of both Section 1517 and Section 109(a) of the Bankruptcy Code before it may be granted; and 2) shows that even with the additional Domesticity requirement of Section 109(a), a foreign representative can successfully obtain recognition of a foreign proceeding with only a nominal domestic presence.
In B.C.I. Finances, the foreign representative was held to have met the Domesticity requirement of Section 109(a) because the debtor possessed breach of fiduciary duty claims whose situs was the United States. Similarly, other bankruptcy court decisions have held that cash and investment accounts, account receivables and attorney retainers are sufficient enough to meet the Domesticity requirement set forth in Section 109(a); namely, that the debtor reside or have a domicile, a place of business or property in the United States. 11 U.S.C. §109(a).
Background of Chapter 15
Chapter 15, entitled “Ancillary and Other Cross-Border Cases,” was added to the Bankruptcy Code with the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, replacing former 11 U.S.C. §304 to govern cases of cross-border insolvency. Chapter 15 incorporates the Model Law on Cross-Border Insolvency, which was promulgated by the United Nations Commission on International Trade Law in 1997 to encourage cooperation between the United States and foreign countries with respect to transnational insolvency cases. See, House Report No. 109-31, Pt. 1, 109th Cong., 1st Sess. 105-106 (Apr. 8, 2005), reprinted in 2005 U.S.C.C.A.N. 88, 169.
This premium content is locked for Entertainment Law & Finance subscribers only
ENJOY UNLIMITED ACCESS TO THE SINGLE SOURCE OF OBJECTIVE LEGAL ANALYSIS, PRACTICAL INSIGHTS, AND NEWS IN ENTERTAINMENT LAW.
- Stay current on the latest information, rulings, regulations, and trends
- Includes practical, must-have information on copyrights, royalties, AI, and more
- Tap into expert guidance from top entertainment lawyers and experts
Already a have an account? Sign In Now Log In Now
For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.