Chapter 15 Ancillary and Other Cross-Border Cases
After many years of delayed efforts, the Act finally adds a new Chapter 15 to the Bankruptcy Code, which incorporates the provisions of the UNCITRAL Model Law on Cross-Border Insolvency (adopted in May, 1997). Since 1997, strong support has existed in the United States to amend the Bankruptcy Code to modify and apply the Model Law here. However, this non-controversial cross-border amendment was held up by the "all or nothing" approach taken by Congress to the bankruptcy amendments. Eight years later, the United States adapts and adopts the Model Law, which has the goal of harmonizing procedural rules for recognition of foreign insolvency proceedings so that the various countries that enact the Model Law will have generally consistent approaches.
Big Investment Banks Win Big in Congress
The major investment banks secured a big win with the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005 (the Act). They quietly convinced Congress to remove the strongest limitation in the Bankruptcy Code (' 101(14)) on a Chapter 11 debtor's employment of an investment banker. That prohibition, in effect since the Depression, had essentially prevented the debtor's retention of a banker for any of the debtor's outstanding securities The securities industry called the statutory ban "anti-competitive."
Settlement Payments Exempted from Avoidance
Under ' 546(e) of the Bankruptcy Code (the so-called "stockbroker defense" to select voidance actions), Congress has exempted from avoidance any "settlement payment" that is made "by or to a commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency, that is made before the commencement of the case," except where the transfer is fraudulent under ' 548(a)(1)(A) of the Bankruptcy Code. 11 U.S.C. ' 546(e). So what exactly is a "settlement payment"? Prior to the BAP decision in <i>In re Grafton Partners</i>, the answer to this question was surprisingly unclear.
The Metamorphosis of Assignment Clauses in Bankruptcy
Last month, we discussed "The Debtor's Nightmare," explaining how the Fourth Circuit joined the Ninth, Third and Eleventh Circuits in adopting the "hypothetical test" in denying a debtor in possession's assumption of an executory contract under section 365 (c) of the Bankruptcy Code despite an express assignability provision in the contract. <i>RCI Tech. v. Sunterra Corp.</i> (<i>In re Sunterra Corp</i>), 361 F.3d 257 (4th Cir. 2004). This month, we continue with "the debtor's paradox."
No Time for Bankruptcy Venue Hypocrisy
Senator John Cornyn of Texas introduced the "Fairness in Bankruptcy Litigation Act of 2005" (S. 314) on Feb. 8, calling it the "end to judge shopping ..." According to the Senator, "[F]orum shopping is wrong. It distorts and corrupts our justice system." Bankruptcy Reform: Hearing on S. 256 and S. 314 Before Sen. Judiciary Comm., 2005 Legis. (Feb. 10, 2005). There may be merit to Sen. Cornyn's bill, but not in his rhetoric, driven, as the facts show, by a desire to increase his home state's market share in the competition for big bankruptcy reorganizations.
The New Code's Effect on Taxes
There are many sections of the new Bankruptcy Act that address various tax issues; some of the most important and relevant corporate changes are explored in this article.
CD: PR and Advertising: Where do you spend your marketing dollars?
Marketing oriented public relations and advertising have the same objectives ' to increase brand awareness and help pre-sell a product or message by achieving media exposure. Although both are effective in reaching trade and consumer audiences, there are significant differences in cost, control, and credibility. Our panel of experts will equip you with the information you need to understand the great benefits of both public relations and advertising.
The World Economic Forum
The hills were alive with the sound of Sarbanes-Oxley in January when the Swiss mountain resort of Davos hosted the World Economic Forum. Representatives of some of Europe's largest companies discussed the impact of the U.S. legislation on their operations, asking whether the impact of the additional regulation was worth the prestige of a New York listing or the opportunity to raise money on the world's largest capital market. It was reported that up to 60 European companies were ready to drop their U.S. listings. The following Special Issue features a roundtable discussion on what this means to U.S. and EU business.
Special Issue: A Roundtable Discussion on Leading Compliance Issues in the U.S. and EU
Throughout the world, Sarbanes-Oxley (SOX) legislation might well have had the biggest impact in corporate governance since the introduction of limited liability. To that end, jurisdictions outside the U.S. have not been idle. A recent Eversheds survey found more than 100 studies on the topic in 29 European countries within and outside the EU. Clearly, proper compliance to corporate governance guidelines is top of the list to in-house counsel across the EU, as well as the U.S. To avoid civil and criminal penalties, multinational companies have to comply with laws and principles of good governance in all of the countries where they operate. U.S. legislation attempts extra-territorial reach. That legislation is in most cases in addition to, rather than in substitution for, local law, even for NYSE-listed entities. For multinationals, then, even if SOX is the beginning of the story, it is not the end. This roundtable sought to road-test some of these issues and look to some of the U.S.'s best governed corporations to see if there is a map for the journey ahead.
