Enforcement of Foreign Orders Under Chapter 15

Transcription

1 Enforcement of Foreign Orders Under Chapter 15 Jeanne P. Darcey Amy A. Zuccarello Sullivan & Worcester LLP June 15, 2012

2 CHAPTER 15: 11 U.S.C et seq. Purpose of chapter 15 is to Provide effective mechanism for dealing with cross-border insolvencies Provide cooperation between U.S. courts and courts of foreign countries Provide greater legal certainty for trade and investment Provide fair and efficient administration that protects all creditors and interested parties, including debtor Facilitate rescue of financially troubled businesses, thereby protecting investment and preserving employment 2

3 Relief Upon Filing 1519: Upon the filing of the chapter 15 petition and before recognition, bankruptcy court may grant relief where urgently needed to protect assets of the debtor or the interest of creditors, including among other things: Issuing a stay against execution of the debtor s assets Entrusting estate assets to a foreign representatives Standards applicable to injunctions apply to relief under this section 3

4 Relief Upon Recognition 1521: Upon recognition, bankruptcy court may grant appropriate relief to protect assets of debtor and interests of creditors Court may extend any relief previously granted under 1519, including issuance of a stay Court may entrust foreign representative with distribution of assets, provided that the court is satisfied that the interests of creditors in the United States are sufficiently protected. 1521(b) 4

5 Additional Assistance 1507 (a): Provides that the court may grant additional assistance to the foreign representative 1507 (b): In determining whether to provide additional assistance, court shall consider whether, consistent with the principles of comity, such assistance will reasonably assure: Just treatment of creditors Protection of U.S. creditors against prejudice and inconvenience Prevention of preferential or fraudulent dispositions of property of the debtor Distributions of proceeds substantially in accordance with the U.S. Bankruptcy Code 5

6 Comity Recognition by courts of one jurisdiction of the laws and judicial decisions of another Principles of comity govern post-recognition relief under both 1507 and 1521 Subjective analysis; court will exercise discretion Comity is not a one-way street; rarely appropriate where foreign court has failed and refused to recognize judgments emanating from U.S. courts Factors set forth in 1507(b)(1)-(4) are elements in considering propriety of granting comity to foreign orders 6

7 Factors Just treatment of all claims against or interests in the debtor s property (b)(1): Does foreign proceeding provide a comprehensive procedure that ensures an orderly and equitable distribution of assets among creditors Inquiry should not rest on whether procedures exist, but on a factual analysis of whether procedures were followed Procedures intended to provide equitable, non-discriminatory treatment for all holders of claims against debtor 7

8 Factors Protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding (b)(2): Do U.S. creditors have the same rights and status as creditors in the foreign jurisdiction Do U.S. creditors have an opportunity to file claims and the right to be heard in the foreign jurisdiction Inconvenience of participating in a foreign proceeding given little weight 8

9 Factors Prevention of preferential or fraudulent dispositions of property of the debtor (b)(3): Chapter 15 court to consider if foreign insolvency law contains avoidance statutes giving creditors the means to prevent preferences or fraudulent transactions Determination by chapter 15 court should not rest on whether theoretical safeguards exist in the statute itself, but whether creditors had an opportunity to present such claims 9

10 Factors Distribution of proceeds of the debtor s property substantially in accordance with the order prescribed by U.S. Bankruptcy Code 1507 (b)(4): Distribution scheme need not be identical to distribution scheme under the U.S. Bankruptcy Code, but cannot be repugnant to a fundamental policy of the U.S. or render the claims of U.S. creditors unenforceable U.S. distribution scheme generally prohibits retention of value by equity stakeholders if more senior classes are not paid in full, unless senior classes consent 10

11 Public Policy Exception 1506: Nothing in this chapter prevents the court from refusing to take an action governed by this chapter if the action would be manifestly contrary to the public policy of the United States. Exception to be invoked concerning matters of fundamental importance to the United States and used sparingly Deference should be withheld where appropriate to avoid violation of laws, public policies, or rights of citizens of U.S. Focus should be on 2 factors: Was foreign proceeding procedurally unfair Does application severely impinge the value and import of a constitutional or statutory right 11

12 Recent Chapter 15 Public Policy Decisions: Granting Enforcement SNP Boat Service S.A., No (S.D. Fla. April 18, 2011). Court ruled that comity only permits U.S. court to determine if foreign law provides due process to litigants; improper for court to look on case-by-case basis what occurred in foreign proceeding Creditor asked Florida bankruptcy court to determine whether it received due process in France; SNP argued that chapter 15 court had no jurisdiction to do so, as such determination was province of the foreign court. The bankruptcy court agreed with the creditor and dismissed the chapter 15; appellate court reversed and granted enforcement of foreign decision 12

13 Recent Chapter 15 Public Policy Decisions: Granting Enforcement In re Metcalfe & Mansfield Alternative Inv., 421 B.R. 685 (Bankr. S.D.N.Y. 2010). Bankruptcy court granted comity to Canadian reorganization plan that included third-party releases that generally could not be granted in a U.S. bankruptcy proceeding Court concluded that 1506 did not bar enforcement of thirdparty releases because the Canadian court had statutory authority to grant the relief, reorganization plan was overwhelmingly supported by noteholders (96%) and there was no challenge to enforcement in the U.S. 13

14 Recent Chapter 15 Public Policy Decisions: Granting Enforcement In re Ephedra Prods. Liability Litig., 349 B.R. 333 (S.D.N.Y. 2006). Court determined to enforce a Canadian claims resolution procedure that denied U.S. claimants the right to a jury trial Court narrowly construed public policy exception Court found that the Canadian procedure ensured American claimants a fair and impartial forum in which to adjudicate their claims 14

15 Recent Chapter 15 Public Policy Decisions: Denying/Conditioning Enforcement In re Sivec SRL, No TRC, 2011 WL (Bankr. E.D. Okla. August 18, 2011). Court was concerned that debtor in Italian insolvency proceedings failed to give U.S. creditor notice and opportunity to be heard in the liquidation proceeding or grant any assurances of protection Although court refused to deny recognition to the foreign proceeding, relying on section 1506, the court modified stay to permit creditor to continue its litigation against debtor in order to obtain a recovery 15

16 Recent Chapter 15 Public Policy Decisions: Denying Enforcement In re Toft, 453 B.R. 186 (Bankr. S.D.N.Y. 2011). Court applied public policy exception to prohibit interception of individual s mail (physical and electronic) in the U.S., despite orders permitting such interception by Germany court Court found recognition would be manifestly contrary to United States public policy by resulting in a violation of privacy rights, and denied the request for chapter 15 recognition of the German proceeding 16

17 Recent Chapter 15 Public Policy Decisions: Denying Enforcement In re Qimonda AG, 433 B.R. 547, (E.D. Va. 2010). Court set forth three guiding principles in analyzing whether action is manifestly contrary to public policy of the United States: (1) exception only implicated when conflict between foreign law and U.S. law exists or there is procedural unfairness in the foreign proceeding; (2) if section 1506 is implicated, court should examine whether foreign proceeding provided adequate protection to procedural rights of the parties; and (3) if procedural fairness is not issue, then court should examine extent to which taking requested action under chapter 15 would frustrate U.S. court's ability to administer chapter 15 proceeding or would impinge severely a U.S. constitutional or statutory right 17

18 Qimonda (con t) Bankruptcy court applied public policy exception in determining that patent licensees should be able to retain licenses under 365(n), where German law would permit administrator to reject such contracts and eliminate licensee s rights. Court considered legislative history of 365(n), as well as expert testimony that eliminating licensees' protections under 365(n) would result in greater uncertainty and decreased investment Ultimately, court determined that depriving patent licensees of protections under 365(n) would undermine a fundamental U.S. public policy promoting technological innovation, and held that 365(n) must apply to administration of the U.S. patent licenses in the chapter 15 case 18

19 Recent Chapter 15 Public Policy Decisions: Denying Enforcement In re Gold & Honey, Ltd., 410 B.R. 357 (Bankr. E.D.N.Y. 2009). Public policy exception invoked by receivers who were appointed in Israel after the commencement of a chapter 11 case in U.S. involving the same debtor. Creditor who commenced the receivership in Israel had appeared in U.S. case and continued to prosecute its application in Israel despite finding by U.S. court that the automatic stay prohibited such action Court refused to recognize the foreign proceeding in part because recognition of the Israeli proceeding would amount to a reward for manipulation of the automatic stay 19

20 Other Chapter 15 Public Policy Decisions A number of other cases have applied 1506 without much discussion and in most circumstances, have rejected application of the public policy exception: In re Grant Forest Prod., Inc., 440 B.R. 616, 622 (Bankr. D. Del. 2010) (holding that a judgment entered in a Canadian proceeding authorizing administrator to sign tax returns for the foreign debtor s U.S. subsidiaries without tax liability did not violate a fundamental U.S. tax policy) In re Fairfield Sentry Ltd., 440 B.R. 60, 67 (Bankr. S.D.N.Y. 2010) (refusing to apply 1506 to lift automatic stay for a New York derivative action because doing so would be wasteful, unnecessary, and value destructive litigation.... ) 20

21 Other Chapter 15 Public Policy Decisions In re ABC Learning Ctrs. Ltd., 445 B.R. 318, (Bankr. D. Del. 2010) (recognizing Australian bankruptcy to proceed over creditors objection where debtor was involved in pending litigation in American state courts, because the foreign bankruptcy was filed in good faith and the debtor received no additional protections in Australian court) In re British American Isle of Venice, 441 B.R. 713, (Bankr. S.D. Fla. 2010) (recognizing foreign proceeding despite liquidator s conflicting fiduciary duty to debtor s largest creditor because minority creditors had the opportunity to litigate the issue in the foreign court and chose not to) In re Ernst & Young, Inc., 383 B.R. 773, (Bankr. D. Colo. 2008) (holding that a smaller distribution to U.S. creditors in a foreign court, by itself, is insufficient to invoke the public policy exception). 21

22 Vitro S.A.B. de C.V. Trial week of June 4, 2012 in Bankruptcy Court in Northern District of Texas; decision anticipated by June 15, 2012 The key determination required by this Court is whether the procedures used in Mexico meet the fundamental standards of fairness in the United States. So on June 4, 2012, this Court will conduct a trial as to whether the procedures used in Mexico are fundamentally fair and whether any aspect of the approved plan, sought to be enforced in this country, is manifestly contrary to the public policy of the United States. April 4, 2012 Order Regarding Scope of Trial and Scope of Proceeding. Bankruptcy Judge has determined that decision properly subject to direct appeal to the 5th Circuit and anticipates such appeal to be accepted by that court 22

23 Conclusion Chapter 15 stresses importance of comity and public policy exception is rarely invoked; however exception applies if foreign proceeding fails to take steps to protect the rights of U.S. parties. Toft, Sevic, Qimonda and Gold & Honey: While principles of comity are important, U.S. bankruptcy courts will not act as a rubber stamp. When fundamental policies are at issue, creditors may challenge the relief sought by a foreign representative. Ultimately, recognition of a foreign proceeding and/or the relief requested is dependent on the facts and circumstances of the particular case. 23

24 The Authors Jeanne P. Darcey Sullivan & Worcester LLP One Post Office Square Boston, MA TEL: Jeanne P. Darcey is a partner in the Bankruptcy & Restructuring Group in the Boston office. Ms. Darcey has high-level and varied experience representing debtors, secured and unsecured creditors, indenture trustees and bondholders in out-of-court workouts, liquidations, creditor assignments and Chapter 11 proceedings. Ms. Darcey also advises clients acquiring assets out of bankruptcy, and with respect to structuring transactions, she often advises clients about litigation and other strategic alternatives involving high-yield or defaulted securities, and rights of licensors and licensees of intellectual property in bankruptcy. Ms. Darcey lectures often on bankruptcy issues most recently participating on a panel on "Lessons Learned from Around the World Recent Bondholder and Indenture Trustees issues from the U.S., Canada, U.K., France, Mexico and Beyond" at the American Bar Association, Business Law Spring Meeting (March 2012). Ms. Darcey has also lectured and moderated panels for The World Law Group, the Massachusetts Bar Association, the American Bankruptcy Institute, the Boston Bar Association and the International Women s Insolvency & Restructuring Confederation. Ms. Darcey served as the chair of the Corporate Restructuring and Bankruptcy Practice Group of the World Law Group for 2008 and 2009 and currently serves as co-chair for the Trust Indentures sub-committee of the American Bar Association's Business Bankruptcy Session and as co-chair of the Boston Bar Association s Bankruptcy Section. 24

25 The Authors Amy A. Zuccarello Sullivan & Worcester LLP One Post Office Square Boston, MA TEL: Amy A. Zuccarello is counsel in the Bankruptcy & Restructuring Group of Sullivan & Worcester's Boston office. She is also a member of the firm's Hiring Committee and an adjunct professor of law at Boston University School of Law. Ms. Zuccarello practices in the areas of business restructuring, workout and bankruptcy. She represents creditors, including indenture trustees, lenders and bondholders in complex debt restructurings and insolvency matters. She has vast transactional experience in commercial aircraft transactions, including restructurings, aircraft sales and leases and both public and private asset securitizations. Ms. Zuccarello has extensive experience in structuring and conducting UCC (Article 9) foreclosure sales with respect to a variety of collateral types. She has also advised lenders on compliance with banking and consumer disclosure laws. 25

26 Offices 26