Page 26 - US Bankruptcy Code Overview

• A foreign representative is “a person or body. . . authorized in a foreign proceeding to administer the reorganization or the liquidation of the debtor’s assets or affairs or to act as a representative of such foreign proceeding.”
11 U.S.C. § 101(24).
• The Petition for Recognition must be accompanied by:
• a certified copy of the decision commencing the foreign proceeding and appointing the foreign representative, a certificate from the foreign court affirming the existence of the foreign proceeding and of the appointment of the foreign representative, or any other evidence acceptable to the court of such existence and appointment; and
• a statement identifying all foreign proceedings involving the debtor. 11 U.S.C. §§ 1515(b), (c).
• Filing a Petition for Recognition does not subject the foreign representative to the jurisdiction of any court in the U.S. for any other purpose. 11 U.S.C. § 1510.
• A“foreignproceeding”isa“collectivejudicialoradministrativeproceedinginaforeigncountry,includinganinterim proceeding,underalawrelatingtoinsolvencyoradjustmentofdebtinwhichproceedingtheassetsandaffairsof thedebtoraresubjecttocontrolorsupervisionbyaforeigncourt,forthepurposesofreorganizationorliquidation.” 11 U.S.C. § 101(23).
• The protections afforded to a foreign debtor under the Bankruptcy Code differ depending on whether the foreign proceeding is recognized as a “foreign main proceeding” or a “foreign non-main proceeding”
• A “foreign main proceeding” is a foreign proceeding that is pending in a country where the debtor has the center of its main interests. 11 U.S.C. §§ 1502(4), 1517.
• There is a rebuttable presumption that the location of the debtor’s registered office is the center of its main interests. 11 U.S.C. § 1516(c).
• Factors considered to determine debtor’s center of main interests:
1. the location of the debtor’s headquarters;
2. the location of those who actually manage the debtor;
3. the location of the debtor’s primary assets;
4. the location of the majority of the debtor’s creditors or of a majority of the creditors who would be affected by the case; and/or
5. the jurisdiction whose law would apply to most disputes.
See In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 2007 WL 2683661 (Bankr. S.D.N.Y. Sept. 5, 2007). > UNITED STATES BANKRUPTCY CODE OVERVIEW | 23