NY District Court Rules That Chapter 15 Recognition Not Required To Enforce Foreign Bankruptcy Injunction – Insolvency/Bankruptcy/Re-structuring -…

U.S. courts have a long-standing tradition of recognizing orenforcing the laws and court rulings of other nations as anexercise of international "comity." It has been generallyunderstood that recognition of a foreign bankruptcy proceedingunder chapter 15 is a prerequisite to a U.S. court enforcing, underthe doctrine of comity, an order or judgment entered in a foreignbankruptcy proceeding or a provision in foreign bankruptcy lawapplicable to a debtor in such a proceeding.

A ruling recently handed down by the U.S. District Court for theSouthern District of New York directly challenges this principle,which has existed since chapter 15 was enacted in 2005. InMoyal v. Munsterland Gruppe GmbH & Co., 2021 WL1963899 (S.D.N.Y. May 17, 2021), the court dismissed litigationagainst a German company, finding that, under principles of comity,the lawsuit was stayed by operation of German law when the companyfiled for bankruptcy in Germany. The district court did so despitethe absence of any order issued by a U.S. bankruptcy courtrecognizing the German bankruptcy proceeding under chapter 15.

"Comity" is "the recognition which one nationallows within its territory to the legislative, executive orjudicial acts of another nation, having due regard both tointernational duty and convenience, and to the rights of its owncitizens or of other persons who are under the protection of itslaws." Hilton v. Guyot, 159 U.S. 113, 164 (1895).International comity has been interpreted to include two distinctdoctrines: (i) "legislative," or"prescriptive," comity; and (ii) "adjudicativecomity." Maxwell Comm'n Corp. v. SocitGnrale (In re Maxwell Comm'n Corp.), 93F.3d 1036, 1047 (2d Cir. 1996).

The former "shorten[s] the reach of a statute"-onenation will normally "refrain from prescribing laws thatgovern activities connected with another state when the exercise ofsuch jurisdiction is unreasonable." Official Comm. ofUnsecured Creditors of Arcapita Bank B.S.C.(C) v. Bahrain IslamicBank (In re Arcapita Bank B.S.C.(C)), 575 B.R. 229, 237(Bankr. S.D.N.Y. 2017).

"Adjudicative comity," or "comity amongcourts," is an act of deference whereby the court of onenation declines to exercise jurisdiction in a case that is properlyadjudicated in a foreign court. Because a foreign nation'sinterest in the equitable and orderly distribution of a foreigndebtor's assets is an interest deserving respect and deference,U.S. courts generally defer to foreign bankruptcy proceedings anddecline to adjudicate creditor claims that are the subject of suchproceedings. See Canada Southern Railway Co. v. Gebhard,109 U.S. 527, 548 (1883) ("the true spirit of internationalcomity requires that [foreign schemes of arrangement], legalized athome, should be recognized in other countries"); accord Inre Int'l Banking Corp. B.S.C., 439 B.R. 614, 624 (Bankr.S.D.N.Y. 2010) (citing cases).

Prior to 2005, as an exercise of comity, U.S. courts regularlyenforced stays of creditor collection efforts against a foreigndebtor or its U.S. assets issued in connection with foreignbankruptcy proceedings. See, e.g., Philadelphia Gear Corp. v.Philadelphia Gear de Mexico, S.A., 44 F.3d 187 (3d Cir. 1994)(deferring to Mexican bankruptcy proceeding); Badalament, Inc.v. Mel-O-Ripe Banana Brands, Ltd., 265 B.R. 732 (E.D. Mich.2001) (deferring to Canadian bankruptcy proceeding); LindnerFund, Inc. v. Polly Peck Int'l PLC, 143 B.R. 807 (S.D.N.Y.1992) (citing cases and dismissing litigation brought in U.S.against UK company that was debtor in UK insolvency proceedings);Cornfeld v. Investors Overseas Services, Ltd., 471 F.Supp. 1255 (S.D.N.Y. 1979) (deferring to Canadian bankruptcyproceeding), aff'd, 614 F.2d 1286 (2d Cir. 1979).

In many such cases, U.S. courts recognized and enforced thestays of foreign courts in granting relief in an "ancillaryproceeding" brought by the representative of a foreign debtorunder section 304 of the Bankruptcy Code-the repealed precursor tochapter 15 of the Bankruptcy Code. Section 304 expressly authorizeda U.S. bankruptcy court to enjoin the commencement or continuationof any action against a foreign debtor with respect to propertyinvolved in a foreign bankruptcy case. See, e.g., JP MorganChase Bank v. Altos Hornos de Mexico S.A. de C.V., 412 F.3d418 (2d Cir. 2005); Cunard S.S. Co. v. Salen Reefer Servs.AB, 773 F.2d 452 (2d Cir. 1985); Hoffman v. Joint OfficialLiquidators (In re Nat'l Warranty Ins. Risk RetentionGrp.), 306 B.R. 614 (B.A.P. 8th Cir.), aff'd, 384F.3d 959 (8th Cir. 2004).

However, an ancillary proceeding under section 304 was "notthe exclusive remedy for foreign debtors opposing actions by localcreditors against assets located in the United States."Hembach v. Quikpak Corp., 1998 WL 54737, *4 (E.D. Pa. Jan.8, 1998). The foreign representative could request that the U.S.court recognize foreign bankruptcy proceedings as a matter ofinternational comity, without seeking relief under section 304.See Interpool, Limited v. Certain Freights of the M/VS VentureStar, Mosman Star, Fjord Star, Lakes Star, Lily Star, 878 F.2d111 (3d Cir. 1989); Remington Rand Corporation-Delaware v.Business Sys. Inc., 830 F.2d 1260, 1267-68 (3d Cir. 1987)(section 304 "expresse[d] Congressional recognition of anAmerican policy favoring comity for foreign bankruptcy proceedings... [and was] not the exclusive source of comity"); In reEnercons Virginia, Inc., 812 F.2d 1469, 1471-72 (4th Cir.1987); see generally Collier on Bankruptcy("Collier") 1509.02 (16th ed. 2021) ("Thus,foreign representatives could, theoretically at least, try theirluck in a variety of courts, with failure in one not precluding asecond try in another.").

Prior to the enactment of chapter 15, many courts examinedwhether a foreign proceeding was "procedurally fair" anddid not violate U.S. law or public policy in assessing whether aU.S. court should defer to the proceeding under principles ofcomity. See, e.g., JP Morgan Chase Bank v. AltosHornos de Mexico, S.A. de C.V., 412 F.3d 418, 428 (2d Cir.2005); In re Artimm, S.r.L., 335 B.R. 149, 161 (Bankr.C.D. Cal. 2005).

The enactment of chapter 15 in 2005 changed the requirements forseeking recognition and enforcement in the United States of foreignbankruptcy court orders or laws impacting a foreign debtor or itsU.S. assets.

Under section 1515 of the Bankruptcy Code, a "foreignrepresentative" may file a petition in a U.S. bankruptcy courtseeking "recognition" of a "foreignproceeding." A "foreign representative" is definedin section 101(24) of the Bankruptcy Code as:

[A] person or body, including aperson or body appointed on an interim basis, authorized in aforeign proceeding to administer the reorganization or theliquidation of the debtor's assets or affairs or to act as arepresentative of such foreign proceeding.

A "foreign proceeding" is defined in section 101(23)of the Bankruptcy Code as:

[A] collective judicial oradministrative proceeding in a foreign country, including aninterim proceeding, under a law relating to insolvency oradjustment of debt in which proceeding the assets and affairs ofthe debtor are subject to control or supervision by a foreigncourt, for the purpose of reorganization or liquidation.

More than one bankruptcy or insolvency proceeding may be pendingwith respect to the same foreign debtor in different countries.Chapter 15 therefore contemplates recognition in the United Statesof both a "foreign main proceeding"-a case pending in thecountry where the debtor's center of main interests("COMI") is located (see 11 U.S.C. 1502(4))-and "foreign nonmain proceedings" pending incountries where the debtor merely has an "establishment"(see 11 U.S.C. 1502(5)).

Upon recognition of a foreign main proceeding, section 1520(a)provides that certain provisions of the Bankruptcy Codeautomatically come into force, including section 362, which imposesan automatic stay preventing creditor collection efforts withrespect to the debtor or its U.S. assets. If the bankruptcy courtrecognizes a foreign proceeding as either a main or nonmainproceeding, section 1521(a) authorizes the court to grant a broadrange of provisional and other relief designed to preserve theforeign debtor's assets or otherwise provide assistance to thecourt or other entity presiding over the debtor's foreignproceeding.

Section 1509(b) provides that, if a U.S. bankruptcy courtrecognizes a foreign proceeding, the foreign representative mayapply directly to another U.S. court for appropriate relief, and aU.S. court "shall grant comity or cooperation to the foreignrepresentative." Section 1509(c) accordingly specifies that aforeign representative's request for comity or cooperation fromanother U.S. court "shall be accompanied by a certified copyof an order granting recognition" under chapter 15.

If a U.S. bankruptcy court denies a petition for recognition ofa foreign proceeding, section 1509(d) authorizes the court to"issue any appropriate order necessary to prevent the foreignrepresentative from obtaining comity or cooperation" fromother U.S. courts. However, a foreign representative's failureto commence a chapter 15 case or to obtain recognition does notprevent the foreign representative from suing in a U.S. court"to collect or recover a claim which is the property of thedebtor." 11 U.S.C. 1509(f). Indeed, section 1509's"requirement of prior permission by way of recognition by abankruptcy court deals only with acts by a foreign representativewho needs the assistance of a court in the United States. Nothingin the statute requires prior judicial permission for acts that donot implicate matters of comity or cooperation by courts."In re Iida, 377 B.R. 243, 258 (B.A.P. 9th Cir. 2007).

These provisions reflects lawmakers' intention that chapter15 be the "exclusive door to ancillary assistance to foreign[restructuring or insolvency] proceedings," with the goal ofcontrolling such cases in a single court. Collier at 1509.03(quoting H.R. Rep. No. 109-31(I), 110 (2005) ("Parties wouldbe free to avoid the requirements of [chapter 15] and the expertscrutiny of the bankruptcy court by applying directly to a state orFederal court unfamiliar with the statutory requirements.... Thissection concentrates the recognition and deference process in oneUnited States court, ensures against abuse, and empowers a courtthat will be fully informed of the current status of all foreignproceedings involving the debtor.").

Therefore, unlike practice before the enactment of chapter 15,the vast majority of courts have held that a foreign representativemust comply with the requirements of chapter 15 to obtain thevarious forms of relief or assistance contemplated by the chapter,including a stay or dismissal of U.S. court proceedings against aforeign debtor or its assets. See Halo Creative Design Ltd. v.Comptoir Des Indes Inc., 2018 WL 4742066 (N.D. Ill. Oct. 2,2018); Oak Point Partners, Inc. v. Lessing, 2013 WL1703382 (N.D. Cal. Apr. 19, 2013); Orchard Enter. NY, Inc. v.Megabop Records Ltd., 2011 WL 832881 (S.D.N.Y. Mar. 4, 2011);Econ. Premier Assurance Co. v. CPI Plastics Grp., Ltd.,2010 WL 11561369 (W.D. Ark. June 7, 2010); Reserve Int'lLiquidity Fund, Ltd. v. Caxton Int'l Ltd., 2010 WL 1779282(S.D.N.Y. Apr. 29, 2010); Andrus v. Digital Fairway Corp.,2009 WL 1849981 (N.D. Tex. June 26, 2009); U.S. v. J.A. JonesConst. Grp., LLC, 333 B.R. 637 (E.D.N.Y. 2005); Iida v.Kitahara (In re Iida), 377 B.R. 243 (B.A.P. 9th Cir. 2007);In re Loy, 380 B.R. 154 (Bankr. E.D. Va. 2007).

However, a handful of U.S. courts have determined that chapter15 recognition is not necessary to enforce foreign bankruptcy orinsolvency court orders. For example, in In EMA Garp Fund v.Banro Corp., 2019 WL 773988 (S.D.N.Y. Feb. 21, 2019), thecourt dismissed litigation against a Canadian company and itsformer CEO, finding that, under principles of comity, the lawsuitwas barred by Canadian court orders approving the company'sCanadian bankruptcy proceeding and releasing all claims against thedefendants. The district court did so despite the absence of anyorder issued by a U.S. bankruptcy court recognizing the Canadianbankruptcy proceeding under chapter 15.

Notably, the district court wrote that "the fact thatDefendants did not file a recognition proceeding in [a] U.S.court" was "irrelevant" to its comity determination.2019 WL 773988, at *5 (citing Allstate Life Ins. Co. v. LingerGroup Ltd., 994 F.2d 996, 999 (2d Cir. 1993); Victrix S.S.Co., S.A. v. Salen Dry Cargo A.B., 825 F.2d 709, 714 (2d Cir.1987)). According to the district court, the defendants "wereunder no obligation to file anything in U.S. courts in order toearn [comity] for the Canadian courts." Id. (citingHilton, 159 U.S. at 164); see also OuiFinancing v. Dellar, 2013 WL 5568732 (S.D.N.Y. Oct. 9, 2013)(enforcing as a matter of comity a stay entered in a Frenchsafeguard proceeding with no mention of chapter 15); Bickertonv. Bozel S.A. (In re Bozel S.A.), 434 B.R. 86 (Bankr. S.D.N.Y.2010) (without mentioning section 1509(b), allowing a liquidatorappointed in the British Virgin Islands ("BVI")liquidation proceedings of a BVI company to seek relief in thechapter 11 case of its subsidiary).

As noted, if there is no foreign representative seeking theassistance of a U.S. court in enforcing an order entered in anon-U.S. bankruptcy proceeding, chapter 15 recognition is notnecessary. See generally Collier at 1509.02 (notingthat "courts regularly rule that chapter 15 recognition is nota prerequisite to grant comity to foreign proceedings on therequest of a party other than a foreign representative"). Forexample, in Trikona Advisers Ltd. v. Chugh, 846 F.3d 22(2d Cir. 2017), the U.S. Court of Appeals for the Second Circuitaffirmed a district court ruling giving collateral estoppel effectto the findings of a foreign insolvency court, even though nochapter 15 petition had been filed in the United States on behalfof the foreign debtor seeking recognition of its Cayman Islandswinding-up proceeding. According to the Second Circuit, because theparty seeking such relief was not a "foreignrepresentative" under chapter 15, the provisions of chapter 15simply did not apply, but the district court nonetheless did noterr in granting comity to the foreign insolvency court'sfactual findings. Accord Barclays Bank PLC v.Kemsley, 44 Misc. 3d 773 (N.Y. Sup. 2014) (chapter 15recognition was not necessary to enforce, at the request of anindividual debtor, a discharge order in a UK bankruptcy proceeding,even though a U.S. bankruptcy court previously denied the UKbankruptcy trustee's petition for chapter 15 recognition of thebankruptcy, because chapter 15's plain language applies only toa "foreign representative" such as a trustee).

In February 2019, David Moyal ("Moyal") suedMnster, Germany-based Mnsterland Gruppe GmBH & Co.KG ("MGKG") in N.Y. state court for breach of adistribution agreement. After the litigation was removed to federaldistrict court, MGKG agreed to the entry of a default judgmentbecause it lacked the resources to defend the U.S. action as wellas anticipated litigation to enforce the judgment in Germany.However, MGKG reserved the right to contest the amount of thedamages.

In March 2021, MGKG and its general partner filed a bankruptcyproceeding in a German court, which appointed an insolvencyadministrator for the debtors. The filing triggered an automaticstay of all litigation against MGKG under German law.

MGKG then filed a motion to dismiss or stay the U.S. districtcourt litigation due to the pending German bankruptcy proceeding.Moyal opposed the motion, arguing that, among other things: (i)MGKG's attorney lacked the authority to file the motion becausehe was stripped of any such authority upon the company'sbankruptcy filing; (ii) MGKG's insolvency administrator shouldhave filed a chapter 15 petition for the purpose of seekinginjunctive relief on the company's behalf; and (iii) Moyal didnot receive "formal notice" of the Germany bankruptcyproceeding.

The district court dismissed the litigation based uponprinciples of comity. In so ruling, Magistrate Judge Stewart D.Aaron applied the "procedural fairness" analysis commonlyused by U.S. courts prior to the enactment of chapter 15 in 2005.For support, he cited several pre-chapter 15 decisions addressingcomity.

Judge Aaron found that German insolvency laws "comport withdue process and fairly treat claims of [U.S.] creditors"(quoting Victrix, 825 F.2d at 714) because: (i) the Germancourt shared the U.S. policy of equal distribution of assets; (ii)German law mandated the issuance of a stay; and (iii) German law"makes no distinction between, and gives no preference to,claims by foreign or German creditors based on theirnationality." In addition, Judge Aaron rejected Moyal'sarguments that he received inadequate notice of the Germanbankruptcy proceeding and that MGKG's counsel lacked theauthority to file the motion. According to the judge, the factsbelied Moyal's inadequate notice claim, and MGKG's attorneywas still counsel of record at the time he filed the motion.

Notably, in a footnote, Judge Aaron wrote that"[Moyal's] suggestion that the insolvency [administrator]should have commenced a proceeding in U.S. bankruptcy court underChapter 15 of the Bankruptcy Code to seek a stay of this action inthe District Court is absurd and would fly in the face of comityprinciples." Moyal, 2021 WL 1963899, at *3 n.1(citing Collier at 1509.02 ("[C]ourts regularly rulethat chapter 15 recognition is not a prerequisite to grant comityto foreign proceedings on the request of a party other than aforeign representative.").

The district court's ruling in Moyal cuts againstthe grain on the question of whether chapter 15 recognition is aprerequisite for relief from U.S. courts on the basis of comity incases involving a foreign bankruptcy proceeding. As noted, the vastmajority of courts considering the question have ruled to thecontrary in keeping with the plain language and purpose of chapter15.

Interestingly, the cases relied upon by the district court inMoyal in concluding that chapter 15 recognition wasunnecessary were decided prior to the enactment of chapter 15. Bycontrast, the court does not discuss any of the plethora ofpost-enactment court rulings requiring chapter 15 recognition as aprerequisite to comity. Instead, Judge Aaron reasoned thatrecognition was unnecessary because no "foreignrepresentative" was seeking relief in connection with aforeign bankruptcy case.

The problem with this rationale is that MGKG was a debtor in aforeign bankruptcy proceeding and the relief sought-dismissal or aninjunction-was in furtherance of German law and the Germanbankruptcy. Like its attorney, who the court permitted to withdrawas counsel because he lost the authority to represent the companyas of the date it filed for bankruptcy, MGKG lacked the authorityto continue prosecuting the U.S. litigation notwithstanding thefact that MGKG filed the motion to dismiss or stay after the Germanproceeding was commenced. The German court vested sole authority torepresent MGKG in the insolvency administrator after MGKG'sbankruptcy filing. Accordingly, any relief as a form of assistanceto the German bankruptcy proceeding should have been sought by theinsolvency administrator, who was MGKG's "foreignrepresentative" within the meaning of section 101(24) of theBankruptcy Code and the only person with authority to represent thedebtor in the United States.

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NY District Court Rules That Chapter 15 Recognition Not Required To Enforce Foreign Bankruptcy Injunction - Insolvency/Bankruptcy/Re-structuring -...