Readers may be familiar with the continuing debates over universalism (one court and one insolvency law) vs. territorialism (many courts and many insolvency laws) that have dominated discussions of cross-border insolvencies in recent years.[1] Realizing that true universalism is an ideal that is unlikely to come to pass in the real world, universalists have generally embraced a modified universalism that acknowledges circumstances that make it proper and (practically and politically) necessary to recognize and protect certain local interests.
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Editor’s note: This article relies on a translation of the EBL provided by the Bankruptcy Law and Restructuring Research Center of China University of Politics and Law, as supervised by Prof. Li Shuguang, September 2006.
[1]Chapter 15 of the Bankruptcy Code was enacted in 2005 to implement the Model Law on Cross-Border Insolvency formulated by the United Nations Commission on International Trade Law (UNCITRAL). Part of the reason for needing a U.S. implementation of the Model Law was in recognition of the mutli-national presences of many entities, and thus the need for multi-national solutions for insolvencies of these entities.[2]
As complex restructurings increasingly implicate cross-border considerations, other countries’ insolvency laws have become increasingly more relevant to practitioners in the U.S. This article will focus on creditors’ in various jurisdictions to provide a better understanding of how foreign creditors protect their rights in an insolvency proceeding.
Brazilian Federal Law No. 12.846/13 (the “Anti-Corruption Law”), which became effective on Jan. 29, 2014, establishes the civil and administrative liability of legal entities for acts that are harmful to the public administration, and applies to both domestic and foreign entities.
A recent decision by the Second Circuit Court of Appeals in Drawbridge Special Opportunities Fund LP v. Barnet,[1] which found that the bankruptcy court should not have granted chapter 15 recognition to the foreign insolvency proceeding of an Australian company, adds to the growing body of recent case law evidencing that courts will evaluate the relief a foreign representative seeks under the established standards and requirements applicable to cases under other chapters of the Bankruptcy Code.
German corporate bankruptcy law will soon undergo a major reform when the proposed Gesetz zur weiteren Erleichterung der Sanierung von Unternehmen (ESUG, or the Company Restructuring Facilitation Act) passes through legislation.
A new law recently published in Brazil will facilitate the making of new investments with limited liability. Federal Law No. 12,441, enacted on July 11, 2011 (Law 12,441), amended certain provisions of the Brazilian Civil Code (Federal Law No.
On April 19, 2011, the High Court of England and Wales heard an application for the sanction of a scheme of arrangement for Rodenstock GmbH, a solvent German company. Two days later, the court entered an order sanctioning the scheme, and indicating that Mr. Justice Briggs’ reasoning would be provided in a reserved judgment.
On June 14, 2010, the joint liquidators of Fairfield Sentry Ltd.—the largest Madoff “feeder fund”—filed a chapter 15 petition with the U.S. Bankruptcy Court for the Southern District of New York seeking recognition of the fund’s British Virgin Islands (BVI)-based insolvency proceedings.
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