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ARC CAPITAL, LLC v. ASIA PACIFIC LIMITED ET AL.
(AC 39319)
DiPentima, C. J., and Bright and Bishop, Js.
Syllabus
The plaintiff company brought this action seeking to enforce a judgment
rendered in the Grand Court of the Cayman Islands awarding the plaintiff
the attorney’s fees and litigation expenses it had incurred in a prior
action against the defendant A Co. and its principal, K, arising out of the
winding up of a business venture. The trial court granted the defendants’
motion to dismiss the present action for lack of subject matter jurisdic-
tion, concluding that the foreign judgment that the plaintiff sought to
enforce could only be enforced through chapter 15 of the United States
Bankruptcy Code. From the judgment of dismissal rendered thereon,
the plaintiff appealed to this court. Held that the trial court erred in
concluding that chapter 15 of the United States Bankruptcy Code pre-
vented it from deciding this action: the present action did not fall within
any of the limited situations outlined in the federal statute (11 U.S.C.
§ 1501 [b]) requiring that a bankruptcy court in the United States approve
an application for recognition from a foreign representative before for-
eign liquidation proceedings could be recognized in United States courts,
as chapter 15 does not apply when a court in the United States simply
gives preclusive effect to factual findings from an otherwise unrelated
foreign liquidation proceeding, and here, the plaintiff alleged in its com-
plaint that it is a corporation incorporated in the United States, not a
foreign representative as defined by the Bankruptcy Code, and the pre-
sent action was brought by the plaintiff as a private party to enforce a
money judgment that was unconnected to any foreign or United States
bankruptcy proceeding.
Argued November 29, 2017—officially released March 6, 2018
Procedural History
Action to, inter alia, enforce a foreign judgment, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Hon. Rich-
ard P. Gilardi, judge trial referee, granted the plaintiff’s
application for a prejudgment remedy; thereafter, the
matter was transferred to the Superior Court in the
judicial district of Hartford, Complex Litigation Docket,
where the court, Miller, J., granted the defendants’
motion to dissolve the prejudgment remedy; subse-
quently, the court, Miller, J., granted the defendants’
motion to dismiss and rendered judgment thereon, from
which the plaintiff appealed to this court. Reversed;
further proceedings.
Jillian McNeil, pro hac vice, with whom were Stefan
Savic and, on the brief, John G. Balestriere, pro hac
vice, for the appellant (plaintiff).
Andrew B. Bowman, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. The plaintiff, ARC Capital, LLC,
appeals from the judgment of the trial court dismissing,
for lack of subject matter jurisdiction, this action
against the defendants, Asia Pacific Limited (Asia
Pacific) and Aashish Kalra, to enforce a judgment ren-
dered in the Grand Court of the Cayman Islands (Cay-
man court). On appeal, the plaintiff claims that the
court erred in concluding that the judgment the plaintiff
sought to enforce could be enforced only through chap-
ter 15 of the United States Bankruptcy Code; see 11
U.S.C. § 1501 et seq. (2012); and, therefore, improperly
dismissed the action for lack of subject matter jurisdic-
tion. We agree with the plaintiff and reverse the judg-
ment of the trial court.
Knowledge of the following undisputed facts, as set
forth by the United States Court of Appeals for the
Second Circuit in the related case of Trikona Advisors
Ltd. v. Chugh, 846 F.3d 22 (2017), is necessary for the
resolution of this appeal. ‘‘[Trikona Advisors Ltd. (TAL)]
is an investment advisory company. Its two beneficial
owners, [Rakshitt] Chugh and Aashish Kalra, formed
the company in 2006 as a vehicle for helping foreign
investors invest in Indian real estate and infrastructure.
Each man held a [50] percent equity stake in TAL
through entities controlled by them. Chugh’s shares
were owned by ARC Capital LLC . . . and Haida
Investments . . . and Kalra’s shares were owned by
Asia Pacific Investments, Ltd.’’ Id., 26. By 2009, the
relationship between Chugh and Kalra had deteriorated
to the point where they could no longer work together.
Id., 27. Eventually, TAL’s board of directors voted to
remove Chugh as a director, leaving Kalra to treat TAL
and its assets as his own. Id.
‘‘On February 13, 2012, ARC [Capital, LLC] and Haida
[Investments], which held Chugh’s TAL shares and were
controlled by Chugh, filed a petition in the [Cayman
court] seeking to ‘wind up’ TAL, a Cayman corporation.
The [petition] sought to liquidate the business and
divide its assets between Chugh and Kalra. Asia Pacific,
which held Kalra’s TAL shares and was controlled by
Kalra, opposed Chugh’s petition. . . . The Cayman
court tried the wind-up proceeding over seven days in
January of 2013. At the trial’s conclusion, the court
granted Chugh’s petition. It found that each of Chugh’s
allegations was supported by evidence, and that these
allegations taken together supported a finding that it
was just and equitable to wind up TAL. It also rejected
each of Kalra’s affirmative defenses, concluding that
there was no merit whatsoever in the allegations made
against Mr. Chugh. Kalra appealed from this judgment,
first to the Court of Appeal of the Cayman Islands, and
then to the Judicial Committee of the Privy Council in
London. Both tribunals affirmed the judgment.’’ (Inter-
nal quotation marks omitted.) Id., 27–28.
The plaintiff brought the present action against Asia
Pacific1 and Kalra,2 seeking to domesticate and enforce
a subsequent costs order of the Cayman court.
According to the complaint and accompanying exhibits,
on February 7, 2013, the plaintiff and Haida applied
to the Cayman court for attorneys’ fees and litigation
expenses incurred as petitioners in the winding up pro-
ceedings of TAL. On February 14, 2013, the Cayman
court issued a costs order requiring that Asia Pacific
reimburse the plaintiff and Haida for their litigation
expenses. On May 15, 2013, the Cayman court issued
a ‘‘default costs certificate’’ setting the final amount
payable to the plaintiff and Haida at $760,067.65. In this
action, the plaintiff sought to domesticate and enforce
this order.
On August 24, 2015, the court, Hon. Richard P.
Gilardi, judge trial referee, granted the plaintiff’s appli-
cation for a prejudgment remedy and ordered a disclo-
sure of assets within two weeks of the date of the order.
On August 27, 2015, the defendants filed an application
to refer this case to the Complex Litigation Docket. The
plaintiff consented to this referral and, on September
3, 2015, the court transferred the case to the Complex
Litigation Docket.
On September 10, 2015, the defendants filed a motion
to dissolve and/or modify the ex parte prejudgment
remedy entered by Judge Gilardi and to dismiss the
action in its entirety for lack of subject matter jurisdic-
tion. On September 24, 2015, the court, Miller, J., dis-
solved the prejudgment remedy. On May 31, 2016, the
court, Miller, J., granted the defendants’ motion to dis-
miss the action in its entirety for lack of subject matter
jurisdiction, concluding that ‘‘[t]he foreign ‘judgment’
which the plaintiff seeks to enforce can only be
enforced through chapter 15 of the United States Bank-
ruptcy Act. Moreover, the Cayman ‘Winding-Up’ pro-
ceeding could never qualify, under chapter 15, as a type
of proceeding (main or nonmain) subject to judicial
review.’’ The plaintiff then filed the present appeal, in
which it argues that the court erred in dismissing this
action for lack of subject matter jurisdiction.
‘‘We first set forth the applicable standard of review
and general principles of law. The standard of review
for a court’s decision on a motion to dismiss [under
Practice Book § 10-30] is well settled. A motion to dis-
miss tests, inter alia, whether, on the face of the record,
the court is without jurisdiction. . . . [O]ur review of
the court’s ultimate legal conclusion and resulting
[determination] of the motion to dismiss will be de
novo. . . . When a . . . court decides a jurisdictional
question raised by a pretrial motion to dismiss, it must
consider the allegations of the complaint in their most
favorable light. . . . In this regard, a court must take
the facts to be those alleged in the complaint, including
those facts necessarily implied from the allegations,
construing them in a manner most favorable to the
pleader. . . . The motion to dismiss . . . admits all
facts which are well pleaded, invokes the existing
record and must be decided upon that alone. . . . In
undertaking this review, we are mindful of the well
established notion that, in determining whether a court
has subject matter jurisdiction, every presumption
favoring jurisdiction should be indulged.’’ (Footnote
omitted; internal quotation marks omitted.) Cuozzo v.
Orange, 315 Conn. 606, 614, 109 A.3d 903 (2015).
The plaintiff argues that the court erred in holding
that chapter 15 of the United States Bankruptcy Code3
prevented it from deciding this action for enforcement
of a money judgment between private Connecticut par-
ties. According to the plaintiff, a plain reading of chapter
15 shows that it does not apply to the present case.
We agree.
‘‘Chapter 15 of the United States Bankruptcy Code
. . . requires that under certain circumstances, before
foreign liquidation proceedings may be recognized in
United States courts, a bankruptcy court in the United
States must approve an application for recognition from
a ‘foreign representative’ appointed in connection with
that foreign proceeding. . . . Chapter 15, enacted by
Congress in 2005, incorporated into United States law
the Model Law on Cross-Border Insolvency drafted by
the United Nations Commission on International Trade.
. . . The statute’s primary purpose was to facilitate the
consolidation of multinational bankruptcies into one
single proceeding. . . . Chapter 15 addressed a persis-
tent problem in cross-border liquidations: creditors
would initiate multiple bankruptcy proceedings to
recover assets from a debtor in jurisdictions other than
the site of the principal liquidation. . . . This caused
administrative inefficiency and also allowed creditors
to bypass the priority restraints of the main bankruptcy
proceeding and attempt to recover more than their fair
share of the debtor’s assets. . . . In the interests of
uniformity and efficiency, Chapter 15 provides for the
coordination of domestic and foreign proceedings into
a single bankruptcy and . . . allows foreign represen-
tatives appointed in connection with foreign proceed-
ings to seek recognition of those proceedings in United
States courts as a means of requesting United States
assistance in administering the main liquidation.’’ (Cita-
tions omitted.) Trikona Advisors Ltd. v. Chugh, supra,
846 F.3d 30.
In Trikona Advisors Ltd., a related action involving
some of the same parties, the Second Circuit addressed
whether chapter 15 prevented the United States District
Court for the District of Connecticut from giving preclu-
sive effect to the Cayman court’s factual findings. Id.,
29–31. In that case, TAL brought an action against
Chugh, ARC Capital and other related corporate enti-
ties, alleging breach of fiduciary duty by Chugh, a for-
mer partner and 50 percent owner of TAL, and the other
defendants. Id., 26. The District Court granted summary
judgment in favor of the defendants, concluding that
TAL’s claims previously had been determined in
Chugh’s favor in the proceeding in the Cayman court,
and that TAL was collaterally estopped from asserting
them in the District Court action. Id. On appeal, TAL
argued, inter alia, that chapter 15 prevented the District
Court from giving preclusive effect to the Cayman
court’s factual findings. Id.
In affirming the judgment of the District Court and
concluding that chapter 15 did not apply, the Second
Circuit stated: ‘‘Consistent with its limited purpose, 11
U.S.C. § 1501 (b) specifies four circumstances in which
Chapter 15 applies. These are cases in which: (1) assis-
tance is sought in the United States by a foreign court
or a foreign representative in connection with a foreign
proceeding; (2) assistance is sought in a foreign country
in connection with a case under this title; (3) a foreign
proceeding and a case under this title with respect
to the same debtor are pending concurrently; or (4)
creditors or other interested persons in a foreign coun-
try have an interest in requesting the commencement
of, or participation in, a case proceeding under this
title.’’ (Internal quotation marks omitted.) Trikona
Advisors Ltd.v. Chugh, supra, 846 F.3d 30–31. The court
noted that ‘‘[t]hese scenarios assume that (1) a United
States court is being asked either to assist in the admin-
istration of a foreign liquidation proceeding or to admin-
ister a liquidation proceeding itself, or (2) a foreign
court is being asked to assist in administering a liquida-
tion proceeding in the United States.
‘‘Moreover, 11 U.S.C. § 1515 does not apply generally
to parties, but, by its terms, requires only ‘foreign repre-
sentatives’ to apply for recognition of a foreign judg-
ment in bankruptcy. A ‘foreign representative’ is defined
in 11 U.S.C. § 101 (24) [2012] as ‘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 for-
eign proceeding.’4
‘‘No party to the district court proceeding is a ‘repre-
sentative’ of a ‘foreign proceeding,’ as those terms are
defined in 11 U.S.C. § 101 (24) and (23) [2012]. And no
party to the district court proceeding is seeking the
assistance of the district court in enforcing or adminis-
tering a foreign liquidation proceeding, 11 U.S.C. § 1501
(b) (1) [2012]; nor is any party seeking the assistance
of a foreign country, 11 U.S.C. § 1501 (b) (2) [2012]; nor
does the case involve a proceeding under the Bank-
ruptcy Code pending concurrently with a foreign liqui-
dation proceeding, 11 U.S.C. § 1501 (b) (3) [2012]; nor
are foreign creditors seeking to commence an action
under the Bankruptcy Code, 11 U.S.C. § 1501 (b) (4)
[2012]. The instant nonbankruptcy action, brought in
the District of Connecticut and governed by Connecti-
cut law, is unconnected to any foreign or United States
bankruptcy proceeding. Even assuming, arguendo, that
the wind-up proceeding is the type of case that Chapter
15 would ordinarily cover, Chapter 15 does not apply
when a court in the United States simply gives preclu-
sive effect to factual findings from an otherwise unre-
lated foreign liquidation proceeding, as was done here.’’
(Footnote in original.) Trikona Advisors Ltd. v. Chugh,
supra, 846 F.3d 31.
As in Trikona Advisors Ltd., the present action does
not fall within any of the limited situations outlined in
11 U.S.C. § 1501 (b) in which chapter 15 would apply. In
its complaint, the plaintiff alleges that it is a corporation
incorporated in the United States, not a foreign repre-
sentative as defined by the Bankruptcy Code. This is
an action by the plaintiff, a private party, to enforce a
money judgment that is unconnected to any foreign or
United States bankruptcy proceeding.5 The court erred,
therefore, in dismissing this action for lack of subject
matter jurisdiction on the ground that the judgment
only could be enforced through chapter 15 of the Bank-
ruptcy Code.6
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
We note that the plaintiff named and served ‘‘Asia Pacific Limited’’ as
a defendant. The court in Trikona Advisors Ltd. v. Chugh, supra, 846 F.3d
26, however, indicated that Kalra’s shares were owned by ‘‘Asia Pacific
Investments, Ltd.’’ Further, on the default costs certificate at issue in this
case, the name ‘‘Asia Pacific Limited’’ was changed to ‘‘Asia Pacific Ventures
Limited.’’ As these discrepancies were not raised by either party, we will
assume that the proper defendant is ‘‘Asia Pacific Limited.’’
2
The plaintiff’s complaint alleged that because Kalra had complete control
over Asia Pacific, it was seeking to pierce Asia Pacific’s corporate veil and
enforce the costs order against Kalra. The defendants argue that the Uniform
Foreign Money-Judgments Recognition Act, General Statutes § 50a-34 (a)
(2) et seq., prohibits recognition and enforcement of the Cayman costs order
against Kalra because Kalra was not a party to the wind up proceedings.
The trial court, however, did not address this issue in its decision. Accord-
ingly, we decline to consider this claim. See Willow Springs Condominium
Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 52, 717 A.2d
77 (1998) (‘‘we will not address issues not decided by the trial court’’).
3
Title 11 of the United States Code § 1501, entitled ‘‘Purpose and scope
of application,’’ provides:
‘‘(a) The purpose of this chapter is to incorporate the Model Law on
Cross-Border Insolvency so as to provide effective mechanisms for dealing
with cases of cross-border insolvency with the objectives of—
‘‘(1) cooperation between—
‘‘(A) courts of the United States, United States trustees, trustees, examin-
ers, debtors, and debtors in possession; and
‘‘(B) the courts and other competent authorities of foreign countries
involved in cross-border insolvency cases;
‘‘(2) greater legal certainty for trade and investment;
‘‘(3) fair and efficient administration of cross-border insolvencies that
protects the interests of all creditors, and other interested entities, including
the debtor;
‘‘(4) protection and maximization of the value of the debtor’s assets; and
‘‘(5) facilitation of the rescue of financially troubled businesses, thereby
protecting investment and preserving employment.
‘‘(b) This chapter applies where—
‘‘(1) assistance is sought in the United States by a foreign court or a
foreign representative in connection with a foreign proceeding;
‘‘(2) assistance is sought in a foreign country in connection with a case
under this title;
‘‘(3) a foreign proceeding and a case under this title with respect to the
same debtor are pending concurrently; or
‘‘(4) creditors or other interested persons in a foreign country have an
interest in requesting the commencement of, or participating in, a case
proceeding under this title.
‘‘(c) This chapter does not apply to—
‘‘(1) a proceeding concerning an entity, other than a foreign insurance
company, identified by exclusion in section 109 (b);
‘‘(2) an individual, or to an individual and such individual’s spouse, who
have debts within the limits specified in section 109 (e) and who are citizens
of the United States or aliens lawfully admitted for permanent residence in
the United States; or
‘‘(3) an entity subject to a proceeding under the Securities Investor Protec-
tion Act of 1970, a stockbroker subject to subchapter III of chapter 7 of
this title, or a commodity broker subject to subchapter IV of chapter 7 of
this title.
‘‘(d) The court may not grant relief under this chapter with respect to
any deposit, escrow, trust fund, or other security required or permitted
under any applicable State insurance law or regulation for the benefit of
the claim holders in the United States.’’
4
‘‘The same section defines ‘foreign proceeding’ as ‘a collective judicial
or administrative proceeding in a foreign country, including an interim pro-
ceeding, under a law relating to insolvency or adjustment of debt in which
proceeding the assets and affairs of the debtor are subject to control or
supervision by a foreign court, for the purpose of reorganization or liquida-
tion.’ 11 U.S.C. § 101 (23) [2012].’’ Trikona Advisors Ltd. v. Chugh, supra,
846 F.3d 31 n.1.
5
The defendants rely, however, on a footnote in Trikona Advisors Ltd.v.
Chugh, supra, 846 F.3d 22, in which the Second Circuit made a specific
reference to, and assumed, for the purposes of its analysis, the validity of,
the trial court’s order at issue in the present case. Specifically, footnote 2
of that opinion states: ‘‘In a Rule 28 (j) letter, TAL provided a copy of an
order from the Superior Court of Connecticut, Judicial District of Hartford,
dated May 31, 2016, holding that a complaint by ARC against Asia Pacific
could only be enforced through Chapter 15. . . . Even assuming, arguendo,
that the Superior Court’s order was correctly decided, the facts here are
distinguishable. In the state court proceeding, ARC sought the assistance
of the Superior Court of Connecticut in enforcing an order that the Cayman
court issued in connection with the wind-up proceeding, which awarded
attorneys’ fees to ARC and Haida Investments, Ltd. Because ARC requested
the direct assistance of a court within the United Sates in enforcing an order
issued in connection with a foreign liquidation proceeding, this is a scenario
that arguably falls within the scope of Chapter 15. Here, by contrast, the
Chugh Defendants argue only that the findings of fact made in the wind-up
proceeding should be given preclusive effect. They do not seek the assistance
of the District of Connecticut in enforcing any judgment of the Cayman
court.’’ Id., 31 n.2.
According to the defendants, it is implicit in this footnote that ARC Capital
had the opportunity to seek certification from the Cayman court as a foreign
representative to enforce the costs order in the United States under chapter
15. That footnote, however, simply assumes, without deciding, the validity
of the order in the present case. It expresses no opinion as to its actual
validity. Moreover, with the exception of that footnote, the opinion itself
in Trikona Advisors Ltd.v. Chugh, supra, 846 F.3d 31, specifically held that
chapter 15 did not apply and that it ‘‘does not apply generally to parties, but,
by its terms, requires only ‘foreign representatives’ to apply for recognition
of a foreign judgment in bankruptcy.’’ (Internal quotation marks omitted.)
Id., 31.
6
In light of this conclusion, we need not address the court’s statement that
‘‘the Cayman ‘Winding-Up’ proceeding could never qualify, under chapter
15, as a type of proceeding (main or nonmain) subject to judicial review.’’
We likewise need not address the plaintiff’s additional argument that this
court should afford comity to the money judgment in this case.