Case: 09-60193 Document: 00511054758 Page: 1 Date Filed: 03/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 17, 2010
No. 09-60193 Charles R. Fulbruge III
Clerk
In the Matter of: CONDOR INSURANCE LIMITED, in Official Liquidation,
Debtor
RICHARD FOGERTY, in capacity as Joint Official Liquidator of Condor
Insurance Limited; WILLIAM TACON, in capacity as Joint Official Liquidator
of Condor Insurance Limited,
Appellants
v.
PETROQUEST RESOURCES INC.; HARVEY MILAM; BYRON TYGHE
WILLIAMS; ROSS N. FULLER; T. ALAN OWEN; INTERCONTINENTAL
DEVELOPMENT AND INVESTMENT CORPORATION; GYMNOGYPS
MANAGEMENT, INC.; FINPAC HOLDINGS, INC.; CONDOR GUARANTY,
INC.,
Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before HIGGINBOTHAM, WIENER, and GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Case: 09-60193 Document: 00511054758 Page: 2 Date Filed: 03/17/2010
No. 09-60193
This appeal concerns the jurisdiction of a bankruptcy court to offer
avoidance relief under foreign law in a Chapter 15 bankruptcy proceeding. We
hold that the bankruptcy court has that authority and reverse the judgment of
the district court dismissing for want of jurisdiction.
I
Condor Insurance Ltd., a Nevis corporation, was in the insurance and
surety bond business. On November 27, 2006, a creditor filed a winding up
petition in Nevis, much like a Chapter 7 proceeding under United States law.
The petition was granted and Richard Fogerty and William Tacon were
appointed Joint Official Liquidators.
Fogerty and Tacon, as foreign representatives, filed a Chapter 15
bankruptcy proceeding in Mississippi contending Condor Insurance fraudulently
transferred over $313 million in assets to Condor Guaranty, Inc. to put them out
of the reach of creditors during the Nevis proceeding. Chapter 15 permits
foreign representatives of a foreign insolvency proceeding to seek assistance
from U.S. courts in an ancillary proceeding once the foreign proceeding is
recognized by the bankruptcy court as a foreign main or nonmain proceeding
under the Chapter.1 The bankruptcy court recognized the Nevis winding up
proceeding as a foreign main proceeding and the foreign representatives filed an
adversary proceeding alleging Nevis law claims against Condor Guaranty to
recover the assets.
Condor Guaranty moved to dismiss the proceeding pursuant to Rule
12(b)(1) or alternatively Rule 12(b)(6) as avoidance actions only available
through a Chapter 7 or 11 proceeding. As Condor Insurance is classified as a
1
L IEF M. CLARK , ANCILLARY AN D OTHER CROSS -BORDER INSOLVENCY CASES UND ER
CHAPTER 15 OF THE BANKRUPTCY CODE : A COLLIER MO NO GRAPH §5 (2008).
2
Case: 09-60193 Document: 00511054758 Page: 3 Date Filed: 03/17/2010
No. 09-60193
foreign insurance company, it is prohibited from filing a Chapter 7 or 11 case.2
The bankruptcy court dismissed the proceeding and the district court affirmed.
The foreign representatives now appeal.
II
This court reviews de novo a district court’s dismissal pursuant to Federal
Rules of Civil Procedure 12(b)(1) or 12(b)(6).3 28 U.S.C. § 1334 grants
jurisdiction to district courts for “all cases under title 11”—the Bankruptcy
Code.4 There is no question that the bankruptcy court has jurisdiction to
recognize the Nevis proceeding as a foreign main proceeding. Our question is
whether the exceptions listed in section 1521(a)(7) to the relief available in the
ancillary proceeding exclude not only avoidance actions under U.S. law but also
exclude reliance upon domestic law of the foreign main proceeding.5
III
“In a statutory construction case, the beginning point must be the
language of the statute, and when a statute speaks with clarity to an issue
judicial inquiry into the statute’s meaning, in all but the most extraordinary
circumstance, is finished. The statute must be read as a whole, and only if the
language is unclear [does the court] turn to statutory history.”6 “A statute is
2
11 U.S.C. § 109(b) & (d).
3
Vantage Trailers, Inc. v. Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009).
4
28 U.S.C. § 1334(a).
5
11 U.S.C. § 1521(a)(7).
6
McLaurin v. Noble Drilling (U.S.) Inc., 529 F.3d 285, 288 (5th Cir. 2008).
3
Case: 09-60193 Document: 00511054758 Page: 4 Date Filed: 03/17/2010
No. 09-60193
ambiguous if it is susceptible to more than one reasonable interpretation or more
than one accepted meaning.”7
Our interpretive task in part guided by the circumstance that Chapter 15
implements the United Nations Commission on International Trade Law
(UNCITRAL) Model Law on Cross-Border Insolvency.8 Chapter 15 directs courts
to “consider its international origin, and the need to promote an application of
th[e] chapter that is consistent with the application of similar statutes adopted
by foreign jurisdictions” in interpreting its provisions.9
Prior to UNCITRAL’s work on the Model Law, inter-jurisdictional
collaboration in an international bankruptcy case depended on the openness of
particular national courts, providing a reticulated pattern of cooperation, with
U.S. courts often being more open to cooperation than foreign tribunals.10
Unfortunately, this nigh unilateral effort by the United States did not provide
the “commercial predictability” that could be supplied by uniform international
rules for cooperation between jurisdictions.11 In short, while parties to a foreign
bankruptcy proceeding could often obtain assistance in U.S. courts, parties in a
U.S. bankruptcy proceeding could not necessarily count on reciprocal cooperation
7
United States v. Valle, 538 F.3d 341, 345 (5th Cir. 2008) (internal quotations omitted).
8
UNCITRAL, Model Law on Cross Border Insolvency (1997).
9
11 U.S.C. § 1508.
10
See, e.g., In re Maxwell Commc’n Corp., 93 F.3d 1036, 1053 (2d Cir. 1996) (providing
example of U.S. court invoking comity and making efforts to cooperate with concurrent
insolvency in England). Section 304 gave U.S. courts significant latitude in extending comity
to foreign jurisdictions; however, many countries did not have similar provisions in their
bankruptcy law allowing their courts to reciprocate. See Jay Lawrence Westbrook, Chapter
15 at Last, 79 AM . BANKR . L.J. 713, 719 (2005); see also In re Maxwell Commc’n Corp., 93 F.3d
at 1053 (recognizing difficulties with case-by-case cooperation but recognizing that Congress
intended to facilitate cooperation to “reach workable solutions” through proceedings under
section 304).
11
In re Maxwell Commc’n Corp., 93 F.3d at 1053.
4
Case: 09-60193 Document: 00511054758 Page: 5 Date Filed: 03/17/2010
No. 09-60193
by foreign jurisdictions—often to the detriment of U.S. businesses and creditors
that were denied access to assets of the debtor located abroad.
The UNCITRAL Model Law represents a culmination of a long standing
effort by the United States and other countries to develop a uniform system
guiding needed cooperation.12 That the final negotiations included thirty-six
UNCITRAL members—including the United States—representatives of forty
observer states, and thirteen international organizations evidences its
widespread support.13 The Model Law was “expressly designed to be integrated
into local insolvency law” 14 and Chapter 15 closely hewed to the text of the
enactment. “Any departures from the actual text of the Model Law . . . were as
narrow and limited as possible.” 15 All this being part of an effort by the United
States to harmonize international bankruptcy proceedings for the benefit of
American businesses operating abroad. As directed by Congress, we mind this
background as we discern the Chapter’s reach.
Chapter 15 provides for the “recognition” of a “foreign proceeding” and an
ancillary proceeding to assist the foreign proceedings. To be recognized, the
foreign proceeding must either fall within the definition of a “foreign main
proceeding” 16 or “foreign nonmain proceeding.” 17 With recognition, the foreign
representative may access federal courts with its claims under Chapter 15.
12
C LARK , supra note 1 at §2[3]; Westbrook, supra note 10, at 719.
13
UNCITRAL, Guide to Enactment of the UNCITRAL Model Law on Cross-Border
Insolvency, ¶8 (1997).
14
C LARK , supra note 1, at §2[4].
15
Westbrook, supra note 10, at 720.
16
11 U.S.C. § 1502(4) (“‘foreign main proceeding’ means a foreign proceeding pending
in the country where the debtor has the center of its main interests”).
17
11 U.S.C. § 1502(5) (“‘foreign nonmain proceeding’ means a foreign proceeding, other
than a foreign main proceeding, pending in a country where the debtor has an establishment”).
5
Case: 09-60193 Document: 00511054758 Page: 6 Date Filed: 03/17/2010
No. 09-60193
The foreign representatives seek relief under section 1521(a) of Chapter
15. Section 1521(a) provides that the bankruptcy court may grant “any
appropriate relief,” including staying various aspects of the proceedings,
suspending rights of transfer, providing for discovery, granting administrative
powers to the foreign representatives and “granting any additional relief that
may be available to a trustee, except for relief available under sections 522, 544,
545, 547, 548, 550, and 724(a).” 18 This exception does not exist in the Model
Law.19 While it is plain that relief under the listed sections is excluded, the
statute is silent regarding proceedings that apply foreign law, including any
rights of avoidance such law may offer.
18
11 U.S.C. § 1521(a)(7).
Section (a) reads in its entirety:
Upon recognition of a foreign proceeding, whether main or nonmain, where
necessary to effectuate the purpose of this chapter and to protect the assets of
the debtor or the interests of the creditors, the court may, at the request of the
foreign representative, grant any appropriate relief, including—
(1) staying the commencement or continuation of an individual action or
proceeding concerning the debtor’s assets, rights, obligations or liabilities to the
extent they have not been stayed under section 1520(a);
(2) staying execution against the debtor’s assets to the extent it has not been
stayed under section 1520(a);
(3) suspending the right to transfer, encumber or otherwise dispose of any
assets of the debtor to the extent this right has not been suspended under
section 1520(a);
(4) providing for the examination of witnesses, the taking of evidence or the
delivery of information concerning the debtor’s assets, affairs, rights, obligations
or liabilities;
(5) entrusting the administration or realization of all or part of the debtor’s
assets within the territorial jurisdiction of the United States to the foreign
representative or another person, including an examiner, authorized by the
court;
(6) extending relief granted under section 1519(a); and
(7) granting any additional relief that may be available to a trustee, except for
relief available under sections 522, 544, 545, 547, 548, 550, and 724(a).
11 U.S.C. § 1521(a).
19
UNCITRAL, Model Law on Cross Border Insolvency, Art. 21 (1997).
6
Case: 09-60193 Document: 00511054758 Page: 7 Date Filed: 03/17/2010
No. 09-60193
The sections explicitly excepted from (a)(7) are often referred to as
“avoidance powers”—a trustee’s powers to avoid the transfer of debtor property
that would deplete the debtor’s estate at the expense of creditors. Such powers,
generally described, include those addressing exempt property (§ 522), the
“strong arm” power, which permits the trustee to act as a judicial lien creditor
(§ 544), the power to avoid statutory liens (§ 545), the power to avoid
transactions as “preferences” (§ 547), the power to avoid fraudulent transfers (§
548), and the power to avoid liens that secure claims for compensatory fine,
penalty, or forfeiture, or punitive damages (§ 724(a)). Section 550 contains the
rules that govern the mechanics of avoidance actions.
Where avoidance actions under U.S. law are excluded from a Chapter 15
ancillary proceeding, section 1523(a) ensures they may be brought in a full
bankruptcy proceeding. And to ensure that a foreign representative enjoys the
status of a trustee under those provisions, section 1523(a) grants standing to a
foreign representative wishing to pursue an avoidance action not under its
domestic law but under U.S. bankruptcy law in a Chapter 7 or 11 proceeding—a
power generally reserved to the trustee or specific creditors.20 This language
roughly tracks that of the Model Law. 21 To be sure, section 1523(a) grants no
substantive right of avoidance. Rather it lifts a potential standing roadblock for
resort to Chapters 7 or 11.
20
11 U.S.C. § 1523(a) (“Upon recognition of a foreign proceeding, the foreign
representative has standing in a case concerning the debtor pending under another chapter
of this title to initiate actions under sections 522, 544, 545, 547, 548, 550, 553, and 724(a)”);
UNCITRAL, Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency,
¶166 (1997) (“The effect of the provision is that a foreign representative is not prevented from
initiating such actions by the sole fact that the foreign representative is not the insolvency
administrator appointed in the enacting State.”).
21
UNCITRAL, Model Law on Cross Border Insolvency, Art. 23.
7
Case: 09-60193 Document: 00511054758 Page: 8 Date Filed: 03/17/2010
No. 09-60193
Generally where there are enumerated exceptions “additional exceptions
are not to be implied, in the absence of a contrary legislative intent.” 22 And the
oft recited maxim expressio unius est exclusio alterius carries weight. The
statute provides for “any relief” and excepts only actions under sections 522, 544,
545, 547, 548, 550, and 724(a) of the Code and includes no other language
suggesting that other relief might be excepted. While the statute denies the
foreign representative the powers of avoidance created by the U.S. Code absent
a filing under Chapter 7 or 11 of the Bankruptcy Code, it does not necessarily
follow that Congress intended to deny the foreign representative powers of
avoidance supplied by applicable foreign law. If Congress wished to bar all
avoidance actions whatever their source, it could have stated so; it did not.23
The stated purpose and overall structure of Chapter 15 reflects its
international origin and strongly suggests the answer—section 1521(a)(7) does
not exclude avoidance actions under foreign law. Section 1501 states the
purpose of the Chapter is to further cooperation between the U.S. courts, parties
in U.S. bankruptcy proceedings and foreign insolvency courts and authorities,
as well as promote “greater legal certainty,” “fair and efficient administration of
cross-border insolvencies that protects the interests of all creditors,” “protection
and maximization of the value of the debtor’s assets,” and “facilitation of the
rescue of financially troubled businesses.” 24 Whatever its full reach, Chapter 15
22
See Andrus v. Glover Const. Co., 446 U.S. 608, 616-17 (1980); see also Texas Oil &
Gas Ass’n v. E.P.A., 161 F.3d 923, 938-39 (5th Cir. 1998).
23
This reading appears to be supported by Judge Clark. CLARK , supra note 1, at §7[3]
(referring to “the restriction on applying U.S. avoidance provisions in ancillary proceedings”).
Other summaries are not so clear. See COLLIER ’S INT ’L BUS . INSOLVENCY GUIDE ¶9.11 (2009)
(“[S]ection 1521(a)(7) authorizes any additional relief that may be available to a trustee except
for the exercise of avoidance powers. Avoidance powers are only available in a full case under
another chapter of title 11.”); COLLIER ON BANKRUPTCY ¶1521.02 (2009) (same).
24
11 U.S.C. § 1501.
8
Case: 09-60193 Document: 00511054758 Page: 9 Date Filed: 03/17/2010
No. 09-60193
does not constrain the federal court’s exercise of the powers of foreign law it is
to apply.
Chapter 15 functions through the recognition of a foreign proceeding.25
Only with recognition does broad relief become available: the representative is
able to sue and be sued in U.S. courts,26 to apply directly to a U.S. court for
relief,27 to commence a non-Chapter 15 case,28 to intervene in any U.S. case in
which the debtor is the party,29 and U.S. courts must grant comity and
cooperation to the foreign representative.30 Under section 1520, upon
recognition of a foreign main proceeding, certain relief is granted automatically
including adequate protection, an automatic stay, and the power to prevent
transfers of the debtor’s property.31 Additionally, as a catch-all, under section
1507 the court has authority to provide additional assistance to a foreign
representative subject to the restrictions elsewhere in the Chapter.32
The structure of Chapter 15 provides authority to the district court to
assist foreign representatives once a foreign proceeding has been recognized by
25
Relief unavailable pre-recognition includes relief under 11 U.S.C. §§ 1507, 1511,
1512, 1520, 1521, 1523, 1524, & 1528; however, limited pre-recognition relief is available
under § 1519. Section 1519 grants the court discretion to provide provisional relief including,
staying execution against the debtor’s assets, entrusting the administration of the debtor’s
assets to the foreign representative, suspending right to dispose of any assets of the debtor,
permit discovery, or relief provided by 1521(a)(7).
26
11 U.S.C. § 1509(b)(1).
27
11 U.S.C. § 1509(b)(2).
28
11 U.S.C. § 1511(a).
29
11 U.S.C. § 1524.
30
11 U.S.C. § 1509(b)(3).
31
CLARK , supra note 1, §7[1].
32
11 U.S.C. §1507(a). The “subject to” language prevents section 1507 from providing
an end run around the restrictions on relief provided under the other sections. CLARK , supra
note 1, §7[3].
9
Case: 09-60193 Document: 00511054758 Page: 10 Date Filed: 03/17/2010
No. 09-60193
the district court. Neither text nor structure suggests additional exceptions to
available relief. Though the language does not explicitly address the use of
foreign avoidance law, it suggests a broad reading of the powers granted to the
district court in order to advance the goals of comity to foreign jurisdictions. And
this silence is loud given the history of the statute including the efforts of the
United States to create processes for transnational businesses in extremis.
The district court relied on two House reports in finding Congress intended
to relegate all avoidance actions to Chapter 7 and 11 proceedings.33
Sec. 1521. Relief that may be granted upon recognition of a
foreign proceeding. This section follows article 21 of the
Model Law, with detailed changes to conform to United States
law. The exceptions in subsection (a)(7) relate to avoiding
powers. The foreign representative’s status as to such powers
is governed by section 1523 below. The avoiding power in
section 549 and the exceptions to that power are covered by
section 1520(a)(2). . . . This section does not expand or reduce
the scope of relief currently available in ancillary cases under
sections 105 and 304 nor does it modify the sweep of sections
555 through 560.34
Sec. 1523. Actions to avoid acts detrimental to creditors. This
section follows article 23 of the Model Law, with wording to fit
it within procedure under this title. It confers standing on a
recognized foreign representative to assert an avoidance
action but only in a pending case under another chapter of
this title. The Model Law is not clear about whether it would
grant standing in a recognized foreign proceeding if no full
case were pending. This limitation reflects concerns raised by
the United States delegation during the UNCITRAL debates
33
The district court’s reasoning has been criticized by another bankruptcy court. See
In re Atlas Shipping A/S, 404 B.R. 726 (Bankr. S.D.N.Y. 2009) (“While the parties relied
extensively on Condor in briefing, the Court concludes that its reasoning is open to question
. . . . The Condor court’s conclusion that Congress intended to prevent a foreign representative
from bringing avoidance actions based on foreign law is not supported by anything specifically
in legislative history. The court also ignores cases decided under § 304.” (citations omitted)).
34
H.R. Rep. 109-31, 109th Cong., 1st Sess. (2005).
10
Case: 09-60193 Document: 00511054758 Page: 11 Date Filed: 03/17/2010
No. 09-60193
that a simple grant of standing to bring avoidance actions
neglects to address very difficult choice of law and forum
issues. This limited grant of standing in section 1523 does not
create or establish any legal right of avoidance nor does it
create or imply any legal rules with respect to the choice of
applicable law as to the avoidance of any transfer of
obligation. The courts will determine the nature and extent
of any such action and what national law may be applicable
to such action.35
The district court found and appellees now argue that Congress intended to
relegate avoidance actions of all types to a full bankruptcy proceeding under
Chapters 7 and 11. They argue that permitting the application of foreign
avoidance law in a Chapter 15 case would allow the foreign representatives to
section shop, bringing a Chapter 15 ancillary proceeding when they seek to use
foreign law and a Chapter 7 or 11 proceeding when they seek to use U.S. law.
While concern over choice of law difficulties is not without some force, we are not
persuaded that it counsels a finding that foreign law is excluded.
Conflict of laws issues arise when multiple jurisdictions seek to apply
different bankruptcy law to the same estate. “Avoidance laws have the purpose
and effect of re-ordering the distribution of a debtor’s assets, erasing the results
of debtor and creditor actions in favor of the collective priorities established by
the distribution statute.” 36 They therefore must be treated as an integral part
of the entire bankruptcy system. When courts mix and match different aspects
of bankruptcy law, the goals of any particular bankruptcy regime may be
thwarted and the end result may be that the final distribution is contrary to the
result that either system applied alone would have reached. These concerns
were clearly articulated during the negotiations over the Model Law.
35
Id.
36
Jay Lawrence Westbrook, Choice of Avoidance Law in Global Insolvencies, 17 BROOK .
J. INT ’L L. 499, 508 (1991).
11
Case: 09-60193 Document: 00511054758 Page: 12 Date Filed: 03/17/2010
No. 09-60193
UNCITRAL’s Working Group on Insolvency Law examined three potential
approaches to the question of which law a recognizing court should apply. The
first approach would allow the recognizing court to apply its own law. This was
favored by some countries concerned with the potential lack of familiarity with
foreign law by recognizing courts.37 The second approach would apply the law
of the main proceeding. This approach was favored by some as it “would lead to
a more consistent, harmonized result, in view of divergences among national
insolvency laws” and would help “avoid abetting debtors seeking to conceal
assets behind another law that might provide a haven for those assets.”38 A
third approach was to permit the recognizing court to apply either the law of the
main proceeding or its own law—a solution which might “provide flexibility
needed to limit insulation of assets from insolvency proceedings.”39 However this
approach drew concern that it might raise the potential that a foreign
representative “would be enabled to exercise more powers than those that would
be available to the representative under the law of the appointing jurisdiction.”40
The final provision did not accept any of these three approaches in full.
Rather, the Model Law permitted the recognizing court to grant any appropriate
relief and granted standing to the foreign representatives to bring avoidance
actions under the law of the recognizing state.41 This purposefully left open the
37
UNCITRAL, Report of the Working Group on Insolvency Law on the Work of the
Eighteenth Session, ¶¶ 50-51, A/CN.9/419 (Dec. 1, 1995).
38
Id. at ¶ 52.
39
Id. at ¶ 53.
40
Id.
41
UNCITRAL, Model Law on Cross Border Insolvency, Art. 23 (1997).
12
Case: 09-60193 Document: 00511054758 Page: 13 Date Filed: 03/17/2010
No. 09-60193
question of which law the court should apply 42 —in deference to the choice of law
concerns raised by the United States.
The drafters of Chapter 15, responsive to the concerns raised at the
UNCITRAL debates, confined actions based on U.S. avoidance law to full
Chapter 7 and 11 bankruptcy proceedings—where the court would also decide
the law to be applied to the distribution of the estate.43 The application of
foreign avoidance law in a Chapter 15 ancillary proceeding raises fewer choice
of law concerns as the court is not required to create a separate bankruptcy
estate.44 It accepts the helpful marriage of avoidance and distribution whether
the proceeding is ancillary applying foreign law or a full proceeding applying
domestic law—a marriage that avoids the more difficult depecage rules of
conflict law presented by avoidance and distribution decisions governed by
different sources of law.
It is no happenstance that this solution also addresses the concern that
foreign representatives would bring an ancillary action simply to gain access to
avoidance powers not provided by the law of the foreign proceeding. Access to
foreign law offers no opportunity to gain the powers of avoidance provided by the
U.S. Bankruptcy Code when there is no such power offered by the foreign
42
UNCITRAL, Guide to Enactment of the UNCITRAL Model Law on Cross-Border
Insolvency, ¶166 (1997) (“The provision is drafted narrowly in that it does not create any
substantive right regarding such actions and also does not provide any solution involving
conflict of laws.”).
43
Such an analysis occurred in the pre-Chapter 15 case In re Maxwell Communication
Corporation. 93 F.3d 1036 (2d Cir. 1996). There a British holding company with large
subsidiaries in the United States filed dual bankruptcy proceedings in the United States and
in Britain. The U.S. bankruptcy court and the British court approved of a Protocol to further
cooperation which recognized the British administrators as the corporate governance of the
debtor in possession. The debtor sought to use U.S. avoidance law in the U.S. proceeding to
avoid certain transactions. However the U.S. bankruptcy court applied the doctrine of comity
to find that even in the U.S. proceeding the administrators could not use U.S. avoidance law.
44
See 11 U.S.C. § 1501 et. seq.
13
Case: 09-60193 Document: 00511054758 Page: 14 Date Filed: 03/17/2010
No. 09-60193
state—at least not without filing a full bankruptcy case under the Code—and
deference to comity does not invite forum shopping.
This case is illustrative of Chapter 15’s response to concerns of the
UNCITRAL delegation. The foreign representatives are not seeking to mix and
match foreign and U.S. law—they only seek the application of Nevis law. The
foreign representatives gain no powers not contemplated by the laws of Nevis
through filing suit in the United States and the distribution regime established
by Nevis law is not threatened by the potential application of conflicting
avoidance rules.
Congress did not intend to restrict the powers of the U.S. court to apply
the law of the country where the main proceeding pends. Refusing to do so
would lend a measure of protection to debtors to hide assets in the United States
out of the reach of the foreign jurisdiction, forcing foreign representatives to
initiate much more expansive proceedings to recover assets fraudulently
conveyed, the scenario Chapter 15 was designed to prevent. We are not
persuaded that Congress has unwittingly facilitated such tactics—with foreign
insurance companies, access to Chapters 7 and 11 is otherwise denied. Nor is
the suggestion that the representatives need only render their claim in Nevis an
answer. Not all defendants are necessarily within the jurisdictional reach of the
Nevis court.
Our interpretation is also supported by courts’ interpretation of section
304, the predecessor of Chapter 15. Congress intended that case law under
section 304 apply unless contradicted by Chapter 15.45 Though section 304 was
more limited in scope than Chapter 15, it provided significant discretionary
relief: a court could enjoin actions or judgments against the debtor or debtor’s
property, order the turnover of the property to a foreign representative, or “order
45
H.R. Rep. 109-31, 109th Cong., 1st Sess. (2005).
14
Case: 09-60193 Document: 00511054758 Page: 15 Date Filed: 03/17/2010
No. 09-60193
other appropriate relief.”46 The statute also provided that the courts should
exercise discretion in the spirit of comity and in the interests of the parties.47
This court summed up the function of section 304: “The filing of a 304 petition
does not create a bankruptcy ‘estate’ that must be administered by a court in the
United States, but it does allow the foreign debtor to prevent piecemeal
distribution of its assets in the United States while its plan is being structured
in the foreign jurisdiction.”48
“Early authority suggested Bankruptcy Courts [had] discretion to
authorize utilization of the avoiding powers under the Code in a § 304 ancillary
proceeding.” 49 Indeed, a foreign representative could use avoidance powers
46
Section 304 read in relevant part:
(b) . . . the court may—
(1) enjoin the commencement or continuation of—
(A) any action against—
(i) a debtor with respect to property involved in such
foreign proceeding; or
(ii) such property; or
(B) the enforcement of any judgment against the debtor with
respect to such property, or any act or the commencement or
continuation of any judicial proceeding to create or enforce a
lien against the property of such estate;
(2) order turnover of the property of such estate, or the proceeds of
such property, to such foreign representative; or
(3) order other appropriate relief.
11 U.S.C. § 304(b) (2000), repealed by Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005 (BAPCPA) § 802(d)(3), 119 Stat. at 146.
47
The statute provides six factors for the court to consider: “(1) just treatment of all
holders of claims against or interests of such estate; (2) protection of claim holders in the
United States against prejudice and inconvenience in the processing of claims in such foreign
proceeding; (3) prevention of preferential or fraudulent dispositions of property of such estate;
(4) distribution of proceeds of such estate substantially in accordance with the order prescribed
by this title; (5) comity; and (6) if appropriate, the provision of an opportunity for a fresh start
for the individual that such foreign proceeding concerns.” 11 U.S.C. § 304(c) (2000), repealed
by BAPCPA § 802(d)(3), 119 Stat. at 146.
48
In re Rutger Schimmelpenninck, 183 F.3d 347, 361 (5th Cir. 1999).
49
In re Axona Int’l Credit & Comm. Ltd., 88 B.R. 597, 607 n.17 (Bankr. S.D.N.Y. 1988
(citing, e.g., In re Trakman, 33 B.R. 780, 783 (Bankr. S.D.N.Y. 1983)).
15
Case: 09-60193 Document: 00511054758 Page: 16 Date Filed: 03/17/2010
No. 09-60193
under both U.S. and foreign law. However, a bankruptcy court in In re Metzeler
found that only those avoidance actions relying upon foreign law were permitted
under section 304; actions that would rely on U.S. avoidance law could only be
brought in a proceeding under Chapter 7 or 11 of the Bankruptcy Code. The
court criticized the prior holdings and stated “[t]he section 304 court’s tasks
should be to assist implementation of the foreign court’s decrees . . . not to
provide the foreign representative with the benefit of American avoidance
powers.”50 The court continued “[i]t is not the purpose of § 304 to determine the
nature of an estate involved in a foreign proceeding. Those parameters are left
to foreign law that creates the avoidance powers granted to a trustee.” 51 The
court accepted that the use of avoidance powers created by foreign law would not
offend section 304 and the court allowed its avoidance action based on foreign
law to proceed.52
In sum, under section 304, avoidance actions under foreign law were
permitted when foreign law applied and would provide for such relief. Congress
essentially made explicit In re Metzeler’s articulation of the bar on access to
avoidance powers created by the U.S. Code by foreign representatives in
ancillary proceedings.
Lastly, the application of foreign law under Chapter 15 of the Bankruptcy
Code implicates none of the salient concerns driving reliance by United States
Courts upon the law of foreign nations in defining domestic norms. Providing
50
In re Metzeler, 78 B.R. 674, 677 (Bankr. S.D.N.Y. 1987) (quoting R.A. Gitlin & E.D.
Flaschen, The International Void in the Law of Multinational Bankruptcies, 42 BUS . LAW . 307,
319 (1987)); see also In re Aerovias Nacionales De Columbia S.A. Avianca, 303 B.R. 1, 16
(Bankr. S.D.N.Y. 2003); In re Griffin Trading Co., 270 B.R. 883, 893 (Bankr. N.D. Ill. 2001)
(favorably citing Metzeler); Petition of Kojima, 177 B.R. 696, 703 n.35 (Bankr. D. Colo. 1995)
(permitting avoidance action under Japanese law pursuant to section 304); In re Tarricone,
Inc., 80 B.R. 21, 23-24 (Bankr. S.D.N.Y. 1987) (favorably citing Metzeler).
51
In re Metzeler, 78 B.R. at 677.
52
Id.
16
Case: 09-60193 Document: 00511054758 Page: 17 Date Filed: 03/17/2010
No. 09-60193
access to domestic federal courts to proceedings ancillary to foreign main
proceedings springs from distinct impulses of providing protection to domestic
business and its creditors as they develop foreign markets. Settled expectations
of the rules that will govern their efforts on distant shores is an important
ingredient to the risk calculations of lenders and corporate management. In
short, Chapter 15 is a congressional implementation of efforts to achieve the
cooperative relationships with other countries essential to this objective. The
hubris attending growth of the country’s share of international commerce rests
on a nourishing of its exceptionalism not its diminishment.
IV
As Chapter 15 was intended to facilitate cooperation between U.S. courts
and foreign bankruptcy proceedings, we read section 1521(a)(7) in that light and
hold that a court has authority to permit relief under foreign avoidance law
under the section. We reverse the judgment of the district court dismissing for
want of jurisdiction and remand for further proceedings consistent with this
opinion.
17