Web posted and Copyright © 1/12/98, American Bankruptcy Institute.

The following abstract summarizes the text of submissions made to the National Bankruptcy Review Commission. The abstract is organized by NBRC working group and topic.

The Final Report of the NBRC can be viewed on-line. To obtain a copy of any document shown below, contact the Center for Legislative Archives, Room 205, National Archives Building, Washington, D.C. 20408. The telephone number is 202/501-5350. Mr. R. Michael McReynolds, Deputy Director, will be able to assist with specific inquiries. (The NBRC documents will be housed at this location until June, 1999. Thereafter, the records will be transferred to the Center's archives in College Park, MD.)

Transnational: Ancillary Proceedings
Problem ReferencedProposed Solutions

Marcia L. GoldsteinThe Association of the Bar of the City of New York, Chair, Committee on Bankruptcy and Corporate Reorganization1410

Ancillary proceedings provisions should be clarified.The NBRC should review the venue provision for ancillary proceedings contained in 28 USC § 1410.

Gary White, on behalf of the Natl. Assoc. of Credit ManagementChair, Government Affairs Comm., Natl. Assoc. of Credit Management28 U.S.C. § 1410

Working group's proposal regarding venue for ancillary proceedings in transnational insolvency will expedite court administrative procedures and reduce case costs.NACM supports the working group's proposal on venue for ancillary proceedings in transnational insolvency.

Marcia L. Goldstein, on behalf of NY City Bar Assoc., Comm. on Bankruptcy & Corp. ReorganizationChair, Comm. on Bankruptcy and Corp. Reorganization28 U.S.C. § 1410

28 U.S.C. § 1410 is ambiguous as to whether the commencement of an ancillary case under § 304 in a proper venue establishes nationwide jurisdiction of the bankruptcy court for all purposes subsumed in the ancillary case. As currently written, § 1410 can be read to provide that a separate ancillary case must be commenced in each jurisdiction where a foreign representative seeks to enjoin the enforcement of a lien against property located in such jurisdiction, obtain turnover of such property, or enjoin the commencement or continuation of litigation in such jurisdiction.28 U.S.C. § 1410 should be amended to clarify that the commencement of an ancillary case under 11 U.S.C. § 304 in a proper venue establishes nationwide jurisdiction of the bankruptcy court for all purposes subsumed in the ancillary case. The author provides a sample redrafted version of § 1410.

Frank R. KennedyProfessor, Michigan Law School; former Executive Director, Commission on the Bankruptcy Laws of the United States (1973)Cover letter discussing various areas of concern304
Author provides a list of 30 "Topics for Consideration by Commission on Bankruptcy Laws." The recommended topic relating to cases ancillary to foreign proceedings was: Revision of § 304.None.

Commercial Law League of AmericaCommercial Law League of America (CLLA)

The Commerical Law League of America believes that the following ancillary proceedings issues should be considered by the NBRC: whether current transnational insolvency law is adequate (CLLA believes that this issue is a "non-priority"); whether legislative adjustments to alter the international reach of domestic bankruptcy legislation are needed (non-priority); whether avoiding powers should have extra-territorial effect (moderate priority); clarification of where comity is apporpriate (non-priority); upon release of the reports from the Transnational Insolvency Project, the Committee J Concordat, and the UNCITRAL, what legislative enactments will be required (non-priority until specifics of the reports are known); review provisions for cross-border cases (non-priority); and whether Congress should puruse other avenues in developing a coherent law of transnational bankruptcies.CLLA concludes that § 304 is adequate to address transnational insolvency issues. Legislative adjustements to extend the reach of domestic bankruptcy law are not needed because reciprocity and access to courts in foreign jurisdictions is more effective. Futher, comity is already well-defined and need not be addressed further by the NBRC. With regard to cross-border cases, very few judges have the expertise to handle these cases, and thus training programs will be necessary if special review provisions are enacted.

Anthony J. MorminoAssociate Counsel, Reinsurance Association of America31 page Memorandum, "The Interaction of State Insurance Collateralization Laws and Section 304 of the U.S. Bankruptcy Code by Debra J. Hall and Anthony J. Mormino dated April 29, 1997.304
The Reinsurance Association of America (RAA) seeks an amendment of 11 U.S.C. § 304. "Generally, the problem the RAA seeks to resolve is an inadvertent conflict between the fundamental, domestic focus of state insurance laws, and the internationalist focus of Section 304 of the federal Bankruptcy Code." "Typically, the non-U.S. receiver institutes a proceeding under Section 304, impermissibly bypassing state ancillary receivership laws. Federal courts then grant statutory relief that furthers the interests of "transnational uniformity" in bankruptcy, unfortunately at the expense of nullifying state insurance laws meant to protect U.S. policyholders and insurers."A proposed amendment to Section 304 is spelled out in a 31 page memorandum enclosed with the letter.

Marcia L. GoldsteinCommittee on Bankruptcy and Corporate Reorganization of the Association of the Bar of the City of New York

Author writes on behalf of the Committee on Bankruptcy and Corporate Reorganization of the Association of the Bar of the City of New York (the "Committee"). Author points out that the UNCITRAL Model Law on Cross-Border Insolvency was adopted by the United Nations Commission on International Trade Law on May 30, 1997. U. S. Bankruptcy procedure in cross-border cases is compatible with this, but there are differences as well. A Guide to Enactment of the Model Law will be promulgated, but not until after the Commission's report is due."In light of the foregoing, thie Committee suggests that the Commission consider recommending the orgaization of a representative joint working group to formulate and propose draft legislation which addresses cross-border insolvencies in a manner consistent wih the Model Law, the present Bankruptcy Code and Commission recommendations."

Richard f. BroudeChair, Committee J, Section on Business Law, International Bar Association

Author agrees with a number of suggestions made by Marcia L. Goldstein in her August 13, 1997 letter (NBRC-1049) and would apapreciate being considered for participation in any group which the Commission may form to address these issues.See above.

Karen CordryBankruptcy Counsel, National Association of Attorneys General

Author has one concern about the language of the model law. "Under Articles 19-21, the bankruptcy courts have discretionary authorization to impose a stay or proceedings in the United States upon the filing of papers in connection with a foreign proceeding. Article 20, which deals with recognition of a foreign main proceeding provides that stays of actions against the debtor must be carried out in accordance with the otherwise existing law under the Code. However, Articles 19 and 21 do not contain any reference to such limitations. It is obviously a matter of great concern to the government if a foreign entity could obtain greater protection from the automatic stay with respect to its activities and assets in the United States than a domestic entity.""...I would suggest that any endorsement of that proposal should include a notation that existing restrictions in the Code on stay relief also apply to any foreign proceeding."

Richard L. HaeusslerAttorney

Author saw a note on the Internet about the Canadian House of Commons passing a measure which would allow a foreign trustee to come into the Canadian courts to administer a foreign bankruptcy with international assets.The U.S. should adopt a similar provision. There should be some statutory basis for cooperation between the bankruptcy courts of different countries in the case of an international bankruptcy.