Transnational: Ancillary
Proceedings
| ID | Name | Group | Other | Code
Sec |
Cross
Ref | Problem
Referenced | Proposed
Solutions |
NBRC-
0140 | Marcia L. Goldstein | The Association
of the Bar of the City of New York, Chair, Committee on Bankruptcy and
Corporate Reorganization | 1410 |
|
|
Ancillary proceedings provisions should be
clarified. | The NBRC should review the venue
provision for ancillary proceedings contained in 28 USC §
1410. |
NBRC-
0178 | Gary White, on behalf of the Natl. Assoc. of Credit
Management | Chair, Government Affairs Comm.,
Natl. Assoc. of Credit Management | 28 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. |
NBRC-
0189 | Marcia L. Goldstein, on behalf of NY City Bar Assoc., Comm. on
Bankruptcy & Corp. Reorganization | Chair,
Comm. on Bankruptcy and Corp. Reorganization | 28 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. |
NBRC-
0223 | Frank R. Kennedy | Professor, Michigan
Law School; former Executive Director, Commission on the Bankruptcy Laws
of the United States (1973) | Cover letter
discussing various areas of concern | 304 |
| 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. |
NBRC-
0303 | Commercial Law League of America | Commercial 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. |
NBRC-
0685 | Anthony J. Mormino | Associate Counsel,
Reinsurance Association of America | 31 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. |
NBRC-
1049 | Marcia L. Goldstein | Committee 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." |
NBRC-
1050 | Richard f. Broude | Chair, 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. |
NBRC-
1074 | Karen Cordry | Bankruptcy 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." |
NBRC-
1163 | Richard L. Haeussler | Attorney |
|
|
| 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. |
