What Is Chapter 15 Bankruptcy?
Chapter 15 bankruptcy promotes cooperation between U.S. courts, appointed representatives, and foreign courts in cases filed outside the country. The United States is one of 48 nations that have enacted measures based on the recommendations of a United Nations commission regarding international bankruptcy cases. Chapter 15 aims to mitigate risk for creditors and stakeholders of foreign companies.
In 2005, a significant addition was made to the U.S. Bankruptcy Code in the form of Chapter 15. This pivotal section aimed to facilitate collaboration between U.S. courts and their international counterparts whenever foreign bankruptcy proceedings affected U.S. financial interests. The incorporation of Chapter 15 was prompted by a United Nations directive advocating for enhanced cooperation among nations in dealing with "cross-border insolvency."
Chapter 15 Bankruptcy: Enhancing International Cooperation
The objective of Chapter 15 bankruptcy is to foster collaboration among U.S. courts, appointed representatives, and foreign courts, ensuring a fair and predictable legal process for debtors and creditors in international bankruptcy cases. This chapter primarily focuses on jurisdiction and endeavors to safeguard the debtor's asset value while exploring potential financial solutions for insolvent businesses.
Chapter 15 enables representatives of corporate bankruptcy cases filed outside the United States, commonly known as "cross-border insolvencies," to access the U.S. court system. This mechanism efficiently addresses insolvency cases involving debtors, creditors, and assets spanning multiple countries.
Impressively, 83 countries have adopted their own versions of Chapter 15, drawing inspiration from the United Nations Commission on International Trade Law's "Model Law on International Commercial Arbitration."
The Purpose of Chapter 15
Chapter 15, along with its underlying Model Law, serves as an effective framework for addressing complex insolvency cases involving debtors, assets, claimants, and various parties of interest spanning multiple countries.
To achieve its overarching goal, Chapter 15 outlines five specific objectives:
- Promoting collaboration between United States courts, parties of interest, and foreign courts and authorities in cross-border insolvency cases.
- Establishing a foundation of legal certainty for trade and investment.
- Ensuring fair and efficient administration of cross-border insolvencies, protecting the interests of all creditors, interested entities, and the debtor.
- Safeguarding and maximizing the value of the debtor's assets.
- Facilitating the rescue of financially distressed businesses, safeguarding investments, and preserving employment opportunities.
Chapter 15 serves as the primary gateway for foreign representatives to access both federal and state courts in the United States. Once recognized, these representatives can seek further relief from the bankruptcy court or other state and federal courts, allowing them to initiate a complete bankruptcy case rather than an ancillary one.
Moreover, Chapter 15 grants foreign creditors the right to participate in U.S. bankruptcy cases while prohibiting discrimination against them (excluding certain foreign government and tax claims that may be governed by treaty provisions).
Evolution of Chapter 15: A Global Bankruptcy Framework
Originally introduced in 1978 as Section 304 of the U.S. Bankruptcy Code, Chapter 15 underwent substantial changes before emerging as a vital component of the Bankruptcy Abuse Prevention and Consumer Protection Act 2005. It was influenced by the United Nations Commission on International Trade Law's "Model Law on Cross-Border Insolvency."
Recognizing the growing prevalence of multi-jurisdictional bankruptcies, Section 304 was replaced by Chapter 15, formally known as "Chapter 15, Title 11 of the United States Code." This revamped chapter, titled "Ancillary and Other Cross Border Cases," aimed to mitigate risks for creditors and stakeholders of international companies.
Impressively, 48 countries, including prominent nations such as Japan, Canada, China, Australia, the United Kingdom, Russia, Germany, Saudi Arabia, and Mexico, have embraced this law to enhance creditor protection in cross-border insolvency scenarios.
It is worth noting that between 1978 and 1986, Chapter 15 served a different purpose within the Bankruptcy Code. During that period, it pertained to the United States Trustee Program, overseen by the U.S. Department of Justice, which managed bankruptcy case administration and the involvement of private trustees.
Originally designed as a trial in select judicial districts, Chapter 15 empowered trustees with authorities typically reserved for bankruptcy judges. Subsequently, these changes were assimilated into the broader framework of the Bankruptcy Code.
Chapter 15 bankruptcy promotes international cooperation among U.S. courts and foreign counterparts. With 48 countries enacting similar measures, it reduces risks for creditors in cross-border insolvencies. This chapter focuses on jurisdiction and safeguarding asset value, facilitating efficient resolution for insolvent businesses. Its objectives include collaboration, legal certainty, fair administration, asset protection, and rescue of financially distressed companies. Evolving from Section 304, Chapter 15 remains crucial for addressing international insolvencies and enhancing creditor protection.