by: Cullen Ann Drescher
U.S. Bankruptcy Court (E.D. Va.); Norfolk, Va.
On Aug. 21, 2009, the U.S. Bankruptcy Court for the Eastern District of New York issued a memorandum opinion in In re Gold and Honey, Ltd.[1]denying recognition of petitions filed by receivers appointed by the Tel-Aviv-Jaffa District Court for the State of Israel. The court found that the receivers failed to meet their burden in showing that the Israeli receivership proceeding was a “foreign proceeding” within the Bankruptcy Code’s definition. In addition, the court concluded that granting recognition would be manifestly contrary to the public policy of the United States. The ruling is of broad instructive value on the process of recognition under chapter 15 of the U.S. Bankruptcy Code, and further refines the existing body of jurisprudence regarding transnational insolvency law.
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In CSL Australia Pty. Ltd. v. Britannia Bulkers PLC, et al., 2009 U.S. Dist. LEXIS 81173 (S.D.N.Y. Sept. 8, 2009), the defendant Britannia Bulkers PLC (Britannia), a Denmark corporation with its only place of business in Svendborg, Denmark, filed a motion against the plaintiff CSL, an Australian corporation with its place of business in St. Leonard’s, New South Wales, Australia, to vacate a maritime attachment issued in favor of CSL. The underlying dispute was initially brought by CSL against Britannia, seeking security for a potential breach of contract arbitration judgment. On the same day that the dispute was initiated, an ex parte order was entered directing the clerk to issue a process of maritime attachment and garnishment against Britannia in accordance with Admiralty Rule B in an amount up to $2,443,870. Approximately one week later, electronic fund transfers totaling $2,443,870 belonging to Britannia A/S, a related entity, were seized. CSL contended that the seized funds were intended for the benefit of Britannia, and therefore, were subject to the current attachment order. Thereafter, CSL filed an amended complaint naming Britannia Bulk Plc. (Bulk) and Britannia A/S as alter egos and obtained an amended ex parte order that included the newly named defendants.
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by: David A. Rosenzweig
Fulbright & Jaworski LLP; New York
Fulbright & Jaworski LLP; Houston
In In re Atlas Shipping A/S, 404 B.R. 726 (Bankr. S.D.N.Y. 2009), the U.S. Bankruptcy Court for the Southern District of New York vacated maritime attachments and ordered the turnover of funds in New York to the foreign representatives of a shipping company that was in bankruptcy in Denmark. The U.S. court rejected the attaching creditors’ contention that vacatur of the attachments could not be granted to the foreign representatives in a chapter 15 case due to the carve-out of avoidance relief in §1521(a)(7) of the U.S. Bankruptcy Code.
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ABI's 28th Annual Spring Meeting will be held April 29-May 2 at the expansive Gaylord National Resort and Convention Center, just moments from Washington, D.C. The International Committee will present a session on Saturday, May 1 at 4:15 p.m. entitled "Melting the Golden Chalice: Sovereign Wealth Funds, Distressed Investing and Restructuring Opportunities Ahead." Panelists will include Gordon Johnson of EM Advisors LLC in Reston, Va., Mitchell A. Seider of Latham & Watkins LLP in New York and Inho Lee of the International Finance Corporation in Washington, D.C. Be sure to take advantage of the early bird rates and register today!
