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What Are U.S. Creditors' Rights?
Last month's article reviewed cross-border parallel bankruptcy proceedings, and outlined various attempts to cope with the problem. This month, we discuss situations in which the U.S. court finds a real conflict between the laws of two or more countries in the treatment of creditors' claims.
Which Jurisdiction Takes Precedence?
In such situations, the courts will undertake an examination to determine which jurisdiction had the greater connection to the creditors' claims. This is exemplified by a recent case involving parallel plenary insolvency proceedings. Stonington Partners Inc. v. Lernout & Hauspie Speech Products N.V. (L&H), 310 F.3d 118 (3rd Cir. 2002). In that case, L&H, which was incorporated in Belgium and had headquarters in Belgium and the U.S., started two parallel insolvency proceedings, one in Belgium and the other in the U.S. The claimant, Stonington, which had commenced a fraud action against L&H before the latter filed for bankruptcy, filed claims in each of the bankruptcy proceedings based on L&H's alleged fraud. Stonington sought to pursue its claim in the Belgian court, where the claims would not be subject to subordination, rather than in the U.S. court, where Stonington would be considered an insider and its claims would be subordinated under Bankruptcy Code ' 510.
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