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COMI Maybe

By Kevin P. Ray
June 21, 2013

In the years since Chapter 15 was added to the Bankruptcy Code, courts have struggled to define and apply “center of main interests” (COMI), a key concept in the recognition of foreign proceedings. Yet in the vast number of cross-border insolvency cases, a debtor's COMI is readily ascertainable. In the case of a company, a court can look to the location of the company's registered office, the location of its business operations, or the location that the company's creditors generally recognize as its business location. In the case of an individual, commonly a person's habitual residence is apparent. But COMI becomes a challenge when a debtor ' whether company or individual ' is effectively multi-national, an increasingly common circumstance.

For an individual debtor, this multi-national complexity often arises where the debtor is expatriate, and peripatetic at that, and is further complicated physical separation of a fractured family. In In re Kemsley, Case No. 12-13570, 2013 WL 1164930 (Bankr. SDNY March 22, 2013), the United States Bankruptcy Court for the Southern District of New York recently declined to recognize an individual debtor's foreign proceeding pending in the United Kingdom (the UK Proceeding). The question for the court was whether the UK Proceeding qualified for recognition as either a foreign main proceeding or a foreign nonmain proceeding where the debtor had been resident in the United States since 2009. Significantly, however, in its analysis, the court discussed the range of factors that a court may consider when evaluating an individual debtor's COMI, which, in the court's view, may include where other members of the debtor's family reside.

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