Why International Litigants Are Using Chapter 15 to Optimize Financial Recoveries in Foreign Insolvency Proceedings

For the sophisticated insolvency professional outside the U.S., expanding one's playbook to include Chapter 15 is a must. As the recent decision discussed below demonstrates, Chapter 15 enables foreign office holders to avail themselves of the benefits of the expansive U.S. discovery powers and procedural rules. This often proves advantageous to those pursuing assets or information about fraudulent actors. Furthermore, U.S. bankruptcy courts have recently demonstrated a willingness to exercise their discretion under Chapter 15 to permit foreign office holders to bring foreign law claims in the United States. When that happens, Chapter 15 courts effectively expand the jurisdiction of the foreign proceeding, allowing the office holder to pursue foreign law claims against defendants beyond the reach of the court where the foreign proceeding is pending.

Alternatively, the option of pursuing a foreign law claim in a U.S. court may be attractive to office holders in jurisdictions with limited discovery powers or cost-shifting features that allow elusive recovery targets to slow down proceedings and drive up costs with jurisdictional challenges, thereby reducing recoveries to bona fide creditors.