NCBJ-American College of Bankruptcy Joint International Program

NCBJ-ACB Joint International Program
September 29, 2015 (Sign-up for this session through your NCBJ regular registration!)
Moderator, Edward J. Janger, David M. Barse Professor, Brooklyn Law School

Speakers:

          Hon. David Richards, British High Court
          Christopher Redmond, Husch and Blackwell
          Agustin Berdeja-Prieto, Berdeja y Asociados, S.C.
          Daniel Glosband, Goodwin Procter/CBInsolvency LLC

Commentator:

          Hon. Allan Gropper, Bankruptcy Judge S.D.N.Y. (ret.)

Title: “The Emerging Architecture for Coordinated Restructuring of International Corporate Groups”

For the last thirty years, bankruptcy lawyers have been working to facilitate the cross-border restructuring of multinational enterprises. From Maxwell to Nortel, courts have been developing techniques for coordinating bankruptcy cases across national lines. Law reform efforts both in the EU and through multilateral organizations such as UNCITRAL’s Working Group V have sought to facilitate these developments, promulgating a variety of soft and hard law instruments. In particular, the EU Regulation on Insolvency Proceedings, The UNCITRAL Model Law on Cross-Border Insolvencies, and the UNCITRAL Legislative Guide on Insolvency. These instruments have moved the ball forward considerably.

The focus, until recently, however, has been on facilitating the cross-border administration of a single entity from the court based at the debtor’s center of main interest (“COMI”) — creating a framework for cooperation by courts located in jurisdictions where the debtor has assets or an establishment. This is a necessary building block for the legal regime, but it is incomplete. Many, if not most, multinational enterprises are structured as corporate groups. The group structure can simplify some cross-border issues, clarifying entitlements by locating claims and assets within a single entity and legal regime. The group structure can, however, also complicate matters. In particular, the concept of COMI, that works to centralize a case where a single firm is involved, can pull a group case in multiple directions, as each member may have its own COMI. This, in turn, may frustrate efforts to achieve a coordinated restructuring or going concern sale of the enterprise.

This panel will focus on recent developments in in the EU, at UNCITRAL, and in practice that frustrate or facilitate governance and administration in the insolvency of corporate groups. This short essay will explain those developments, and will briefly describe the presentations to be made during the panel discussion.

Existing Instruments and the Problem of Corporate Groups

Two principal existing international instruments seek to coordinate the insolvency of a multinational firm across national boundaries: The EU Insolvency Regulation and the UNCITRAL Model Law on Cross Border Insolvency (the “Model Law,” or “Chapter 15” in the US). Both follow the approach known as “Modified Universalism,” where a “main” bankruptcy case, opened at the debtor’s center of main interest (“COMI”), coordinates and administers the assets of the debtor. Where assets, operations and creditors are located in other jurisdictions (the “Receiving Jurisdiction” or “Receiving Court”), the EU Regulation and UNCITRAL Model Law provide a mechanism for recognizing a representative of the debtor and providing assistance through the opening of a “secondary proceeding” under the EU Regulation or “ancillary proceeding” under the Model Law. These instruments have made real advances, but, again, are all focused on single firms.

Where a corporate group is involved, the single firm focus of these instruments and the concept of COMI may cause mischief. The COMI of the various subsidiaries may be at the nerve center of the group, but often it will be in the jurisdiction of registration. This is, for example, the presumption in the EU after the Eurofoods decision. The answer in any given case is, therefore, uncertain.

Emerging Tools and Approaches

Thus, in a group, the concept of COMI can help centralize the case, or it can prove a disruptive and disorganizing force. Additional tools were (and are) necessary to address this problem. First through case-law, and now through efforts to reshape the existing international instruments, a number of tools and concepts have emerged to address the problems posed by corporate groups. The panel will discuss this emerging architecture.

Informal Synthetic Treatment – Collins and Aikman

A principal exemplar of the emerging approach to groups can be found in the Collins and Aikman case under the EU Regulation. In that case an automobile parts supplier with subsidiaries throughout the EU opened a case in the UK. Creditors of group members located in other EU countries asserted that they would be entitled to priority treatment under local law if a secondary proceeding was opened. In order to save the cost and disruption of opening a secondary case, the UK administrator promised the creditors that it would grant them a distribution at least as good as the treatment they would have received in a territorial case. The UK court allowed the administrator to honor this agreement, even though it was inconsistent with the choice of law rule contained in Article 4 of the EU Regulation. This approach has been followed in subsequent cases and has proven useful.

Formalizing Synthetic Treatment in Group Cases

From this example emerge several key concepts that are the focus of current reforms in the EU and of harmonization efforts at UNCITRAL. The first concept is the replacement of the COMI concept with the concept of a “Coordinating Court” for the group. In the case pending in the Coordinating Court, the members of the group would all have standing to participate, and the members of the group can hammer out a coordinated “Group Solution” that maximizes the value of the enterprise. The second concept has a variety of names. It is variously called “Synthetic,” “Virtual,” “As-if,” or “No-worse Than” treatment. As a practical matter it means that the Coordinating Court has the power to disapply its local priority rules and instead match the treatment that creditors of a group member would have received if a territorial case was opened at the member’s COMI.

The first two concepts: “Group Solution” and “As-if” treatment are tools in the hands of the Coordinating Court. The third concept focuses on the Receiving Court – the court that is the COMI of the group member. It mirrors the concept of cooperation and assistance provided for under the Model Law, but it is tailored to the group context. This emerging third concept is that their must be a procedure through which the Receiving Court can elect to defer to and/or ratify the proceedings pending in the Coordinating Court if it is satisfied that participating in a group solution is in the best interest of the group member. Such a procedure may involve an undertaking by a representative of the Coordinating Court, a formal suspension of proceedings by the Receiving Court and a ratification of a group solution in the Receiving Court, or it may involve none of the above, where the law of the group member’s COMI allows the group member to participate voluntarily in the group solution without opening a secondary or ancillary case.

This vision is the motivation behind a series of recently adopted amendments to the EU Regulation, and to efforts under way at UNCITRAL to draft text for the Model Law and Legislative Guide to deal with groups. There are important differences in how a Group Solution might be implemented in a case under the EU Regulation as it is currently being amended, or under the emerging approach being discussed by UNCITRAL in Working Group V. The panelists will each take on a piece of this puzzle.

Presentations:

Corporate Groups Under the EU Insolvency Regulation

Hon. David Richards, a Judge of the British High Court, will describe the recent amendments to the EU Insolvency Regulation. In particular, he will focus on the provisions in the Regulation that allow the administrator in the Coordinating Case to enter into a binding undertaking to apply distributional rules of a group member’s COMI jurisdiction rather than the priority scheme of the forum court. He will also discuss new provisions that allow the court of the group member’s COMI to decline to open a secondary proceeding so long as the above-mentioned undertaking is respected.

Corporate Groups – UNCITRAL Working Group V

Christopher Redmond, a partner at Husch and Blackwell, is a member of the US delegation to UNCITRAL Working Group V. He will explain the related efforts at UNCITRAL to supplement the existing Model Law and Legislative Guide. First, these efforts seek to allow for the creation of a Coordinating Court that to facilitate the creation of a group solution, and to provide for the court at a member’s COMI to cooperate with and/or provide assistance in implementing a group solution where to do so is in the best interests of the group member.

Corporate Groups – Duties of Officers and Directors, The Mexican Example

Agustin Berdeja-Prieto, a partner at Berdeja y Asociados, S.C., will discuss the problems faced by the officers and directors of group members when a firm is in the zone of insolvency, especially when it must consider whether to participate in a Group Solution. He will also discuss the recent amendments to the Mexican insolvency law, with special attention to group issues.

Avoidance and Extraterritoriality

Finally, Dan Glosband will explore recent developments with regard to avoidance and extraterritoriality in cross-border cases.  To skirt the prohibition against use of most of the Bankruptcy Code avoidance powers in a chapter 15 case, foreign representatives have attempted avoidance and recovery by deploying the avoidance law of the foreign proceeding, principles of international comity, state avoidance law and state common law remedies.  Along the road to success or failure, they encountered the obstacles of personal and subject matter jurisdiction, extraterritorial application of U.S. law, standing and (for common law claims) the in pari delicto defense. If a foreign representative, or a trustee in a case under another chapter of the Bankruptcy Code, does obtain an avoidance judgment, enforcement in other countries may be problematic.  Several recent decisions illuminate these issues.

Practical Impact

Judge Allan Gropper will conclude the formal presentations by exploring the practical effects, if any, of these developments, taken together, on cross-border practice.

 

Index to 2015 Blog Posts

General

Welcome to the NCBJ’s 89th Annual Meeting at Miami Beach Blog

Educational Programs

NCBJ-American College of Bankruptcy Joint International Program

Final Night Entertainment

Tower of Power to Take the NCBJ by Storm

The Fontainebleau Hotel

About the Hotel

Miami Spice Posts

Miami Spice – It’s All Hot Here! – Part I (Introduction)

Miami Spice – It’s All Hot Here! – Part II (Natural Wonders)

Miami Spice – It’s All Hot Here! – Part III (Cultural Attractions)

Miami Spice – It’s All Hot Here! – Part IV (Eating and Drinking)

2014 Conference Revisited

Looking Back on the 2014 NCBJ Conference

Welcome to the NCBJ’s 89th Annual Meeting at Miami Beach Blog

Friends,

Welcome to the NCBJ Annual Conference Blog for our 89th Annual Meeting at the Fontainebleau in Miami Beach. Contributors to this Blog will write about a wide range of topics that we think you’ll find interesting and informative, all relevant to our meeting that is scheduled to begin on September 28, 2015. When you come back, you’ll soon the reading about–

  • Our 2015 Education program;
  • How we do it: secrets of putting on an NCBJ annual meeting;
  • Some of the many sights and sounds of South Beach; and
  • Our Final Night entertainment.

We welcome all bankruptcy professionals to submit posts for this Blog (you can find a link to the guidelines for posting on the Blog home page).

As you know, the NCBJ’s Annual Meeting is the premiere education and networking conference on bankruptcy insolvency. Last year, over 200 present and former bankruptcy judges attended, along with over 1,500 attorneys, accountants, and other insolvency professionals. Miami Beach is a vibrant seaside retreat. We have planned educational activities featuring some of the leading speakers in the country and we’ll host a varied menu of programs sponsored by our colleagues at the ABA, the American College of Bankruptcy, ABI, AIRA, CLLA, IWIRC, and TMA. But—as you’ll be hearing about in other posts—we’ve got some special non-education treats in store.

Speaking of Final Night, I‘m delighted to announce that renowned funk and soul band, Tower of Power, fit us into their 2015 tour to play our final Night Dinner. Purveyors of Urban Soul since 1968, these guys will be all over the country this spring and summer and can really bring it. I just saw them a year ago and I can testify to that.

If you’re tired of chicken and peas sit-down dinners punctuated by speeches, fear not; we’ve revamped all of that, too. This year’s Final Night festivities will include lots of tastes of Miami, several bars, and lots of seating combinations so you can network with new friends and old. And, there’ll be plenty of room to dance, because when Emilio, Doc and Tower of Power’s wind section get going, you’ll want to be up there!

So please check back periodically for new postings to the Blog. Many thanks to the talented judges who moderate. I look forward to seeing you in Miami.

Bob
Hon. Bob Nugent, President, NCBJ

About the Hotel . . . .

By Kate Thuma

At the beginning of the 20th century, Miami Beach was an island of farmland amid a wild and uninhabited jungle. That changed in 1912 when two enterprising businessmen began to purchase and develop the beaches, planning to turn the island into a prosperous oceanfront town. By the 1920s Miami Beach was an incorporated city with modest homes, hotels, restaurants, and a main street suitable for automobiles.

Throughout the twenties, Miami Beach flourished as a resort and nightlife destination for Hollywood celebrities, strongly rivaling Las Vegas and Palm Springs. The city grew in size, population, and glamour. Aesthetic trends brought bold new architecture, art, and entertainment. Miami Beach survived the Great Depression and revived during World War II. In the 1950s the city’s population topped 28,000.

In 1954, the Fontainebleau Hotel was opened. Designed by Morris Lapidus, the Fontainebleau was created to be one of the greatest resorts in the world. With eleven stories and 554 guest rooms, it was by far the largest hotel on Miami Beach. The Fontainebleau attracted many great names in show business, both to stay and to perform, including Frank Sinatra, The Beatles, and Elvis Presley.

The 1970s were times of neglect and disrepair for the Fontainebleau and the rest of Miami Beach. The once-glorious city became a run-down neighborhood for the elderly and poor. The Miami Design Preservation League came to the rescue, working tirelessly to uphold the historic charm of South Beach. The glamour was put back into Miami Beach as an influx of fashion designers, models, and photographers sparked a Renaissance in South Beach in the 1980s.

By the 1990s, Miami Beach had experienced an explosion of nightclub venues attracting nationwide and international regulars. The city, still growing by the thousands, began to develop more magnificent buildings and rivaling hotels. The Fontainebleau kept up with the new era with a $1 billion expansion, adding a 36-story tower and almost a thousand new guest rooms.

The present day Fontainebleau Miami Beach is a fascinating combination of its glamourous past and luxurious present. You will enjoy your stay.

MIAMI SPICE – IT’S ALL HOT HERE! –PART IV (EATING AND DRINKING)

By:

 Hon. Laurel Myerson Isicoff

Hon. John K. Olson

Annabelle Torgman, law clerk to Judge Isicoff

Aaron Brownell, law clerk to Judge Olson

 

 

There are so many places to eat in Miami. The food is incredible. Unfortunately most of the good Cuban food is a trip from the hotel. Of course, everyone wants to go to Joe’s for stone crabs, but Joe’s doesn’t open until October 15. Any stone crab around when you visit will be frozen. Not quite as good. Prime 112, across the street from Joe’s, is super expensive and where the rich and famous eat all the time. Great steaks. The Fontainebleau where we are staying has many restaurants. Two of its dining options are Hakkasan and Scarpetta, both of which are highly recommended, but both are incredibly expensive.

It is fun to walk around Lincoln Road (a 5-10 minute cab ride from the hotel) and then have dinner at a restaurant. There are restaurants at all price points with indoor and outdoor seating (although, in September, you may want to eat inside . . .). You might want to try Nexxt Café. Great salads, but one salad is enough for at least two people. The café at Books and Books is also very good.

Terrific restaurants also abound in the Design District and Wynwood, neighborhoods in Miami proper, between 25th and 45th Streets.

If you decide to visit Biscayne National Park, you can head a little further south (about twenty minutes more) and eat lunch or dinner at the Islamorada Fish House, looking out over Florida Bay. It is an incredible experience – especially the grouper reuben. Located right next to Outdoor World, you can also buy those last minute Guy Harvey presents for the folks back home (or deer hunting paraphernalia . . .).

There are many other options. Miami Spice will be taking place while you are here. Take advantage of eating at some great and otherwise pricey restaurants for a fixed price and lots of tasty options. Check out the list of participating restaurants in the area: http://www.miamiandbeaches.com/special-offers/monthly-deals/miami-spice-month/miami-spice-at-glance?Program=Spice&SearchType=Restaurants&SubCategory=.

MIAMI SPICE – IT’S ALL HOT HERE! –PART III (CULTURAL ATTRACTIONS)

By:

 Hon. Laurel Myerson Isicoff

Hon. John K. Olson

Annabelle Torgman, law clerk to Judge Isicoff

Aaron Brownell, law clerk to Judge Olson

 

Visitors looking for less nature-oriented sights might want to check out Lincoln Road. Lincoln Road is a short cab ride from the hotel (5 – 10 minutes). There are lots of shops and restaurants and some interesting new architectural sites – a new theater for the symphony (they have an outside wall on which they project concerts being performed inside) and a parking garage so fancy they have parties in it (no kidding). You can also take a self-guided tour of the Holocaust Memorial on Meridian Avenue and 19th Street, right down the street from Lincoln Road.

We also have many theaters and concert halls, some on Lincoln Road and some over the causeway to Miami proper. You can see ballet, opera and Broadway at the Arsht Center and listen to incredible music at the acoustically perfect Knight Center across the street. They always have exciting and interesting programming going on.

Just down the street (actually between 25th and 45th Streets), again, in Miami proper, are the Design District and Wynwood. In addition to some incredible and interesting art galleries and graffiti-covered buildings, you can have a great meal at many terrific restaurants. The neighborhood is changing – high end stores like Cartier and Louis Vuitton have invaded the neighborhood, but you can still find some cute shops and great art galleries not too far away.

We aren’t New York, D.C. or Boston, but we do have a few museums. Just south of Lincoln Road (another five minutes by cab) is the Jewish Museum. The museum has a permanent collection but also some fascinating traveling exhibits. I am also told that close to Lincoln Road is the World Erotic Art Museum. I have never been there but it is close by. . . .

Across the bay, and very close to the federal courthouse complex where the Miami Division of the bankruptcy court is located, is the Florida History Museum. It always has interesting exhibits and then you can come visit Laurel! A real jewel in our crown is the Perez Art Museum, very close to the Arsht Center. It is architecturally fascinating and the food at its restaurant, Verde, is quite good. The view is spectacular. The collection is mostly modern art, but it does have rotating exhibits. Right down the street from the Perez Art Museum is Bayside Marketplace. There you can pick up a tour boat that will take you to look at where all the rich and famous live nearby.

If you are staying a few extra days consider heading down to Key West (the Flamingo entrance to the Everglades, Pennekamp, and Biscayne National Park are all on the way), or head up to Fort Lauderdale. It’s only about twenty miles away. Here are some things to see up there:

(1) Las Olas Boulevard. Enjoy luxury shopping and Fort Lauderdale’s best restaurants along Las Olas Boulevard located in the heart of downtown Fort Lauderdale.

(2) Funky Buddha Brewery. Funky Buddha is located at 1201 NE 38th Street, Oakland Park, FL 33334 and is famous for its unique and unusual beer flavors. The brewery has won numerous national awards.

(3) Butterfly World. Butterfly World is the world’s largest butterfly farm and is home to over 20,000 live butterflies. The butterfly park is located at 3600 W Sample Road, Coconut Creek, FL 33073.

(4) Morikami Museum and Japanese Gardens. This Japanese Cultural Center is located in at 4000 Morikami Park Rd, Delray Beach, FL 33446. The Morikami Museum provides numerous exhibitions designed to provide authentic Japanese cultural experiences.

(5) Seminole Hard Rock Hotel & Casino. Enjoy all the thrills and amenities at one of South Florida’s largest casinos. The casino is located at 1 Seminole Way, Hollywood, FL 33314.

MIAMI SPICE – IT’S ALL HOT HERE! –PART II (NATURAL WONDERS)

By:

 Hon. Laurel Myerson Isicoff

Hon. John K. Olson

Annabelle Torgman, law clerk to Judge Isicoff

Aaron Brownell, law clerk to Judge Olson

 

Miami has many incredible natural attractions, none more important and significant than the Everglades. There is no other ecosystem like it in the world. It is worth coming early or staying over to visit the Everglades, located only 45 minutes west of Miami Beach and it is well worth the drive. To truly appreciate the Everglades, go to Shark Valley and take a tram tour with a naturalist or park ranger. The trams run every two hours. You can get reservations for some tours. The earlier you are there the better. There is no place to buy food however so bring a picnic lunch. For information on the Everglades, and on how to book a Shark Valley tram tour, go to www.nps.gov/ever. You can end the day with an airboat ride. There are lots of choices – just find one that is convenient for you. I usually go on the Cooperstown boats. If you like fishing, head to the Flamingo entrance of Everglades National Park. It’s a bit further and you need to head southwest, but there are ranger lead tours available (on foot) and all the way in to the park – about 2 hours from the hotel – you can rent kayaks, or arrange to go fishing in Florida Bay.

If you enjoy botanical gardens, plan a visit to Fairchild Tropical Gardens (there is an arranged excursion in the NCBJ materials). It is about a 45 minute drive south of the hotel but well worth the trip if you enjoy looking at, and learning about, tropical plants from all over the world. You can learn more about visiting Fairchild at www.fairchildgarden.org.

If you are a snorkeling or diving enthusiast, and you are willing to drive a couple of hours, visit Biscayne National Park, www.nps.gov/bisc, the only living tropical reef in the continental United States, or John Pennekamp, www.pennekamppark.com, a state park at which you can rent kayaks or take a glass bottom boat out to the coral reef. (The Flamingo entrance to Everglades National Park is on the way . . .)

For those of you who like birds, we have Jungle Island. The big Monday night party will be at Jungle Island but there may be some attractions that will only be open during the day. If you are traveling with children this is a great place to take them. But, if you only have time for the party, if you are lucky, you will have the opportunity to pet a real boa constrictor or have your picture taken with birds all over your head. Jungle Island is about a 20 minute cab ride from the hotel.

Finally, of course there is the beach. . . Remember to bring sunblock and an umbrella. It will rain almost every afternoon for about an hour; otherwise it’s just hot. However, at the end of September it starts to cool down a little at night, and with the sea breeze it will be lovely.

MIAMI SPICE – IT’S ALL HOT HERE!–PART I–INTRODUCTION

By:

 Hon. Laurel Myerson Isicoff

Hon. John K. Olson

Annabelle Torgman, law clerk to Judge Isicoff

Aaron Brownell, law clerk to Judge Olson

 

Welcome to Miami!  As two of the bankruptcy judges who live in the greater Miami area, we have agreed (with the able assistance of our law clerks) to post some information about our city and surrounding area. We hope the posts will be helpful to conference attendees.

Our first post will concern some of the outstanding natural attractions in the Miami area. Next we will highlight a few of the many museums, architectural, and artistic venues in the area. Finally, we will give you several of the innumerable dining options in the city.

There is always a lot going on in Miami. We recommend that you check out the Greater Miami Chamber of Commerce Events Calendar at: www.miamiandbeaches.com/visitors/calendar.

We will only be able to highlight a few attractions, most close to where you will be. We hope you have a great time while you are in Miami, and take advantage of some of the many wonderful things to see and do. Whatever you do while you are here, enjoy, and feel free to call any of us if you have any questions.

Tower of Power to Take the NCBJ by Storm

The Final Night Dinner this year will feature Tower of Power, a 10-piece band that plays its own brand of rhythm and blues, jazz and soul. I have been listening to Tower of Power all afternoon while “working,” to inspire me to write this piece. Tower of Power has made more than 20 albums spanning several decades, so I am really just “scratching the surface” (think vinyl). I have been listening mostly to the band’s more recent albums (through a streaming service) to get a flavor of what the music will sound like in Miami Beach.

Tower of Power consists of a lead singer and various back-up singers, two players on tenor sax, one on baritone sax, two on trumpet, one on keyboards, one on guitar, and one on drums. The music is lyrical and powerful. The horn solos are impressive. Ray Greene joined the band in 2014 as the lead singer. He reminds me of James Brown, which is quite a compliment. The strong rhythm section makes the music very danceable.

I must confess, I had not heard of Tower of Power until recently. One thing that was readily apparent to me is that Tower of Power is REALLY GOOD. The musicians are seasoned and still in their prime.

My internet research reveals that in the last six months of this year alone Tower of Power will have played in Arizona, California, Colorado, Connecticut, Massachusetts, Michigan, Ohio, Oregon, Texas, New York, Washington, Austria, Belgium, Denmark, Germany, Japan, the Netherlands, Sweden, and the United Kingdom, and of course the pièce de résistance, at the NCBJ in Miami Beach. The band regularly plays to sellout crowds. Some of the venues are the San Jose Jazz Summer Fest, Saporro Jazz Festival, Tokyo Blue Note, and Winter Park Jazz Festival.

Tower of Power will also be quite a “catch” this summer at the Maine Lobster Festival.

Looking Back on the 2014 NCBJ Conference

The 2014 NCBJ conference in Chicago is now in the books, and was a success by any measure. More than 28 programs were offered over three days, on topics ranging from the Detroit bankruptcy case to honing trial skills to hot areas in consumer bankruptcy law.  Attendees were given the chance to talk to the panelists after many of the programs.

The Chicago River architectural boat cruise was a big hit, as was the reception at the Art Institute of Chicago, the farewell dinner (featuring Second City), the after-dinner party, and many other receptions, parties, and lunches. The weather was great; although snow has now begun to fly, conference attendees enjoyed mostly sunny days with highs in the 60s.

1,775 lawyers, spouses, and guests attended the conference. The figure includes 184 sitting, retired, or recalled judges.

Thanks to everyone who attended, with special thanks to Judge Wedoff, Judge Pepper, Judge Baer, Jeanne Sleeper, and the others who worked so hard to make the conference an educational, social, and entertainment success.

Don’t forget to mark your calendars for September 27-30, 2015, when Judge Nugent will host the 2015 NCBJ Conference at the Fountainebleau Miami Beach (a very nice hotel). Daytime highs are predicted to be in the low 80s, and the water warm enough for a swim!