International Insolvency

The panel explores the challenges with foreign asset discovery in chapter 15 proceedings. Most foreign discovery is obtained either pursuant to Federal Rule of Bankruptcy Procedure 2004 or through the application of the Hague Convention. But how effective are these methods given the cumbersome and often complicated process of obtaining discovery? Are there more effective and efficient methods toward obtaining these results? Do other foreign jurisdictions have less cumbersome and more expedited processes to propound this type of discovery?

This panel will explore the effectiveness (and, sometimes, lack thereof) of creditor strategies to restrict by contract a borrower’s ability to obtain bankruptcy relief, whether by limiting the ability of a corporate borrower to seek bankruptcy relief without certain stakeholder approvals, limiting the type of available bankruptcy relief, choosing which country’s bankruptcy laws will apply to an insolvency proceeding involving the borrower, bankruptcy-remote structuring techniques, and other means. For example, the U.S.

This panel will explore the roles, responsibilities, benefits, and liabilities in using independent directors through multi-jurisdictional insolvency proceedings and will discuss using directors strategically throughout the life of a company. The panelists will explain the three typical stages of a company where directors could be instructed — going concern, insolvency, and emergence from a restructuring — then explain the roles and responsibilities at each of these appointments.

Recent developments in offshore law have increased the effectiveness of the tools available to trace and recover assets through the offshore insolvency process. This panel will be conducted in a formal debate style, using the format of first proposition followed by first opposition, then second proposition followed by second opposition. The debates will look at the illegality defense, clawback claims, the dishonesty test and foreign officeholder recognition, among other issues. Each debate will be seven minutes with a four-minute closing, followed by a vote.