Emory Bankruptcy Developments Journal

Why Two Facets of Chapter 15 Rulings Hinder Cross-Border Insolvency Petitions in the United States
Hardy DeLaughter Executive Managing Editor, Emory Bankruptcy Developments Journal; J.D. Candidate, Emory University School of Law (2016); B.A., magna cum laude, Sally McDonnell Barksdale Honors College at the University of Mississippi (2013). I thank Professor Sue Payne for editing this Comment thoroughly, and I thank Professor Polly J. Price for influencing the interpretive canon of construction analysis in Section (II)(A)(3). Also, I thank the Emory Bankruptcy Developments Journal Editors and Staff Members for their contributions, especially Editor-in-Chief Armstead Lewis and Executive Managing Editors Michael P. Arwood and Nicole Hammond.

Abstract

Chapter 15 of the United States Bankruptcy Code, in its first decade, provided considerable relief for foreign debtors and their representatives in the American judicial system. Eventually, though, various United States courts disagreed upon two matters that impacted whether foreign debtors were able acquire relief from the Bankruptcy Code. First, courts disagreed about whether § 109(a), governing who could be a debtor in United States courts, applied to chapter 15 petitions for recognition. Second, courts used two separate dates to determine the debtor’s center of main interests, dealing with the level of connectedness to a country. Some courts chose the date of the petition for chapter 15 recognition; other courts looked further back and chose the beginning date of the foreign proceeding. For various reasons, § 109(a) was not supposed to apply to chapter 15 petitions, and the commencement date of the foreign proceeding was the correct date to determine a debtor’s center of main interests.

Introduction

Since chapter 15 became part of the Bankruptcy Code, there has been an increase in annual filings under it. 1See Chapter 15 Filings (2005–Present), Am. Bankr. Inst., http://abi-org.s3.amazonaws.com/Newsroom/Bankruptcy_Statistics/Chapter15Filings-Thru2Q2014.pdf (last modified Jan. 26, 2015); see also Van C. Durrer II, David M. Turetsky & Glenn S. Walter, Expanding Use of Chapter 15 Tests Its Protections and Limits, Financier Worldwide Mag., Jan. 2013, at 1. One might ask: Why are foreigners petitioning United States courts? For debtors and their foreign representatives, obtaining chapter 15 recognition of a foreign proceeding delivers great relief in the United States. 2At times, this Comment uses “debtor” and “foreign representative” interchangeably. They may refer to the same person, but not always. In the context of chapter 15 cases, there may be a debtor who has been involved in a foreign proceeding. Out of that proceeding, a court appoints a foreign representative (sometimes the debtor himself) to file for chapter 15 recognition of the foreign proceeding in the United States.

There are several reasons to apply for chapter 15 recognition of a foreign proceeding, including the automatic stay and trustee powers. 3See In re Tien Chiang, 437 B.R. 397, 402 (Bankr. C.D. Cal. 2010) (“The recognition of a foreign proceeding . . . brings certain statutory benefits to the debtor. Section 1520(a) specifies that, upon recognition: (a) the automatic stay provisions of §§ 361 and 362 apply with respect to a debtor’s U.S. property within the territorial jurisdiction of the United States; (b) §§ 363, 549 and 552 apply to a transfer of interest of the debtor in U.S. property; (c) the foreign representative may operate the debtor’s business in the United States and may exercise the powers of a trustee pursuant to §§ 363 (use, sale or lease of property) and 552 (postpetition effect of security interests); and (d) § 552 applies to U.S. property of the debtor.”). Legislative history indicates that § 542, not § 552, applies when chapter 15 recognition has been granted. See id. at 402 n.13 (citing H.R. Rep. No. 109-31, pt. 1, at 115 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 177). In one case, a foreign representative sought chapter 15 recognition because he wanted to prevent a creditor “from dissipating assets of [an] E-Trade account until final determination of the ownership thereof” had been determined in the foreign proceeding. 4Id. at 402–03.

Chapter 15 allots automatic relief through 11 U.S.C. § 1520. 5See In re Rede Energia S.A., 515 B.R. 69, 89 (Bankr. S.D.N.Y. 2014) (“If a foreign case is recognized . . . , certain relief automatically goes into effect, pursuant to 11 U.S.C. § 1520.”). Additionally, § 1521 grants a bankruptcy court discretion to provide supplementary relief that may be necessary to protect a debtor or its creditors. 6See id. at 89 (“[U]nder section 1521, a bankruptcy court may grant ‘any appropriate relief’ in order to ‘effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors.’”). Supplemental relief covers a lengthy range from gathering evidence to examining witnesses, even to giving a foreign representative administrative powers over a debtor’s assets. 7See id. at 89–90. Once chapter 15 recognition has been granted to a foreign proceeding, § 1507(a) permits a court to offer a foreign representative any additional support available in the Code or in any other United States law. 8See id. at 90 (citing 11 U.S.C. § 1507(a)–(b) (2012); In re Toft, 453 B.R. 186, 190 (Bankr. S.D.N.Y. 2011); H.R. Rep. No. 109-31).

Two topics among chapter 15 decisions have garnered opposing views in recent years. First, courts have speculated whether § 109(a), which governs who may be a debtor under the Code, applies to chapter 15 petitions. 9See 11 U.S.C. § 109; e.g., Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013); Transcript of Hearing, In re Bemarmara Consulting a.s., 13-13037-KG (Bankr. D. Del. Dec. 17, 2013) (LexisNexis, Federal Bankruptcy Law) [hereinafter Transcript of Bemarmara Hearing]. Second, courts have disagreed about when to determine a foreign party’s center of main interests (“COMI”), which is a phrase dealing with a petitioner’s level of connectedness to a foreign country. 10See 11 U.S.C. §§ 1502(4), 1516(c). Some courts determine COMI on the chapter 15 petition date in the United States. 11See, e.g., Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010). Other courts, however, determine COMI by looking back to the petitioner’s status at the beginning of the foreign proceeding (a “lookback period”). 12See, e.g., In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 72 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012).

This Comment proposes the following thesis: Chapter 15 recognizes bankruptcy’s intricacies in a globalized age. Courts in such an age should hold that § 109(a) does not apply to chapter 15 and that COMI is determined through a lookback period to the commencement of the foreign proceeding.

I. Background

A. Chapter 15’s International Predecessors

During the twentieth century, European Community Member States were treaty-bound “to enter into negotiations with each other” regarding court recognition and enforcement of judgments from among the Member States. 13Case C-1/04, Susanne Staubitz-Schreiber, 2006 E.C.R. I-701, I-704, Opinion of AG Ruiz-Jarabo Colomer. That duty inspired creation of the 1968 Brussels Convention on jurisdiction and judgment enforcement, which excluded insolvency proceedings but further developed cross-border cooperation among European courts. 14See id. at I-704–05. Between 1963 and 1980, a committee of European Community experts drafted two proposals to regulate cross-border insolvency, but they never agreed on the proposals. 15See id. at I-705.

International work toward the Model Law on Cross-Border Insolvency (“Model Law”) accelerated with the European Union Convention on Insolvency Proceedings (“Convention”). 16See Lavie v. Ran, 406 B.R. 277, 281 n.2 (S.D. Tex. 2009) (“[T]he drafters of the Model Law consulted the Convention’s terminology.”), aff’d sub nom. In re Ran, 607 F.3d 1017. During the mid-1990s, a group of national experts developed the Convention, which was simpler and less rigid than its attempted predecessors. 17See Staubitz-Schreiber, 2006 E.C.R. at I-705. In November 1995, the Convention was finalized and ready to go into force, but the United Kingdom did not sign it by the required deadline. 18See Case C-341/04, Eurofood IFSC Ltd., 2006 E.C.R. I-3813, I-3817, Opinion of AG Jacobs. As a result, the Convention did not become law. 19See Staubitz-Schreiber, 2006 E.C.R. at I-705–06.

Then, Germany and Finland reintroduced the failed Convention as the European Union Council Regulation on Insolvency Proceedings (“Regulation”). 20See Eurofood, 2006 E.C.R. at I-3818; see also Initiative of the Federal Republic of Germany and the Republic of Finland with a View to the Adoption of a Council Regulation on Insolvency Proceedings, Submitted to the Council on 26 May 1999, 1999 O.J. (C 221) 6, 8. See generally Council Regulation 1346/2000 of 29 May 2000 on Insolvency Proceedings, 2000 O.J. (L 160) 1 (EU). That initiative drew authority from the 1997 Treaty of Amsterdam and converted the unsuccessful Convention into a regulation that binds all European Union Member States (except Denmark). 21See Staubitz-Schreiber, 2006 E.C.R. at I-706 (“[T]he impulse for that transformation flourished in the fertile ground of Articles 61(c) EC . . . and 67(1) EC, . . . which were ‘communitarised’ under the Treaty of Amsterdam, thereby constituting one of the Treaty’s main achievements.”); Insolvency proceedings, EUR-Lex, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:l33110 (last updated Sept. 2, 2014) (“This law lays down common rules for cross-border insolvency proceedings in European Union (EU) countries, except Denmark.”); see also Eurofood, 2006 E.C.R. at I-3818 (“The Regulation was adopted on the basis of Articles 61(c) EC and 67(1) EC, on the initiative of Germany and Finland.”). See generally Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1. The Convention’s content was unaltered; only the legal status of the document changed. 22See Staubitz-Schreiber, 2006 E.C.R. at I-706; Eurofood, 2006 E.C.R. at I-3817 (“The text of the Regulation is . . . identical in all material respects to the text of the Convention.”). Even before the Regulation was adopted, EU Member States had embraced a “process of mutual recognition and enforcement of judgments in bankruptcy proceedings by means of bilateral treaties.” Staubitz-Schreiber, 2006 E.C.R. at I-705. Those treaties are listed in Regulation Article 44(1) and are replaced by the Regulation. See id.

After decades of trying to create cross-border insolvency laws, Europe succeeded with the Regulation. Subsequently, the United Nations provided cross-border insolvency laws to the global community by using many of the Regulation’s concepts. 23See In re Tien Chiang, 437 B.R. 397, 401 (Bankr. C.D. Cal. 2010) (stating that the Regulation and the Model Law have common concepts).

The United Nations Commission on International Trade Law (“UNCITRAL”) Model Law was introduced to the United Nations on December 15, 1997, and the General Assembly accepted it on January 30, 1998. 24See G.A. Res. 52/158 (Jan. 30, 1998). Since then, the United Nations has published and updated an enactment guide, produced in 2014 most recently. 25See G.A. Res. 68/107 (Dec. 18, 2013); U.N. Comm’n on Int’l Trade Law, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, U.N. Sales No. E.14.V.2 (2014). While the Model Law and the Convention—and the Regulation—are not identical completely, “the drafters of the Model Law consulted the Convention’s terminology.” 26Lavie v. Ran, 406 B.R. 277, 281 n.2 (S.D. Tex. 2009) (citing U.N. Comm’n on Int’l Trade Law, Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, 30th Sess., May 12–30, 1997, ¶ 75, U.N. Doc. A/CN.9/442 (Dec. 19, 1997) (noting definition inspiration from the Convention)), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010). Additionally,the Convention is better understood by consulting the Virgos-Schmit Report. Although the language of the Virgos-Schmit Report and Convention may not be identical to that in the Bankruptcy Code, the corresponding sections of both the Virgos-Schmit Report and the Convention [or Regulation] give insight into the origin of the terms used.Id. (citing H.R. Rep. No. 109-31, pt. 1, at 109 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 172). Compare Council Regulation 1346/2000, supra note 20, and Virgós-Schmit Report on the Convention on Insolvency Proceedings, at 1, Council Document 6500/96 (May 3, 1996), with UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25, and 11 U.S.C. §§ 1501–1532 (2012). As of 2016, forty-one nations have adopted the Model Law in forty-three jurisdictions. 27See Status UNCITRAL Model Law on Cross-Border Insolvency (1997), UNCITRAL, http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model_status.html (last visited May 2, 2016) (listing the nations alphabetically as Australia (2008), Benin (2015), Burkina Faso (2015), Cameroon (2015), Canada (2005), Central African Republic (2015), Chad (2015), Chile (2013), Colombia (2006), Comoros (2015), Congo (2015), Côte d’Ivoire (2015), Democratic Republic of the Congo (2015), Equatorial Guinea (2015), Gabon (2015), Greece (2010), Guinea (2015), Guinea-Bissau (2015), Japan (2000), Kenya (2015), Malawi (2015), Mali (2015), Mauritius (2009), Mexico (2000), Montenegro (2002), New Zealand (2006), Niger (2015), Philippines (2010), Poland (2003), Republic of Korea (2006), Romania (2002), Senegal (2015), Serbia (2004), Seychelles (2013), Slovenia (2007), South Africa (2000), Togo (2015), Uganda (2011), United Kingdom of Great Britain and Northern Ireland: British Virgin Islands (2003), Gibraltar (2014), and Great Britain (2006), United States of America (2005), Vanuatu (2013)). UNCITRAL’s Working Group V (Insolvency Law) has proposed a change to the Model Law that will affect how courts determine COMI; this Comment discusses that proposal later. 28See In re Gerova Fin. Grp., Ltd., 482 B.R. 86, 92 (Bankr. S.D.N.Y. 2012) (citing U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Rep. on its 41st Sess., Apr. 30–May 4, 2012, ¶ 60, U.N. Doc. A/CN.9/742 (May 8, 2012) [hereinafter Rep. on Working Group V’s 41st Sess.] (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)).

B. Chapter 15’s History in the United States

In 2005, Congress passed the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”), which added chapter 15 to the Code. 29See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 801, 119 Stat. 23, 134–45. Congress adopted the Model Law as chapter 15 with very few changes. 30Compare id., with UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25.

Simultaneously, BAPCPA repealed § 304, 31See In re Ran, 607 F.3d at 1020 (“[BAPCPA] replaced former Section 304 of the Bankruptcy Code . . . .”). which was the former bankruptcy section that dealt with foreign proceedings. 32See In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 69 n.6 (Bankr. S.D.N.Y. 2011) (“Chapter 15 was adopted, effective October 17, 2005, replacing § 304 of the Bankruptcy Code, which was repealed.”). In its entirety, § 304 conveyed a broad generality about cases ancillary to foreign proceedings and contained slightly more than 250 words, whereas chapter 15 is intricate and has over five thousand words. 33See 11 U.S.C. § 304 (2000); 11 U.S.C. §§ 1501–1532 (2012). A corresponding Senate report to § 304 confirms a preference for simplicity by stating that the guidelines were “designed to give the court the maximum flexibility in handling ancillary cases.” 34S. Rep. No. 95-989, at 35 (1978) (“Principles of international comity and respect for the judgments and laws of other nations suggests that the court be permitted to make the appropriate orders under all of the circumstances of each case, rather than being provided with inflexible rules.”).

C. Chapter 15’s Relevant Provisions in the Bankruptcy Code

Section 1501 declares that the purpose of chapter 15 “is to incorporate the Model Law . . . to provide effective mechanisms for dealing with cases of cross-border insolvency.” 3511 U.S.C. § 1501. Among its objectives are fairness, efficiency, and cooperation between United States courts and courts in other nations. 36See id. To accomplish those objectives, § 1501 applies to several specified categories, including when assistance is sought by a foreign court or a foreign representative and when cases are pending concurrently in the United States and abroad. 37See id. (“This chapter applies where – (1) assistance is sought in the United States by a foreign court or a foreign representative in connection with a foreign proceeding; (2) assistance is sought in a foreign country in connection with a case under this title; (3) a foreign proceeding and a case under this title with respect to the same debtor are pending concurrently; or (4) creditors or other interested persons in a foreign country have an interest in requesting the commencement of, or participating in, a case or proceeding under this title.”).

Interestingly, § 1501 states that it does not apply to § 109(b) and (e), but this Comment focuses heavily on whether nearby § 109(a) applies to chapter 15 cases. 38See id. The contents of § 109(b) and (e) are not relevant to this Comment. Section 109(a) states that a debtor must be “a person that resides or has a domicile, a place of business, or property in the United States, or a municipality.” 3911 U.S.C. § 109.

When a debtor seeks chapter 15 status, he turns to § 1515, which contains the rules to applying for recognition of the foreign proceeding. 40See 11 U.S.C. § 1515. In this scenario, “[a] foreign representative applies to the court for recognition of a foreign proceeding in which the foreign representative has been appointed.” 41Id. Various documents accompany the application, including one that identifies all judicial proceedings in which the petitioner is involved outside of the United States. 42See id. If a court believes that § 1515’s requirements are met, then it will grant recognition of the foreign proceeding under § 1517. 43See 11 U.S.C. § 1517. Section 1517 states, however, that an order granting recognition is subject to § 1506, which lets courts refuse to act in a way manifestly contrary to United States public policies. 11 U.S.C. §§ 1506, 1517.

Finally, § 1508 guides any court that interprets chapter 15. 44See 11 U.S.C. § 1508. The section directs that “the court shall consider [chapter 15’s] international origin, and the need to promote an application of this chapter that is consistent with the application of similar statutes adopted by foreign jurisdictions.” 45Id.

II. Analysis

Multiple circuits disagree about two issues in current chapter 15 case law: (1) the applicability of § 109(a) to chapter 15; and (2) the proper time to determine COMI in a cross-border insolvency case. This Comment discusses two sides of each issue, respectively, and concludes that § 109(a) does not apply to chapter 15 and that COMI is determined through a lookback period to the commencement of the foreign proceeding.

A. Section 109(a) Requirements in the United States

Section 109(a) requires a person petitioning for bankruptcy to reside or have a domicile, a place of business, or property in the United States. 46See 11 U.S.C. § 109. Regardless of whether Congress considered how this section affects chapter 15, a question emerges: Does § 109(a) apply to cases filed under chapter 15 of the Code? The following subsections discuss how courts have addressed that question in recent years, concluding that § 109(a) does not apply to chapter 15 recognition petitions.

1. Section 109(a) Applies to Chapter 15

Even though chapter 15 became part of the Code in 2005, courts did not address whether general provision § 109(a) applies to chapter 15 proceedings until late 2013. 47See Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 247 (2d Cir. 2013); see also In re Octaviar Admin. Pty Ltd., 511 B.R. 361, 367 (Bankr. S.D.N.Y. 2014) (“[T]he Second Circuit issued its decision, holding for the first time that a debtor that is the subject of a foreign proceeding must meet the requirements of section 109(a) of the Bankruptcy Code before a bankruptcy court may grant recognition of the foreign proceeding.”). In December 2013, the Second Circuit addressed § 109(a)’s applicability in Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet). 48See 737 F.3d at 246. The court declared that § 103(a) applies all of chapter 1 to the Code, including to chapter 15. 49See id. at 247 (“Section 103(a) of “Title 11 provides that, other than for an exception not relevant here, Chapter 1 ‘of this title . . . appl[ies] in a case under chapter 15.’”). By simple extrapolation then, § 109, within chapter 1, must apply to chapter 15. 50See id. (“Section 109 . . . is within Chapter 1 of Title 11 and so, by the plain terms of the statute, it applies ‘in a case under chapter 15.’”). Consequently, § 109(a) “creates a requirement that must be met by any debtor,” regardless of the controlling chapter. 51Id. Courts are unable to grant chapter 15 recognition of a foreign proceeding until the debtor satisfies § 109(a). 52See id. (“The debtor . . . must meet the requirements of Section 109(a) before a bankruptcy court may grant recognition of the foreign proceeding.”).

The Second Circuit acknowledged that the Model Law “does not contain an express requirement akin to Section 109(a).” 53Id. at 251 (citing UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25). The Model Law allows adopting states, however, to modify, or even omit, sections that they do not want in their national laws. 54See id. (“[T]he Model Law also states that ‘a State may modify or leave out some of its provisions.’” (quoting UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25, at Part 2 ¶ 12)). UNCITRAL omitting any language similar to § 109(a) does not outweigh Congress’s plain language in chapter 1. 55See id. (“[T]he omission of Section 109(a), or its equivalent, from the Model Law does not suffice to outweigh the express language Congress used in adopting Sections 109(a) and 103(a).”). Without citing any evidence, the court speculated that Congress may have wanted to limit chapter 15’s relief because of additional relief available in other chapters. 56Id. (“Congress . . . may have intended to limit the relief provided by Chapter 15 because it knew that additional relief was already available outside of Chapter 15.”). Therefore, the Second Circuit held that § 109(a) applies to chapter 15, and in the particular case, the matter was remanded to determine if the debtor satisfied § 109(a). 57See id.

In the remanded case, In re Octaviar Administration Pty Ltd., the bankruptcy court reiterated that the Code’s plain language led to an understanding that § 109(a) sets certain eligibility requirements, even for chapter 15 petitions. 58See 511 B.R. 361, 364 (Bankr. S.D.N.Y. 2014) (“[U]nder a plain reading of the relevant statutory provisions, a petition in a chapter 15 case is required to meet the eligibility requirements set forth in section 109(a) of the Bankruptcy Code.”). The Octaviar court pointed out that the Second Circuit’s Barnet holding was the first time a court said that a debtor subject to a foreign proceeding had to meet § 109(a)’s requirements. 59See id. at 367. To align with Barnet, and chapter 15 generally, the court stated that fostering international cooperation in bankruptcy proceedings is possible once a debtor makes a showing of a domicile, place of business, or property in the United States. 60See id. at 369. Only then may courts grant recognition under § 1517. 61See id. The court examined numerous arguments and held that the debtor had property in the United States to meet § 109(a)’s requirements. 62See id. at 375 (“The Court concludes that because Octaviar’s claims and causes of action against Drawbridge constitute property located in the United States, the Foreign Representatives satisfy the eligibility requirements of section 109(a) of the Bankruptcy Code. . . . Drawbridge does not dispute that the funds in the Client Trust Account constitute property in the United States pursuant to section 109(a) of the Bankruptcy Code. . . . Notably, Drawbridge concedes that prepetition retainers and transfers of property can serve as a basis for section 109(a) compliance and do not, in and of themselves, constitute grounds for a finding of bad faith.”).

Later in the same year, the In re Suntech Power Holdings Co. court applied § 109(a) to a chapter 15 petition. 63See 520 B.R. 399, 411 (Bankr. S.D.N.Y. 2014) (“This [§ 109(a)] requirement applies to foreign debtors seeking relief under chapter 15.” (citing Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 247 (2d Cir. 2013))). Evidence demonstrated that a Bank of New York account existed before the chapter 15 proceeding. 64See id. at 412. The court held that a bank account is enough to satisfy § 109(a). 65Id. (citing In re Octaviar, 511 B.R. at 372–73; In re Yukos Oil Co., 321 B.R. 396, 407 (Bankr. S.D. Tex. 2005)). Furthermore, the court declared that § 109(a) rejects drawn-out investigations into how the bank account was acquired and what amount of money it contains, thus lowering the restrictive bar set by § 109(a) and allowing the easily-demonstrable existence of a bank account to satisfy connection to the United States. 66See id. at 413 (citing In re Octaviar, 511 B.R. at 373).

In 2015, the Bankruptcy Court for the Southern District of New York expanded eligibility that satisfies § 109(a) in In re Berau Capital Resources PTE Ltd. 67See 540 B.R. 80 (Bankr. S.D.N.Y. 2015). The court noted that scholars have criticized courts’ application of § 109(a) to chapter 15, but Barnet makes the application binding precedent in the Second Circuit, causing the court to apply it. 68See id. at 81–82 (citing Daniel M. Glosband & Jay Lawrence Westbrook, Chapter 15 Recognition in the United States: Is a Debtor “Presence” Required?, 24 Int’l Insolvency Rev. 28 (2015)). The court looked to contract law and found that contracts create intangible property rights for a debtor. 69See id. at 83 (“Contracts create property rights for the parties to the contract. A debtor’s contract rights are intangible property of the debtor. (citing Slater v. Town of Albion (In re Albion Disposal, Inc.), 217 B.R. 394, 407–08 (W.D.N.Y. 1997) (“[I]t is well-established . . . that a debtor’s contractual rights—including rights arising under post-petition contracts—are included in the property of the estate.”); U.S. Bank N.A. v. Am. Airlines, Inc., 485 B.R. 279, 295 (Bankr. S.D.N.Y. 2013), aff’d, 730 F.3d 88 (2d Cir. 2013); Wallach v. Nowak (In re Sherlock Homes of W.N.Y., Inc.), 246 B.R. 19, 23–24 (Bankr. W.D.N.Y. 2000) (stating that listing contracts between the debtor/broker dealer and prospective sellers bestowed contractual rights upon the parties and the contract rights were assets of the debtor))). From there, the court was able to show that § 109(a) can be satisfied by an attorney retainer agreement between a foreign representative and an attorney in the United States or by a debtor holding an indenture for a large amount of U.S. currency. 70See id. at 82.

2. Section 109(a) Does Not Apply to Chapter 15

Four cases apply § 109(a) to chapter 15, but two other cases argue against applying it. 71Compare Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013), and In re Berau, 540 B.R. 80, and In re Suntech, 520 B.R. at 412, and In re Octaviar, 511 B.R. 361, with In re Soundview Elite, Ltd., 503 B.R. 571 (Bankr. S.D.N.Y. 2014), and Transcript of Bemarmara Hearing, supra note 9. All of these rulings have been handed down since late 2013, creating a stage for a possible circuit split. 72Compare In re Barnet, 737 F.3d 238, with In re Octaviar, 511 B.R. 361, and In re Soundview Elite, 503 B.R. 571, and Transcript of Bemarmara Hearing, supra note 9.

A mere six days after the Second Circuit issued Barnet, the Bankruptcy Court for the District of Delaware issued In re Bemarmara, which questions § 109(a)’s place in chapter 15 petitions. 73See Transcript of Bemarmara Hearing, supra note 9, at 8 (stating that the case was from December 11, 2013). The court acknowledged that the Second Circuit applied chapter 1 eligibility requirements to a debtor in a foreign proceeding. 74See id. The Bemarmara court interpreted Barnet as saying that a debtor who does not have assets in the United States is disqualified from applying for chapter 15 recognition. 75See id. (“[T]he absence of assets in the United States disqualifies a Chapter 15 filing.”). The bankruptcy court did not hesitate to disagree with the Second Circuit because Barnet was not controlling precedent. 76See id. (“[T]his Court does not agree with the decision of the Second Circuit.”). In fact, the court declared “that there is a strong likelihood that the Third Circuit, likewise, would not agree with that [Barnet] decision.” 77Id. at 8–9.

The Bemarmara court explained its disagreement with the Second Circuit by turning to the language of § 109(a) first, which “provides for Debtors under this title.” 78Id. at 9 (emphasis added). The court illustrated that a debtor is not petitioning for recognition; instead, a foreign representative seeks recognition of a foreign proceeding. 79See id. (“[A] Foreign Representative . . . is petitioning the Court, not the Debtor in the foreign proceeding.”). A foreign representative’s task is to aid the foreign proceeding. 80See id. (“The Foreign Representative is asking for recognition in aid of that foreign proceeding.”). Accordingly, § 109(a) does not regulate foreign representatives. 81See id. (“[T]he requirements of Section 109(a) do not control.”). The lack of discussion in chapter 15 about § 109(a) may be an error, and there may have been Congressional intent to exclude the section from applying to chapter 15. 82See id. (omitting evidence or a source for this claim against applying § 109(a) to chapter 15).

The court turned to § 1502 for a second reason not to apply § 109(a). 83See id. (“I would also read to you from Section 1502 which is the definition section for Chapter 15 . . . .”). The court emphasized that § 1502 “defines Debtor as an entity that is the subject of a foreign proceeding.” 84Id. Importantly, § 1502’s definition does not create any asset-ownership requirement in the United States. 85See id. (“[T]here was nothing in that definition . . . [that] reflects upon a requirement that [the] Debtor have assets.”). The definition is straightforward: “A Debtor is an entity that is involved in a foreign proceeding” without any requirement of having assets in the United States. 86Id. Note that the Soundview Elite decision may create a tangential problem for determining who may be a debtor under the Code. See 503 B.R. 571 (Bankr. S.D.N.Y. 2014). The Bankruptcy Court for the Southern District of New York issued Soundview Elite in January 2014, in between the Barnet and Octaviar decisions of December 2013 and June 2014, respectively. See 737 F.3d 238 (2d Cir. 2013); 511 B.R. 361, 372 (Bankr. S.D.N.Y. 2014); 503 B.R. 571. The Octaviar court applied § 109(a) to a chapter 15 proceeding, but before then, the Soundview Elite court stated explicitly that chapter 15 “[r]ecognition . . . is not governed by domicile.” 503 B.R. at 595 n.67; see also 511 B.R. at 364 (stating that 11 U.S.C. § 109(a) applies to chapter 15). Instead, recognition of the foreign proceeding is determined by the debtor’s COMI. See In re Soundview Elite, 503 B.R. at 595 n.67 (“[R]ecognition . . . turns on the COMI of the foreign debtor.” (citing 11 U.S.C. § 1517(a)(1) (2012))); In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 127–28 (Bankr. S.D.N.Y. 2008), aff’d, 389 B.R. 325 (S.D.N.Y. 2008)). At least in the Southern District of New York then, § 109(a)’s reference to domicile may not apply to chapter 15 cases, even though § 109 discusses eligibility, and § 1517 discusses recognition. Compare In re Soundview Elite, 503 B.R. at 595 n.67, with 11 U.S.C §§ 109, 1517.

3. Why This Comment Suggests § 109(a) Does Not Apply to Chapter 15

When addressing the question of whether § 109(a) applies to chapter 15 cases, courts should hold that the section has no bearing on the recognition of cross-border proceedings for at least three reasons.

First, the structure of chapter 15, especially §§ 1515 through 1524 about recognition, contains everything that a court needs to handle a cross-border bankruptcy case. 87See 11 U.S.C. §§ 1501–1532; see also In re Soundview Elite, 503 B.R. at 595 n.67 (“Recognition under U.S. law, [is] determined under Bankruptcy Code sections 1515 through 1524 . . . .”). Regarding statutory interpretation, scholars have noted that

statutory language is the most solid indication of what legislators were trying to do. If the mental-state intentions of legislators are important, they are most straightforwardly represented in the statutory words. This does not mean we can move easily from the words of a statute to the dominant intentions of most legislators. Because few legislators review statutory language carefully, and most may have little idea what it contains, the precise terms of any single provision may tell us rather little about what most legislators wanted; but it often remains true that no other guides to intentions are more reliable. 88Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions 37 (Found. Press 1999).

Congress likely did not consider making significant changes to chapter 15 because it is a model international law, and “[a]ny departures from the actual text of the Model Law . . . were as narrow and limited as possible.” 89Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 322 & n.15 (5th Cir. 2010) (quoting Jay Lawrence Westbrook, Chapter 15 at Last, 79 Am. Bankr. L.J. 713, 720 (2005) [hereinafter Westbrook, Chapter]).

Section 1509(a), which governs a right of direct access, states that a foreign representative commences a case when he files a chapter 15 petition with a court. 90See 11 U.S.C. § 1509(a) (“A foreign representative may commence a case under section 1504 by filing directly with the court a petition for recognition of a foreign proceeding under section 1515.”); see also id. § 1504 (“A case under this chapter is commenced by the filing of a petition for recognition of a foreign proceeding under section 1515.”). If the court recognizes that foreign proceeding, then it grants comity to the foreign representative and cooperates with him. 91See id. § 1509(b)(3) (“If the court grants recognition under section 1517 . . . a court in the United States shall grant comity or cooperation to the foreign representative.”). Section 1517(a) states that a court will grant recognition if certain criteria are met. 92See id. § 1517(a). The foreign representative must be a person or body. 93Id. § 1517(a)(2). Additionally, the petition must meet § 1515’s requirements. 94Id. § 1517(3). Section 1517 does not mention any of the criteria set forth in § 109(a). 95See id. § 1517. Throughout chapter 15, however, Congress referred to various sections of the Code. 96See, e.g., id. § 1501(c)(1) (referring to § 109(b)); id. § 1501(c)(2) (referring to § 109(e)); id. § 1505 (referring to § 541); id. § 1509(e) (referring to § 306); id. § 1511 (referring to §§ 301–303); id. § 1513(b)(1) (referring to §§ 507 and 726); id. § 1517(d) (referring to § 350); id. § 1519(f) (referring to § 362(a), (b), and (n)); id. § 1520(a)(1) (referring to §§ 361 and 362); id. § 1520(a)(2) (referring to §§ 363, 549, and 552); id. § 1520(a)(3) (referring to §§ 363 and 552); id. § 1520(a)(4) (referring to § 552); id. § 1521(a)(7) (referring to §§ 522, 544, 545, 547, 548, 550, and 724(a)); id. § 1521(f) (referring to § 362(a), (b), and (n)); id. § 1522(d) (referring to § 322); id. § 1523(a) (referring to §§ 522, 544, 545, 547, 548, 550, 553, and 724(a)); id. § 1528 (referring to 11 U.S.C. § 541(a) and 28 U.S.C. § 1334(e)); id. § 1529(4) (referring to § 305); id. § 1531 (referring to § 303); see also id. § 304 (repealed 2005) (not referring to § 109(a) nor any other section, for that matter).

Applying the expressio unius est exclusio alterius interpretive canon of construction, which states that mentioning one matter excludes another matter, allows courts to hold that § 109(a) does not apply to chapter 15 because Congress omitted any reference to the section and its requirements. 97See ImagePoint, Inc. v. JPMorgan Chase Bank, N.A., No. 12 Civ. 7183 (LAK) (GWG), 2014 U.S. Dist. LEXIS 87695, at *40 (S.D.N.Y. June 25, 2014) (“Under that doctrine [of expressio unius], ‘when certain matters are mentioned . . . , other similar matters not mentioned were intended to be excluded.’” (quoting Plumbers & Steamfitters Local No. 150 Pension Fund v. Vertex Const. Co., 932 F.2d 1443, 1449 (11th Cir. 1991)) (citing In re Celotex Corp., 487 F.3d 1320, 1334 (11th Cir. 2007); Covington Square Assocs., LLC v. Ingles Mkt., Inc., 641 S.E.2d 266 (Ga. Ct. App. 2007))); see also Rushton v. ANR Co. (In re C.W. Mining Co.), 740 F.3d 548, 560 (10th Cir. 2014) (“Common sense, reflected in the canon expressio unius est exclusio alterius, suggests that the specification of [one provision] implies the exclusion of others.” (quoting Elwell v. Okla. ex. rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1312 (10th Cir. 2012))); Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 324 & n.22 (5th Cir. 2010) (“Generally where there are enumerated exceptions ‘additional exceptions are not to be implied, in the absence of a contrary legislative intent.’ And the oft recited maxim expressio unius est exclusio alterius carries weight.” (quoting Andrus v. Glover Const. Co., 446 U.S. 608, 616–17 (1980)) (citing Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 938–39 (5th Cir. 1998))); Neidich v. Lorenzo (In re Lorenzo), No. 13-23100-CIV-ROSENBAUM, 2014 U.S. Dist. LEXIS 64321, at *10–11 (S.D. Fla. May 8, 2014) (citing TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”); In re Sunahara, 326 B.R. 768, 781 (B.A.P. 9th Cir. 2005) (using expressio unius est exclusio alterius to state that § 1329(b) applies some “Code sections to plan modifications but does not apply § 1325(b)”); In re Davis, 439 B.R. 863, 867 (Bankr. N.D. Ill. 2010)). In addition, unique § 1508 instructs courts to consider the international origin of chapter 15 “and the need to promote an application of [chapter 15] that is consistent with the application of similar statutes adopted by foreign jurisdictions.” 9811 U.S.C. § 1508; see also British Am. Ins. Co. v. Fullerton (In re British Am. Ins. Co.), 488 B.R. 205, 212 (Bankr. S.D. Fla. 2013) (“International uniformity is a primary goal of the Model Law and thus of chapter 15.” (citing 11 U.S.C. §§ 1501(a), 1508)); Lavie v. Ran, 406 B.R. 277, 281 (S.D. Tex. 2009) (“Unique to the interpretation of Chapter 15 of the Bankruptcy Code, ‘the court shall consider its international origin, and the need to promote an application of [Chapter 15] that is consistent with the application of similar statutes adopted by foreign jurisdictions.’” (citing 11 U.S.C. § 1508 (2006))), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010). That pronouncement encourages courts not to look outside of chapter 15 for additional provisions that might be applicable to cross-border proceedings. 99See 11 U.S.C. § 1508 (2012).

The United Nations wanted the Model Law to be adopted with very few changes (if any at all) to achieve international legal harmony. 100See In re British Am. Ins. Co., 488 B.R. at 212 (“UNCITRAL expressed the desire that the Model Law be enacted by adopting countries with as few changes as possible ‘in order to achieve a satisfactory degree of harmonization and certainty.’” (citing Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, supra note 25, at ¶ 12)). If a court applies a provision to chapter 15, then the court defeats § 1508’s objective of consistency among nations adopting the Model Law. 101See 11 U.S.C. § 1508.

Second, Bemarmara addresses something that was overlooked previously. 102See Transcript of Bemarmara Hearing, supra note 9, at 9 (discussing the applicability of § 109(a)). Section 109(a) determines who may be a debtor under the Code, but chapter 15 considers recognition of a foreign representative, not of a debtor from a foreign proceeding. 103See 11 U.S.C. § 109(a); Transcript of Bemarmara Hearing, supra note 9, at 9. Once a foreign court concludes a debtor’s insolvency proceeding, that court appoints a foreign representative to other nations’ courts to ensure that the debtor’s applicable assets and affairs are liquidated or reorganized according to the foreign proceeding. 104See 11 U.S.C. § 101(24). Section 109(a) does not control because it regulates a person who is not seeking recognition in chapter 15. 105See Transcript of Bemarmara Hearing, supra note 9, at 9. Even if § 109(a) did apply, in the context of a business, courts have held that “[a] principal place of business is not required to satisfy Section 109(a)’s requirement, rather it is merely ‘a’ place of business.” In re Zais Inv. Grade Ltd. VII, 455 B.R. 839, 844 (Bankr. D.N.J. 2011) (citing In re Paper I Partners, L.P., 283 B.R. 661, 672 (Bankr. S.D.N.Y. 2002)).

Chapter 15 provides examples of Congress distinguishing between debtors and foreign representatives. In § 1502’s definitions, the term “debtor” is used several times, but the definitions never state, claim, or even insinuate that a debtor is also a foreign representative. 106See 11 U.S.C. § 1502. Section 1524 handles intervention by a foreign representative and distinguishes between the two terms by saying that “the foreign representative may intervene in any proceedings . . . in which the debtor is a party.” 107Id. § 1524. Section 1518(2) requires prompt filing of any status change caused by any of a debtor’s foreign proceedings. 108See id. § 1518(2) (“From the time of filing the petition for recognition of a foreign proceeding, the foreign representative shall file with the court promptly a notice of change of status concerning . . . any other foreign proceeding regarding the debtor that becomes known to the foreign representative.”). Section 1521(b) allows a court to grant asset-distribution powers to a foreign representative. 109See id. § 1521(b) (“[T]he court may, at the request of the foreign representative, entrust the distribution of all or part of the debtor’s assets located in the United States to the foreign representative or another person.”). Several more sections address debtors and foreign representatives, but in all of the sections, chapter 15 treats them as separate individuals. 110See, e.g., id. § 1509(f) (“Notwithstanding any other provision of this section, the failure of a foreign representative to commence a case or to obtain recognition under this chapter does not affect any right the foreign representative may have to sue in a court in the United States to collect or recover a claim which is the property of the debtor.”); id. § 1512 (“Upon recognition of a foreign proceeding, the foreign representative in the recognized proceeding is entitled to participate as a party in interest in a case regarding the debtor under this title.”); id. § 1515(c) (“A petition for recognition shall also be accompanied by a statement identifying all foreign proceedings with respect to the debtor that are known to the foreign representative.”); id. § 1519(a) (“From the time of filing a petition for recognition until the court rules on the petition, the court may, at the request of the foreign representative, where relief is urgently needed to protect the assets of the debtor or the interests of the creditors, grant relief of a provisional nature . . . .”); id. § 1519(a)(2) (“[E]ntrusting the administration or realization of all or part of the debtor’s assets located in the United States to the foreign representative or another person . . . .”); id. § 1520(a)(3) (“[T]he foreign representative may operate the debtor’s business and may exercise the rights and powers of a trustee under and to the extent provided by sections 363 and 552.”); id. § 1521(a) (“Upon recognition of a foreign proceeding, . . . where necessary to effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief . . . .”); id. § 1521(a)(5) (“[E]ntrusting the administration or realization of all or part of the debtor’s assets within the territorial jurisdiction of the United States to the foreign representative or another person . . . .”); id. § 1523(a) (“Upon recognition of a foreign proceeding, the foreign representative has standing in a case concerning the debtor pending under another chapter of this title . . . .”).

What if a foreign representative is also the debtor? Nothing in chapter 15 precludes that scenario. 111See id. §§ 1501–1532. How does the application of § 109(a) change if the debtor and the foreign representative are the same? Quite simply, the analysis does not change. Section 109(a)’s perspective focuses on who may be a debtor under the Code. 112See id. § 109(a). Separately, chapter 15 focuses on whether recognition of a foreign proceeding will be granted because of the foreign representative’s petition. 113See id. § 1517. The debtor, regardless of whether he is also the foreign representative, is a debtor in another jurisdiction already. The petition to the United States is to recognize the foreign proceeding so that the debtor’s United States assets can be managed according to the foreign proceeding. 114Or, vice versa, where a foreign proceeding seeks assistance with a case that arose under chapter 15, another category where chapter 15 applies. See id. § 1501(b)(2). From a statutory angle, that scenario should never matter because one section pertains to a debtor, and the other section pertains to a foreign representative. 115See id. §§ 109(a), 1517.

This Comment emphasizes that courts should not apply § 109(a) to chapter 15 proceedings. Chapter 15 contains all necessary requirements for granting recognition to a foreign proceeding, and Bemarmara illustrates that uses of “debtor” and “foreign representative” are exclusive of one another in various sections of the Code. 116See id. §§ 109(a), 1501–1532; Transcript of Bemarmara Hearing, supra note 9.

B. Center of Main Interests Date Determination

Courts disagree about when to determine COMI under chapter 15. The concept appears only three times in chapter 15. 117See 11 U.S.C. § 1502(4) (“‘[F]oreign main proceeding’ means a foreign proceeding pending in the country where the debtor has the center of its main interests . . . .”); id. § 1516(c) (“[T]he debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the center of the debtor’s main interests.”); id. § 1517(b)(1) (“Such foreign proceeding shall be recognized—as a foreign main proceeding if it is pending in the country where the debtor has the center of its main interests . . . .”). Despite appearing in the Code infrequently, COMI has generated discussion in many chapter 15 case opinions, and the following sections analyze the two timing options and assert the correct time to determine a debtor’s COMI in bankruptcy proceedings.

1. COMI Determined at Chapter 15 Petition Date

In Lavie v. Ran, the District Court for the Southern District of Texas examined various COMI aspects and presumed that a business debtor’s registered office or an individual debtor’s habitual residence is its COMI—noting, however, that the presumption can be defeated by contrary evidence. 118See 406 B.R. 277, 283 (S.D. Tex. 2009), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010) (“[T]he debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the center of the debtor’s main interests.” (quoting 11 U.S.C. § 1516(c) (2006)) (citing In re Tri-Continental Exch., 349 B.R. 627, 634 (Bankr. E.D. Cal. 2006))). The court turned to European courts that interpreted COMI in several cases as an individual debtor’s habitual or permanent residence because chapter 15 (specifically § 1502) fails to define COMI. 119See 11 U.S.C. § 1502; Lavie, 406 B.R. at 283 (citing Case C-452/93, Pedro Magdalena Fernández v. Comm’n, 1994 E.C.R. 4295; Case 13/73, Anciens Établissements D. Angenieux fils aîné v. Hakenberg, 1973 E.C.R. 935). To European courts, habitual residence depends on whether the debtor intends to stay in the location permanently, on the length of time spent in the location, and on the occupational or familial ties to the area. See Lavie, 406 B.R. at 283 (citing Case 41/84, Pinna v. Caisse d’allocations familiales de la Savoie, 1986 E.C.R. 1). These factors are not determinative, however, if other evidence establishes clearly that the debtor’s COMI is somewhere else. See id. (citing Case 284/87, Schäflein v. Comm’n, 1988 E.C.R. 4475). Then, the court addressed a question of COMI timing as it relates to chapter 15. 120See Lavie, 406 B.R. at 283–84.

The district court felt required “to make an independent finding at the time the petition for recognition [was] filed in the U.S. court,” instead of looking back to the beginning of the foreign proceeding because the chapter 15 is written in present tense. 121Id. at 283–85 (citing In re SPhinX, Ltd., 351 B.R. 103, 120 n.22 (Bankr. S.D.N.Y. 2006), aff’d, 371 B.R. 10 (S.D.N.Y. 2007)) (“The use of the present tense implies that the court’s . . . analysis should focus on whether the debtor has [a presence] in the foreign country when the foreign representative files for recognition under Chapter 15.”). Additionally, “[t]he Bear Stearns court agreed, noting that ‘[i]f the debtor does not have its center of main interests or at least an establishment in the country of the foreign proceedings, the bankruptcy court should not grant recognition . . . .’” Id. at 285 (citing In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 389 B.R. 325, 334 (S.D.N.Y. 2008); In re SPhinX, 351 B.R. at 120 n.22). Additionally, courts analyze COMI when recognition petitions are filed, and so, the analysis should focus on the present, not a lookback period. 122See id. at 285 (“Because courts undertake the . . . analysis when the foreign representative files for recognition, it follows that the court should weigh only the evidence as it exists at the time of filing in the U.S. court.”). Therefore, Lavie instructs that COMI is determined when a foreign representative files a chapter 15 petition for recognition. 123See id. at 283–84, 285.

On appeal, the appellant argued for studying the appellee’s operational history because the appellee was located in Israel before filing a petition for chapter 15 recognition, but the Fifth Circuit disagreed. 124In re Ran, 607 F.3d at 1025. The court looked to § 1502, like the lower court had done, and when the court did not find a timeframe associated with COMI, the court decided that § 1502’s verb tense provided an answer. 125See id. (“[T]he grammatical tense in which [§ 1502] is written provides guidance.”). The court declared that Congress’s use of the present and present progressive tenses “requires courts to view the COMI determination . . . at the time the petition for recognition was filed.” 126Id.

The court believed that Congress would have created a lookback period for chapter 15 if it had wanted to include one, especially because it had created lookback periods in other parts of the Code. 127See id. (“If Congress had, in fact, intended bankruptcy courts to view the COMI determination through a lookback period or on a specific past date, it could have easily said so. This is particularly significant because Congress is clearly capable of creating lookback periods in the Bankruptcy Code.” (citing 11 U.S.C. § 522(b)(3)(A) (2006) (creating a lookback provision for property exemptions))). The Fifth Circuit’s argument is flawed in two ways, discussed later in this Comment. Therefore, a court fulfills chapter 15’s purpose by studying COMI on the recognition petition date. 128See id. (reiterating that “[c]hapter 15 was implemented by Congress in an attempt to harmonize transnational insolvency proceedings,” but failing to state why examining a debtor’s COMI when a chapter 15 petition for recognition is filed satisfies chapter 15’s purpose). Lastly, the court worried that if courts focus on lookback periods, then they would come to different, conflicting results. 129See id. (“[T]here would be an increased likelihood of conflicting COMI determinations, as courts may tend to attach greater importance to activities in their own countries, or may simply weigh the evidence differently.”). The Fifth Circuit affirmed the lower court’s ruling. 130See id. at 1028.

In In re Betcorp Ltd., a bankruptcy court in Nevada pondered two options for the correct time to determine COMI. 131See 400 B.R. 266, 286 (Bankr. D. Nev. 2009) (“[S]hould COMI be determined as of the time of the filing of the petition for recognition, or should the court look back and determine COMI in light of a debtor’s operational history?”). A party in the case argued for looking at COMI beyond the chapter 15 petition date, but the court called that argument flawed. 132See id. at 290. The court speculated that adopting a lookback period would disrupt the Model Law’s intent to create legal harmony 133See id. (“[A lookback period] would frustrate the goals of using COMI to ‘harmonize’ insolvency proceeding recognition transnationally, and it would make the determination of COMI imprecise and often incorrect.”). and then referenced an example of why courts cannot use a lookback period to determine COMI. 134See id. at 290–91 (“[I]n his past, Mr. Ran had substantial interests in Israel, but on the date of the petition for recognition, he had effectively no interests in that country.” (citing In re Ran, 390 B.R. 257, 260 (Bankr. S.D. Tex. 2008))). In that example, a court used a common sense argument that looking back may create conflicting COMI determinations, and the Betcorp court agreed. 135See id. at 291 (“[Giving] weight to the debtor’s interests over the course of its operational history may destroy the uniformity and harmonization that is the goal of employing the COMI inquiry.” (citing In re Ran, 390 B.R. 257, 300 (Bankr. S.D. Tex. 2008))).

The bankruptcy court also looked to English cases that interpreted the Regulation and found that they used a time close to the relevant proceeding. 136See id. at 292 (“[English cases] seem to select a time linked to the commencement or service of the relevant insolvency proceeding.” (citing Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974 [39], [55] (Eng.); Re Collins & Aikman Corp. Grp., [2005] EWHC (Ch) 1754 [39] (Eng.))). Additionally, those English cases found “that the identity of the country in which an individual debtor’s debts were incurred was not a relevant consideration in establishing where COMI might be.” 137Id. (citing Shierson, [2005] EWCA (Civ) at [39]; Official Receiver v. Eichler, [2007] BPIR (Ch D.) 1636 (Eng.)). Thus, the Betcorp court addressed COMI on the chapter 15 petition date. 138See id.

During In re British American Isle of Venice (BVI), Ltd., the Bankruptcy Court for the Southern District of Florida analyzed COMI by studying third-party perceptions of where a company could be located. 139See 441 B.R. 713 (Bankr. S.D. Fla. 2010). Some courts had equated COMI with principal place of business. 140See id. at 720 (“Several courts have likened COMI to the ‘principal place of business’ concept under United States law.” (citing In re British Am. Ins. Co., 425 B.R. 884, 908–09 (Bankr. S.D. Fla. 2010); In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 129 (Bankr. S.D.N.Y. 2007), aff’d, 389 B.R. 325 (S.D.N.Y. 2008))). Some even connected COMI analysis “to the ‘nerve center’ analysis described” by the Supreme Court. 141Id. (equating a “nerve center” with a corporation’s headquarters (citing Hertz Corp. v. Friend, 559 U.S. 77, 95 (2010); In re Fairfield Sentry Ltd., 440 B.R. 60 (Bankr. S.D.N.Y. 2010))). The court did not state explicitly when to determine COMI, but it considered the locations of the debtor’s headquarters and its managers. 142See id. (“The court first considers the location of the Debtor’s headquarters and the location of those who actually manage the Debtor.”). The court looked at the debtor’s assets on the chapter 15 petition date also. 143See id. at 721.

Importantly, the court observed third-party expectations and found that those third parties considered the foreign representative’s location to be the location of the debtor’s business, even the foreign representative remained in one location for an extended period and then relocated the debtor’s business activities. 144See id. at 722–23 (citing In re British Am. Ins. Co., 425 B.R. at 914; In re Fairfield Sentry, 440 B.R. 60). When third parties focus on the foreign representative’s location, courts have acknowledged that COMI can shift. 145See id. at 723 (citing In re British Am. Ins. Co., 425 B.R. at 914; In re Fairfield Sentry, 440 B.R. 60). The court held that its case did not involve an opportunistic shift or any biased distortion of COMI. 146See id. (citing In re Fairfield Sentry, 440 B.R. at 66). Therefore, the debtor’s COMI could be where third parties considered the foreign representative to be located, which was determined at the time of filing for chapter 15 recognition in the United States. 147See id. (citing In re Fairfield Sentry, 440 B.R. at 66).

If the debtor’s COMI is unclear, a court, such as the In re British American Insurance court, looks for alternate methods to determine COMI. 148See 425 B.R. at 909. There was evidence in that case to rebut § 1516(c)’s presumption that COMI is the debtor’s registered office or habitual residence, which caused the court to expand its analysis. 149See id. at 908.

Petitioners asked the court to determine COMI on the chapter 15 petition date; the opposing party asked the court to determine COMI when the petitioners were appointed in foreign proceedings or through a lookback period of the debtor’s operational history. 150See id. at 909. To help choose an option, the court consulted prior cases and gave particular attention to how they rejected using a lookback period because of possible conflicts among decisions from country to country that might undermine international uniformity. 151See id. at 909–10 (“[There was] concern for the possibility of conflicting COMI determinations in various countries arising from different analyses of a debtor’s historical activities”). The court also found support for its position in the text of chapter 15. 152See id. at 910 (“Chapter 15 itself provides guidance on the temporal focus of the COMI analysis.”).

The court used the present verb tense in § 1517(b)(1) as proof of Congressional intent to determine COMI on the chapter 15 petition date. 153See id. (“[Because a] chapter 15 case is commenced by the filing of a petition for recognition under section 1504[, t]he present, for purposes of a court making a determination under section 1517(b)(1), can be no earlier than the date that chapter 15 petition was filed.”). Additionally, a foreign representative has to notify the court “of ‘any substantial change’” to his appointment or to the foreign proceeding, which causes a court to account for any change in the location of the debtor’s COMI that may occur after a chapter 15 petition is filed but before recognition is granted. 154Id. Promoting international uniformity and consistency is a court’s primary goal and can be achieved by “[s]electing the latest possible date for the COMI analysis.” 155Id.

Outside of the United States, the Federal Court in Australia also studied its national implementation of UNCITRAL’s Model Law and noted that it needed to choose a date to determine COMI. 156See In re Australian Equity Investors [2012] FCA 1002 (5 Sept. 2012) (Austl.). The case’s main proceeding occurred in the United States, and the foreign representative sought recognition in Australia. 157See id. Ultimately, the Federal Court decided similarly to how U.S. had decided so far: COMI was determined at the time the court in Australia was called upon to make a decision, not by looking back to the commencement of the foreign proceeding. 158See id.

When the Second Circuit examined COMI in 2013, it declared that identifying the relevant time meant considering the Code, federal court holdings, and international sources. 159See Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 133 (2d Cir. 2013). The Code, however, does not define COMI. 160See id. Instead, the court, like prior courts, focused on the use of present tense throughout chapter 15’s COMI-related verbs. 161See id.

The Second Circuit drew authority from the Supreme Court, who said that Congress’s choice of verb tense can determine “a statute’s temporal reach.” 162Id. at 133–34 (citing Carr v. United States, 560 U.S. 438 (2010); Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) (relying on Congress’s use of present perfect tense in statutory construction)). During another case in the Second Circuit, the court had been influenced by the Code’s verb tense. 163See id. at 134 (“[The court was] guided by the tense used in a provision of the Bankruptcy Code allowing bankruptcy trustees to hire professionals . . . as long as the professionals ‘do not hold or represent an interest adverse to the estate.’” (quoting Bank Brussels Lambert v. Coan (In re AroChem Corp.), 176 F.3d 610, 623 (2d Cir. 1999))). To the court, § 1517’s use of present and present progressive tenses mattered to a relevant time frame analysis. 164See id. (citing 11 U.S.C. § 1517(b)(1) (2012)). In addition, the court distinguished that the Code does not compel COMI determination at the beginning of the foreign proceeding because that “proceeding ‘is pending’ only after it has been commenced.” 165Id. (“COMI determination based on the date of the initiation of the foreign proceeding is not compelled by the statute [because a] foreign proceeding ‘is pending’ only after it has been commenced.” (emphasis added) (quoting 11 U.S.C. § 1517(b)(1))). As a result, the Code favors using the chapter 15 petition date in COMI analysis. 166See id. (“Under the text of the statute, therefore, the filing date of the Chapter 15 petition should serve to anchor the COMI analysis.”).

The Morning Mist court was influenced by other federal courts analyzing COMI on the chapter 15 petition date. 167See id. (“Nearly every federal court to address this [temporal] question has determined that COMI should be considered as of the time the Chapter 15 petition is filed.”). The Second Circuit looked at other appellate courts first and found support in the Fifth Circuit Ran decision that rejected a lookback period. 168See id. (“Every operative verb is written in the present or present progressive tense. . . . Congress’s choice to use the present tense requires courts to view the COMI determination in the present, i.e. at the time the petition for recognition was filed. If Congress had, in fact, intended bankruptcy courts to view the COMI determination through a look-back period or on a specific past date, it could have easily said so.” (emphasis omitted) (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010))). Congress could put a lookback period in the Code, but it did not put one in chapter 15. 169See id. (referring to a lookback period in § 522(b)(3)(A) (citing In re Ran, 607 F.3d at 1025)). Furthermore, studying a range of time could muddle a discernible COMI. 170See id. (“[L]ooking at a company’s full operational history could make it more difficult to pinpoint a single COMI.”).

When the Morning Mist court looked beyond appellate courts, it found that most other courts used the chapter 15 petition date as well. 171See id. at 135 (“[Courts] throughout the country appear to have examined a debtor’s COMI as of the time of the Chapter 15 petition.” (citing In re Fairfield Sentry Ltd., No. 10 Civ. 7311 (GBD), 2011 U.S. Dist. LEXIS 105770, at *6 (S.D.N.Y. Sept. 16, 2011); In re British Am. Isle of Venice (BVI), Ltd., 441 B.R. 713, 720–21 (Bankr. S.D. Fla. 2010); In re British Am. Ins. Co., 425 B.R. 884, 909–10 (Bankr. S.D. Fla. 2010); In re Betcorp Ltd., 400 B.R. 266, 290–92 (Bankr. D. Nev. 2009))). But see In re Millennium Glob. Emerging Credit Master Fund Ltd., 474 B.R. 88, 92 (S.D.N.Y. 2012) (“COMI should be determined as of the date of the commencement of the foreign proceeding, rather than—as most of the courts that have looked at the issue have concluded—the date on which the Chapter 15 petition was filed.”). One court had looked to § 304 (chapter 15’s predecessor) for language supporting using “the time of the commencement of the foreign liquidation proceeding,” but the court disregarded this approach because BAPCPA repealed § 304. 172In re Fairfield Sentry, 714 F.3d at 136.

Following § 1508’s directive to promote international unity, the Morning Mist court studied how foreign jurisdictions analyze COMI. 173See id. The Regulation “employs the present tense,” as does chapter 15. 174Id. Additionally, the Regulation promotes regular and ascertainable interpretations of COMI. 175See id. The Second Circuit conveyed unease, however, that the link between COMI and a “place where the debtor conducts the administration of his interests on a regular basis” might invoke a broader time period. 176Id. (citing Council Regulation 1346/2000, supra note 20, at Preamble ¶ 13). Nevertheless, chapter 15 and the Regulation were not perfect analogs to the court because chapter 15 requires a recognition petition, whereas an EU proceeding applies in each Member State. 177See id. (“[A] proceeding in one EU member state is automatically recognized by all other EU member states.” (citing Council Regulation 1346/2000, supra note 20, at art. 16)). Furthermore,In In re Millennium Global, the bankruptcy court observed that “[t]he EU Regulation does not contemplate the commencement of a separate ancillary proceeding to seek recognition of a foreign insolvency case, as in the Model Law and chapter 15, as the members of the Union are automatically required to recognize foreign proceedings from the date of their opening.” But that conclusion does not persuade us that we should determine COMI under Chapter 15 based on the date of commencement of the foreign proceeding as the bankruptcy court held in that case; rather, it suggests that the EU Regulation may be a poor analog for interpreting Chapter 15.Id. at 136 n.9 (citing In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 74 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012)). The court conceded that the Regulation may refer to a broader COMI time period, but it rejected the Regulation’s influence when interpreting chapter 15. 178See id. at 136 (“Although the EU Regulation might refer to a broader time frame for considering a debtor’s COMI, [the Regulation] is not a fit for construing Chapter 15.”).

English courts chose times around the proceeding’s commencement, but the Second Circuit thought that the language relied upon was too ambiguous to be influential. 179See id. at 134 n.8 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1026 (5th Cir. 2010)). European courts look for a COMI that “is regular and ascertainable.” 180Id. at 136–37 (citing Case C-341/04, Eurofood IFSC Ltd., 2006 E.C.R. I-3813, ¶ 33; Stanford Int’l Bank Ltd., [2010] EWCA (Civ) 137, [54–56] (Eng.)). Those courts have expressed concern about COMI tampering, but a regular and ascertainable COMI is not moved easily. 181See id. at 137 (“A COMI that is regular and ascertainable is not easily subject to tactical removal.” (citing Eurofood, 2006 E.C.R. at ¶ 35)). Overall, the Second Circuit believed that international sources were not very useful and held that COMI should be analyzed on the chapter 15 petition date, except when there is evidence of bad faith manipulation. 182See id. (“[I]nternational sources are of limited use in resolving whether U.S. courts should determine COMI at the time of the Chapter 15 petition or in some other way.”).

In April 2014, the Bankruptcy Court for the District of Delaware emphasized the exception for possible COMI manipulation. 183See In re Ir. Bank Resolution Corp. (In Special Liquidation), No. 13-12159 (CSS), 2014 Bankr. LEXIS 1990 (Bankr. D. Del. 2014). The In re Irish Bank Resolution Corp. court stated that the Code’s plain language directs courts to study matters presently on the chapter 15 petition date, not historically to prior proceedings. 184See id. at *36 (“The plain language of the statute clearly indicates that the relevant time period to consider is the date of filing of the Chapter 15 petition, not the debtor’s ‘entire operational history.’” (citing In re Fairfield Sentry, 714 F.3d at 133)). Citing the Second Circuit, the court stressed chapter 15’s use of present tense. 185See id. (citing In re Fairfield Sentry, 714 F.3d at 134). Evidence of possible COMI manipulation, however, allows a court to observe the period starting from the chapter 15 petition date and going back to the foreign proceeding’s beginning, but no further. 186See id. (citing In re Fairfield Sentry, 714 F.3d at 133). Sometimes, COMI will be the same under either scenario. See, e.g., id. at *36–37.

In 2015 and 2016, courts did not discuss the timing issue in as much depth. In fact, the cases that mentioned it stated in one manner-of-fact sentence each that the chapter 15 petition date is the date courts should use. 187See In re Creative Fin. Ltd., 543 B.R. 498, 518–19 (Bankr. S.D.N.Y. 2016); In re OAS S.A., 533 B.R. 83, 100 (Bankr. S.D.N.Y. 2015) (citing In re Fairfield Sentry, 714 F.3d at 133).

2. COMI Determined Through Lookback Period

Despite decisions by other courts, the Bankruptcy Court for the Southern District of New York offered its own interpretation of when to determine COMI, and the court has reaffirmed its position more than once. 188See In re Kemsley, 489 B.R. 346 (Bankr. S.D.N.Y. 2013); In re Gerova Fin. Grp., Ltd., 482 B.R. 86 (Bankr. S.D.N.Y. 2012); In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012).

To start, determining COMI is a two-step process. 189See In re Millennium, 458 B.R. at 71. First, the court decides upon the appropriate date for COMI analysis, and second, the court uses factors to locate the debtor’s COMI. 190See id. Immediately, the court noted that relevant cases identify COMI on the chapter 15 petition date. 191See id. (“[T]he few cases on point (both business and individual) have determined the COMI of an entity . . . as of the date of the filing of the chapter 15 petition.” (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010) (individual); In re Fairfield Sentry, Ltd., 440 B.R. 60 (Bankr. S.D.N.Y. 2010) (business); In re British Am. Ins. Co., 425 B.R. 884, 909–11 (Bankr. S.D. Fla. 2010) (business); In re Betcorp Ltd., 400 B.R. 266, 290–92 (Bankr. D. Nev. 2009) (business))). Those cases rely on verb tense and belief that another date would endanger COMI interpretations. 192See id. (“[A]ny other date in the past would create a serious chance of conflict with the decisions of other courts.” (citing In re Ran, 607 F.3d at 1025, 1026)).

Nevertheless, the court opted to conflict with other courts on grounds that the plain meaning of the Code does not require using the chapter 15 petition date and that using the chapter 15 petition date is actually inconsistent with the Code. 193See id. at 72. Even though prior cases emphasize the use of present tense, they do not explain why present tense favors a chapter 15 date over the beginning of a foreign proceeding. 194See id. (“[T]he courts do not explain why they assume that the statute refers to the filing of the chapter 15 petition rather than the filing of the petition in the case for which recognition is sought.”). Chapter 15 proceedings are secondary to foreign proceedings, 195See id. (“[T]he U.S. case is ancillary or secondary to the foreign proceeding.” (citing 11 U.S.C. § 1504 (2006); In re Toft, 453 B.R. 186, 189 (Bankr. S.D.N.Y. 2011))). and its legislative history illustrates that point. 196Id. at 72 n.20 (“[T]here is a ‘United States policy in favor of a general rule that countries other than the home country of the debtor, where a . . . proceeding would be brought, should usually act through ancillary proceedings in aid of the . . . [foreign] proceedings. . . .” (quoting H.R. Rep. No. 109-31, pt. 1, 107–08 (2005), reprinted in 2005 U.S.C.C.A.N. 88 (commentary relating to 11 U.S.C. § 1504 (2006)))). In fact, the date when the foreign representative applies for recognition “is a matter of happenstance.” 197Id. at 72. For instance, in Millennium, three years separated the chapter 15 petition and the liquidation proceeding in Bermuda. 198See id. With such a gap between proceedings, the court determined COMI at the beginning of the foreign proceeding. 199See id. (“The substantive date for the determination of the COMI issue is at the date of the opening of the foreign proceeding for which recognition is sought.”).

The Millennium court also translated COMI into plain English and demonstrated how the term can be clear. 200See id. Generally, in the United States, COMI is associated with principal place of business. 201See id. A drafter of the Model Law and of chapter 15 explained that

Chapter 15 was drafted to follow the Model Law as closely as possible, with the idea of encouraging other countries to do the same. One example is use of the phrase “center of main interests,” which could have been replaced by “principal place of business” as a phrase more familiar to American judges and lawyers. The drafters of Chapter 15 believed, however, that such a crucial jurisdictional test should be uniform . . . . 202Id. (quoting Westbrook, Chapter, supra note 89, at 719–20); see also id. at 72 n.21 (citing Jay Lawrence Westbrook, Locating the Eye of the Financial Storm, 32 Brook. J. Int’l L. 1019, 1020 n.9 (2007) (“COMI is similar to standards like ‘principal place of business,’ ‘chief executive office,’ or ‘real seat’ that one finds in many statutes in the United States and elsewhere.”)); In re Tri-Continental Exch., 349 B.R. 627, 633 (Bankr. E.D. Cal. 2006) (quoting Westbrook, Chapter, supra note 89, at 719–20).

Courts have used COMI and principal place of business interchangeably. 203See In re Millennium, 458 B.R. at 72 (citing In re Betcorp Ltd., 400 B.R. 266, 287–88 (Bankr. D. Nev. 2009); In re Basis Yield Alpha Fund (Master), 381 B.R. 37, 48 (Bankr. S.D.N.Y. 2008)). If a court switches the terms, then it would locate a debtor’s business (or residence for individuals) on a date before liquidation. 204See id. (“[T]he date for determining an entity’s place of business refers to the business of the entity before it was placed into liquidation.”).

Once a court orders liquidation, the business stops, and there is no more principal place of business. 205See id. (“A debtor does not continue to have a principal place of business after liquidation is ordered and the business stops operating.”). Courts distinguish principal place of business in reorganization cases by noting that the new place relates to “the reorganizing entity, not the debtor.” 206Id. at 73. The Millennium court recognized both that a liquidating business no longer has a principal place and that reorganization proceedings are rare outside of the United States—illustrating why UNCITRAL would not have based the Model Law’s universal terms on uncommon proceedings. 207See id. at 73, 73 n.22 (“[T]he drafters of the Model Law would not have employed the term with a reorganization case in mind because reorganization is rare in most countries outside the United States.” (citing Terence C. Halliday, Legitimacy, Technology, and Leverage: The Building Blocks of Insolvency Architecture in the Decade Past and the Decade Ahead, 32 Brook. J. Int’l L. 1081, 1094 (2007); Christoph G. Paulus, Global Insolvency Law and the Role of Multinational Institutions, 32 Brook. J. Int’l L. 755 n.18 (2006–2007); U.N. Comm’n on Int’l Trade Law, UNCITRAL Legislative Guide on Insolvency Law, U.N. Pub. Sales No. E.05.V.10 (2005))).

The Millennium court also looked at the Code prior to BAPCPA and found a requirement for courts “to consider the ‘principal place of business’ or ‘principal assets’ of a debtor when determining whether to recognize a foreign proceeding.” 208Id. at 73. Section 101(23) of the Code defined a foreign proceeding as one “in a foreign country in which the debtor’s . . . principal place of business or principal assets were located at the commencement of the proceeding, but which is convened for the purpose of liquidation or debt adjustment . . . or reorganization.” 209Id. (citing 11 U.S.C. § 101(23) (1990) (amended by Pub. Law. No. 109-8 (2005))). That definition means that courts use a date from the commencement of the foreign proceeding. 210See id. (“[T]he determination as to ‘principal place of business’ [is] to be made as of ‘the commencement of the proceeding,’ i.e., the foreign proceeding.”). The Model Law contains a simpler definition, but there is no evidence that Congress meant to change court practices. 211See id. at 73, 73 n.23 (“The Model Law simplified and shortened the definition . . . , but there is no indication in chapter 15 or the legislative history that Congress intended to change the prior bankruptcy practice of looking to the date when foreign proceedings were first commenced.” (citing Mark Lightner, Determining the Center of Main Interests Under Chapter 15, 18 J. Bankr. L. & Prac. 5 Art. 2, n.76 (2009) (stating that there is no legislative history on the issue))).

The Regulation does not account for separate ancillary proceedings because they are unnecessary in the EU; Member States recognize foreign proceedings automatically. 212See id. at 74; see also id. at 73 n.25 (citing Case C-444/07, MG Probud Gdynia, sp. z o.o., 2010 E.C.R. I-417 (requiring recognition of a Polish insolvency proceeding in Germany)). The insolvency proceeding’s commencement date is what the Regulation’s drafters had to consider for COMI. 213See id. at 74. The Millennium court acknowledged that some English cases use times around the commencement of insolvency proceedings, but in subsequent cases, English courts have rejected determining COMI at times after a business fails. 214See id. at 74 n.26 (citing Stanford Int’l Bank Ltd., [2010] EWCA (Civ) 137, [54], [56(4)] (Eng.); Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974, [38], [55], [71] (Eng.); Lightner, supra note 211 (recognizing that the EU Regulation requires a COMI determination as of the date of the opening of insolvency proceedings)).

Next, the court addressed an argument used in prior decisions: Establishing a date before the chapter 15 filing “would be bad policy” for COMI determination. 215Id. at 74–75 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010); In re Betcorp, 400 B.R. at 291–92). Instead of creating a vague inquiry, using an insolvency proceeding’s commencement date actually falls within the plain meaning of the Code. 216See id. at 75. The court demonstrated that whereas chapter 15 had been used in the United States to deny recognition, a New Zealand court had used statutory language to recognize an English proceeding. 217See id. at 75 n.27 (citing Williams v Simpson HC Hamilton CIV 2010-419-1174, 12 Oct. 2010 (N.Z.)). The Millennium court statedOtherwise, the result might have been to prevent an English estate administrator from any relief in New Zealand and possibly to allow the debtor, who had apparently moved from England to New Zealand, to retain some or all of the millions of dollars in gold that was found buried in his basement.Id. (citing Williams CIV 2010-419-1174).

COMI determination should not be used to bar foreign representatives because that would contradict chapter 15’s purpose: cooperation. 218See id. at 75 n.28 (citing 11 U.S.C. § 1501(a)(1) (2006); In re Atlas Shipping A/S, 404 B.R. 726, 738 (Bankr. S.D.N.Y. 2009)). In fact, using a chapter 15 petition date could lead to forum shopping because it recognizes a change of residence since the original proceeding began. 219See id. at 75. The safest, uniform, and most importantly, correct, date for COMI is the beginning of a foreign insolvency proceeding. 220See id. at 76.

Slightly more than a year after Millennium, the Bankruptcy Court for the Southern District of New York discussed when to determine COMI again. 221See In re Gerova Fin. Grp., Ltd., 482 B.R. 86 (Bankr. S.D.N.Y. 2012). The court affirmed determining COMI at the beginning of a foreign proceeding, noting that since Millennium, UNCITRAL had endorsed determining COMI at the commencement of a foreign proceeding and was working on an amendment to the Model Law’s enactment guide to incorporate that date. 222See id. at 92 (citing Rep. on Working Group V’s 41st Sess., supra note 28, at ¶ 60 (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)). The Gerova court held that even if it analyzed COMI on the chapter 15 petition date, its conclusion would be the same. See id. at 93.

In early 2013, the same bankruptcy court addressed proper COMI timing for a third time. 223See In re Kemsley, 489 B.R. 346 (Bankr. S.D.N.Y. 2013). The court stressed that determining the appropriate date for COMI was “not just a theoretical concern” because two available options would yield different results. 224Id. at 353. The court agreed with its own rulings to use a date from the beginning of the foreign proceeding. 225See id. at 354. An “opportunity for cross-border cooperation first came into being” when a petition was filed to commence proceedings in the United Kingdom. 226Id. That date was certain and easy to verify. 227See id. The chapter 15 petition date, however, was not as fixed. 228See id. (“[The chapter 15 date] can vary greatly depending on circumstances and the diligence of the foreign representative.”). With that understanding, a court determines COMI on a specific date, not a potential date. 229See id. at 356 (“Life is fluid, but COMI is a concept that is determined as of a fixed date . . . based on the circumstances that then existed.”).

Additionally, the Kemsley court studied COMI decisions in other jurisdictions, especially the Fifth Circuit’s Ran decision. 230See id. at 359 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010)). The court harped that Ran’s focus on the present tense “places too much emphasis on an otherwise neutral verb tense.” 231Id. (citing In re Ran, 607 F.3d at 1025). Section 1502(4) does not specify a date to analyze COMI and can be interpreted legitimately as the commencement date of a foreign proceeding. 232See id. Furthermore, the court declared that the Fifth Circuit’s analysis may support studying COMI once a chapter 15 petition is filed, but that same analysis does not instruct what time to use. 233See id. The Kemsley court attached the debtor’s COMI to the start of the foreign insolvency proceeding. 234See id. at 359, 360.

During 2014, the Federal Court in Australia examined to its prior analysis of COMI timing and changed its opinion. 235See In re Edelsten Kapila [2014] FCA 1112 (10 Oct. 2014) (Austl.). Like in its 2012 case, the court had a debtor with a main proceeding in the United States and a foreign representative who was seeking recognition in Australia. The court considered three dates on which to determine COMI: the date of application for recognition in Australia, the foreign proceeding’s commencement date, and the date the court considered the application for recognition. 236See id. Of those choices, the court decided to use the foreign proceeding commencement date. 237See id. The court believed that the foreign commencement date was advantageous and that the other options would lead to various outcomes in different nations, which would not meet the goals of cooperation and promoting greater legal certainty in cross-border insolvency law. 238See id.

3. Why This Comment Suggests Determining COMI Through a Lookback Period

This Comment cites four reasons to use a lookback period when deciding whether to analyze COMI on the chapter 15 petition date or the foreign proceeding date.

First, applying textualism to chapter 15 reveals that the proper date to determine COMI is the foreign proceeding date. As Millennium demonstrates, chapter 15’s plain meaning does not require using the chapter 15 petition date. 239See 458 B.R. 63, 72 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012). Courts begin with the plain statutory meaning because a “common theme in the Supreme Court’s bankruptcy jurisprudence . . . is that courts must apply the plain meaning of the Code unless its literal application would produce a result demonstrably at odds with” Congressional intent. 240Chase Manhattan Mortg. Corp. v. Shapiro (In re Lee), 530 F.3d 458, 470 (6th Cir. 2008) (citing Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”); United States v. Ron Pair Enters., 489 U.S. 235 (1989) (“[W]here, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.”)). The plain meaning analysis has been applied by the Supreme Court in at least eleven additional cases since 1991. See In re Lee, 530 F.3d at 470 n.10 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007); Till v. SCS Credit Corp., 541 U.S. 465, 486 (2004) (Thomas, J., concurring); Lamie v. United States Tr., 540 U.S. 526, 534 (2004); FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 304 (2003); Rake v. Wade, 508 U.S. 464, 473 (1993); Patterson v. Shumate, 504 U.S. 753, 757–58 (1992); Taylor v. Freeland & Kronz, 503 U.S. 638, 642–43 (1992); Union Bank v. Wolas, 502 U.S. 151, 158 (1991); Toibb v. Radloff, 501 U.S. 157, 160 (1991)); see also Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011) (looking to dictionary definitions to obtain a statute’s ordinary meaning (citing Hamilton v. Lanning, 560 U.S. 505 (2010))); Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 252 (2010) (declining to view a statute in a way contrary to its plain meaning). The plain meaning theme has been reiterated by courts numerous times. See, e.g., Ford Motor Co. v. United States, 768 F.3d 580, 587 (6th Cir. 2014) (explaining that a court looks to the statute’s plain language first (citing Nat’l Air Traffic Controllers Ass’n v. Sec’y of the DOT, 654 F.3d 654, 657 (6th Cir. 2011); Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998))); Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 250 (2d Cir. 2013) (“A properly limited contextual analysis of statutory language is encompassed within the ambit of a textual analysis.” (citing In re Application of N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 406 (2d Cir. 2009) (“[W]e examine the text of the statute itself, interpreting provisions in light of their ordinary meaning and their contextual setting.”); United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (“In determining whether statutory language is ambiguous, we ‘reference the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’”))); Kulakowski v. Walton (In re Kulakowski), 735 F.3d 1296, 1300 (11th Cir. 2013) (“In analyzing the Bankruptcy Code, we begin with the text of the relevant provision . . . and confine our analysis to the plain language of the statute.” (citing United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012))); Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 136 (2d Cir. 2013) (“[T]he statutory text controls, first and ultimately . . . .”); Ad Hoc Grp. of Vitro Noteholders v. Vitro SAB De CV (In re Vitro SAB De CV), 701 F.3d 1031, 1047 (5th Cir. 2012) (“[Courts] interpret statutes according to their plain meaning.” (citing Gaddis v. United States, 381 F.3d 444, 472 (5th Cir. 2004))); In re Ran, 607 F.3d at 1025 (“In the bankruptcy context, the analysis must end with the text if the language is clear and does not lead to an absurd result.” (citing Ron Pair Enters., 489 U.S. at 238)); Lavie v. Ran, 406 B.R. 277, 281 (S.D. Tex. 2009) (“[T]he ‘plain meaning’ of words should be utilized when interpreting an ambiguous statute or when terms are not otherwise defined.” (citing Mead Corp. v. Tilley, 490 U.S. 714, 715 (1989); Bankamerica Corp. v. United States, 462 U.S. 122, 122–23 (1983))), aff’d sub nom. In re Ran, 607 F.3d 1017; In re Octaviar Admin. Pty Ltd., 511 B.R. 361, 373 (Bankr. S.D.N.Y. 2014) (“[T]he Court must abide by the plain meaning of the words in the statute.” (citing In re Barnet, 737 F.3d 238)). Section 1502(4) discusses a “proceeding pending in the country where the debtor has” a COMI, and there is no reason to assume that the present verb tense refers to the chapter 15 petition date instead of the date of the foreign proceeding. 24111 U.S.C. § 1502(4) (2012); see also In re Millennium, 458 B.R. at 72 (“[T]he courts do not explain why they assume that the statute refers to the filing of the chapter 15 petition rather than the filing of the petition in the case for which recognition is sought”). Courts may interpret § 1502(4) to mean the date of the foreign proceeding because the section is silent about when to determine COMI. 242See In re Kemsley, 489 B.R. at 359 (“The section is silent regarding the ‘as of’ date for analyzing COMI and can be properly read to mean the country where a debtor has his, her or its COMI as of the date of opening of the foreign proceeding. The textual analysis adopted by the Fifth Circuit suggests that the language supports testing for COMI when the chapter 15 petition is filed but does not provide meaningful temporal guidance for using that date.”).

COMI should not be used as a bar against recognition, which is a distinct possibility when courts use the chapter 15 petition date. 243See In re Millennium, 458 B.R. at 83 (“The COMI requirement should not be applied in [such] a manner that would effectively establish a presumption against recognition of cases . . . .”). Plus, using the chapter 15 date is inconsistent with a textual reading of the Code because that date contradicts the chapter’s purpose (and the Model Law’s purpose for that matter). 244See id. at 72. Chapter 15’s purpose, stated in § 1501 and by various courts, is to promote cooperation between United States courts and foreign courts relating to cross-border insolvency cases. 245See 11 U.S.C. § 1501; see also In re Barnet, 737 F.3d at 250–51 (citing 11 U.S.C. § 1501(a)); In re Ran, 607 F.3d at 1020–21 (“The statutory intent to conform American law with international law is explicit in the text of Section 1501(a), and is also expressed in Section 1508, which states that ‘[i]n interpreting this chapter, the court shall consider its international origin, and the need to promote an application of similar statutes adopted by foreign jurisdictions.’” (citing 11 U.S.C. § 1508 (2006); H.R. Rep. No. 109-31, pt. 1, at 105 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 169 (“[Chapter 15] incorporates the Model Law on Cross-Border Insolvency to encourage cooperation between the United States and foreign countries with respect to transnational insolvency cases . . . .”); 8 Collier on Bankruptcy ¶ 1501.01 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev. 2008) (explaining the basis for Chapter 15))); Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 322 (5th Cir. 2010) (“The Model Law was ‘expressly designed to be integrated into local insolvency law’ and Chapter 15 closely hewed to the text of the enactment. ‘Any departures from the actual text of the Model Law . . . were as narrow and limited as possible.’ All this being part of an effort by the United States to harmonize international bankruptcy proceedings for the benefit of American businesses operating abroad. As directed by Congress, we mind this background as we discern the Chapter’s reach.” (citing Lief M. Clark, Ancillary and Other Cross-Border Insolvency Cases Under Chapter 15 of the Bankruptcy Code: A Collier Monograph § 2[4] (2008); Westbrook, Chapter, supra note 89, at 720)); Lavie, 406 B.R. at 281 (“It is axiomatic that statutes should not be construed in a way that defeats the statutory intent.” (citing United States v. Braverman, 373 U.S. 405, 408 (1963))); In re Betcorp Ltd., 400 B.R. 266, 276 (Bankr. D. Nev. 2009) (“The statutory intent to meld American law into international law is explicit . . . .” (citations omitted)). Therefore, courts should regard the chapter 15 petition date as “a matter of happenstance” because a chapter 15 case in the United States is secondary to a foreign proceeding. 246In re Millennium, 458 B.R. at 72 (citing 11 U.S.C. § 1504 (2006); In re Toft, 453 B.R. 186, 189 (Bankr. S.D.N.Y. 2011)); see also id. at 72 n.20 (citing H.R. Rep. No. 109-31, at pt. 1, 107–08 (“[In] the chapter 15 legislative history, . . . there is a ‘United States policy in favor of a general rule that countries other than the home country of the debtor, where a . . . proceeding would be brought, should usually act through ancillary proceedings in aid of the . . . [foreign] proceedings . . . .’”)).

Second, when a court translates the debatably ambiguous COMI, it uncovers connections to a principal place of business. 247See id. at 72. Courts have held that “‘[a] statute is ambiguous if it is susceptible to more than one reasonable interpretation or more than one accepted meaning,’” which applies to COMI because courts have determined two different dates on which to apply the concept. 248In re Condor, 601 F.3d at 321 n.7 (emphasis added) (quoting United States v. Valle, 538 F.3d 341, 345 (5th Cir. 2008)). Section 1516(c) creates a presumption that a debtor’s principal place of business is its COMI. 249See In re Tri-Continental Exch., 349 B.R. 627, 634 (Bankr. E.D. Cal. 2006) (“The statutory presumption created by § 1516(c), on close examination, confirms that an entity’s ‘principal place of business’ in United States jurisprudence is that entity’s ‘center of main interests’ for purposes of § 1502(4).”). Other courts have equated COMI and principal place of business as well. See In re Betcorp, 400 B.R. at 287–88; In re Basis Yield Alpha Fund (Master), 381 B.R. 37, 48 (Bankr. S.D.N.Y. 2008). Determining COMI as of the foreign proceeding, therefore, is more favorable than determining it at the chapter 15 petition date because there is no principal place of business once a foreign court has ordered liquidation. 250See In re Millennium, 458 B.R. at 72 (“A debtor does not continue to have a principal place of business after liquidation is ordered and the business stops operating.”).

Under § 101(23) before BAPCPA, a foreign proceeding existed in a country where the debtor had a principal place of business at the beginning of the insolvency proceeding. 251See id. at 73 (“[A foreign proceeding is] a proceeding . . . in a foreign country in which the debtor’s . . . principal place of business or principal assets were located at the commencement of the proceeding . . . .” (quoting 11 U.S.C. § 101(23) (1990), amended by Pub. L. No. 109-8 (2005))). Supreme Court precedent states that when Congress amends the Code, the Court does not depart from major interpretations of the Code, unless Congress indicates clearly that such a departure is intended. 252See id. at 83 (citing Dewsnup v. Timm, 502 U.S. 410, 419 (1992) (“When Congress amends the bankruptcy laws, it does not write ‘on a clean slate’ . . . . This Court has been reluctant to accept arguments that would interpret the Code . . . to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history.”); Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 562 (1990) (“We will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.”)). Neither chapter 15 nor its legislative history, however, contains an indication that Congress wanted to change bankruptcy practices that affect COMI. 253Id. at 73 n.23 (“[T]here is no indication in chapter 15 or the legislative history that Congress intended to change the prior bankruptcy practice of looking to the date on which foreign proceedings were first commenced.” (citing Lightner, supra note 211 (stating that there is no legislative history on the issue))). Furthermore, UNCITRAL Working Group V (Insolvency Law) has proposed an amendment to the Model Law that adopts Millennium’s determination that COMI should be analyzed through a lookback period. 254See In re Gerova Fin. Grp., Ltd., 482 B.R. 86, 92 (Bankr. S.D.N.Y. 2012) (citing Rep. on Working Group V’s 41st Sess., supra note 28, at ¶ 60 (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)); see also id. at 92 n.10 (citing U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Interpretation and Application of Selected Concepts of the UNICITRAL Model Law on Cross-Border Insolvency Relating to Centre of Main Interests (COMI), 42d Sess., Nov. 26–30, 2012, ¶ 128C, U.N. Doc. A/CN.9/WG.V/WP.107 (Sept. 13, 2012) (stating that use of the commencement date of the foreign proceeding is consistent with the evidence required to apply for recognition and the “relevance accorded the decision commencing the foreign proceeding and appointing the foreign representative”)).

Third, determining COMI on the chapter 15 date allows a foreign representative to shop forums. 255See In re Millennium, 458 B.R. at 75. The foreign proceeding commencement date is certain and verifiable. 256See In re Kemsley, 489 B.R. 346, 354 (Bankr. S.D.N.Y. 2013). The chapter 15 petition date, however, is not fixed and may vary among cases. 257See id. One of the reasons the date can fluctuate is because it recognizes “a change of residence between the date of opening proceedings in the foreign nation and the chapter 15 petition date.” 258In re Millennium, 458 B.R. at 75. When the Millennium court addressed the forum shopping issue, it noted that three years had passed since the foreign proceeding before a chapter 15 petition for recognition was filed in the United States. 259See id. at 72. Courts should determine COMI by looking back to the commencement date of the foreign proceeding to avoid a potential forum shopping strategy that would subvert the purpose of chapter 15. 260See 11 U.S.C. § 1501 (2012).

Fourth, § 1508 of the Code directs courts to consider chapter 15’s international origin and a need for cross-border uniformity. 261See id. § 1508. The only date that courts throughout the EU may consider is the commencement date in a foreign proceeding. 262See In re Millennium, 458 B.R. at 74 (“The date of the opening of initial insolvency proceeding is the only date that the original drafters of the term [COMI] for the EU Regulation could have contemplated.”); see also Lavie v. Ran (In re Ran), 607 F.3d 1017, 1026 (5th Cir. 2010) (“This is consistent with English cases interpreting the European Union Regulation, which seem to select a time linked to the commencement or service of the relevant insolvency proceeding.” (citing Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974, [39], [55] (Eng.); Re Collins & Aikman Corp. Grp., [2005] EWHC (Ch) 1754, [39] (Eng.))). That date is the only one they can consider because the Regulation, binding on all Member States, “does not contemplate the commencement of a separate ancillary proceeding to seek recognition of a foreign insolvency case, as in the Model Law and chapter 15.” 263In re Millennium, 458 B.R. at 74. Instead, EU Member States recognize each other’s proceedings automatically. 264See id. If United States courts intend to follow § 1508’s instruction to consult chapter 15’s international foundation, then they should hold that the correct time to determine COMI is on the foreign proceeding’s commencement date.

Conclusion

Chapter 15 has been a great addition to the Code, providing opportunities for many distressed foreign debtors. With time, though, two strands of decisions among courts have made relief more difficult to obtain for foreign representatives and debtors. Requiring courts to apply § 109(a) to chapter 15 is not only incorrect, but it is also alarming because it provides courts with an easy way to bar recognition of foreign proceedings instead of promoting international cross-border insolvency cooperation called for in § 1501(a). 265See 11 U.S.C. § 1501(a).

Second, determining COMI at the chapter 15 petition date is both inaccurate and deceptive. A straightforward reading of chapter 15 uncovers enough ambiguity that courts could decide to determine COMI at either the chapter 15 petition date or through a lookback period, but since chapter 15 became part of the Code, international sources have indicated clearly (through cases and a proposed Model Law amendment) that the start of the foreign proceeding is when to determine COMI. Using a chapter 15 petition date creates a possibility for foreign representatives and debtors to swindle the American legal system by establishing a genuine COMI in the United States after a foreign proceeding has concluded. Analyzing COMI through a lookback period avoids such an illusory shift in a party’s COMI.

Ultimately, chapter 15 is valuable to foreign representatives and debtors and will continue to grow. 266See U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Cross-Border Recognition and Enforcement of Insolvency-Related Judgements, 48th Sess., Dec. 14–18, 2015, U.N. Doc. A/CN.9/WG.V/WP.135 (Oct. 2, 2015) (discussing language for a new model law regarding recognizing and enforcing foreign insolvency judgments); Parliament & Council Regulation 2015/848 of 20 May 2015 on Insolvency Proceedings (Recast), 2015 O.J. (L 141) 19 (EU) (implementing years of insolvency amendments and applying to courts on June 26, 2017). Before it grows too much, though, courts should halt current trends and declare that § 109(a) has no applicability to chapter 15 and that COMI is determined through a lookback period to the foreign proceeding’s commencement date.

Footnotes

1See Chapter 15 Filings (2005–Present), Am. Bankr. Inst., http://abi-org.s3.amazonaws.com/Newsroom/Bankruptcy_Statistics/Chapter15Filings-Thru2Q2014.pdf (last modified Jan. 26, 2015); see also Van C. Durrer II, David M. Turetsky & Glenn S. Walter, Expanding Use of Chapter 15 Tests Its Protections and Limits, Financier Worldwide Mag., Jan. 2013, at 1.

2At times, this Comment uses “debtor” and “foreign representative” interchangeably. They may refer to the same person, but not always. In the context of chapter 15 cases, there may be a debtor who has been involved in a foreign proceeding. Out of that proceeding, a court appoints a foreign representative (sometimes the debtor himself) to file for chapter 15 recognition of the foreign proceeding in the United States.

3See In re Tien Chiang, 437 B.R. 397, 402 (Bankr. C.D. Cal. 2010) (“The recognition of a foreign proceeding . . . brings certain statutory benefits to the debtor. Section 1520(a) specifies that, upon recognition: (a) the automatic stay provisions of §§ 361 and 362 apply with respect to a debtor’s U.S. property within the territorial jurisdiction of the United States; (b) §§ 363, 549 and 552 apply to a transfer of interest of the debtor in U.S. property; (c) the foreign representative may operate the debtor’s business in the United States and may exercise the powers of a trustee pursuant to §§ 363 (use, sale or lease of property) and 552 (postpetition effect of security interests); and (d) § 552 applies to U.S. property of the debtor.”). Legislative history indicates that § 542, not § 552, applies when chapter 15 recognition has been granted. See id. at 402 n.13 (citing H.R. Rep. No. 109-31, pt. 1, at 115 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 177).

4Id. at 402–03.

5See In re Rede Energia S.A., 515 B.R. 69, 89 (Bankr. S.D.N.Y. 2014) (“If a foreign case is recognized . . . , certain relief automatically goes into effect, pursuant to 11 U.S.C. § 1520.”).

6See id. at 89 (“[U]nder section 1521, a bankruptcy court may grant ‘any appropriate relief’ in order to ‘effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors.’”).

7See id. at 89–90.

8See id. at 90 (citing 11 U.S.C. § 1507(a)–(b) (2012); In re Toft, 453 B.R. 186, 190 (Bankr. S.D.N.Y. 2011); H.R. Rep. No. 109-31).

9See 11 U.S.C. § 109; e.g., Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013); Transcript of Hearing, In re Bemarmara Consulting a.s., 13-13037-KG (Bankr. D. Del. Dec. 17, 2013) (LexisNexis, Federal Bankruptcy Law) [hereinafter Transcript of Bemarmara Hearing].

10See 11 U.S.C. §§ 1502(4), 1516(c).

11See, e.g., Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010).

12See, e.g., In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 72 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012).

13Case C-1/04, Susanne Staubitz-Schreiber, 2006 E.C.R. I-701, I-704, Opinion of AG Ruiz-Jarabo Colomer.

14See id. at I-704–05.

15See id. at I-705.

16See Lavie v. Ran, 406 B.R. 277, 281 n.2 (S.D. Tex. 2009) (“[T]he drafters of the Model Law consulted the Convention’s terminology.”), aff’d sub nom. In re Ran, 607 F.3d 1017.

17See Staubitz-Schreiber, 2006 E.C.R. at I-705.

18See Case C-341/04, Eurofood IFSC Ltd., 2006 E.C.R. I-3813, I-3817, Opinion of AG Jacobs.

19See Staubitz-Schreiber, 2006 E.C.R. at I-705–06.

20See Eurofood, 2006 E.C.R. at I-3818; see also Initiative of the Federal Republic of Germany and the Republic of Finland with a View to the Adoption of a Council Regulation on Insolvency Proceedings, Submitted to the Council on 26 May 1999, 1999 O.J. (C 221) 6, 8. See generally Council Regulation 1346/2000 of 29 May 2000 on Insolvency Proceedings, 2000 O.J. (L 160) 1 (EU).

21See Staubitz-Schreiber, 2006 E.C.R. at I-706 (“[T]he impulse for that transformation flourished in the fertile ground of Articles 61(c) EC . . . and 67(1) EC, . . . which were ‘communitarised’ under the Treaty of Amsterdam, thereby constituting one of the Treaty’s main achievements.”); Insolvency proceedings, EUR-Lex, http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV:l33110 (last updated Sept. 2, 2014) (“This law lays down common rules for cross-border insolvency proceedings in European Union (EU) countries, except Denmark.”); see also Eurofood, 2006 E.C.R. at I-3818 (“The Regulation was adopted on the basis of Articles 61(c) EC and 67(1) EC, on the initiative of Germany and Finland.”). See generally Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1.

22See Staubitz-Schreiber, 2006 E.C.R. at I-706; Eurofood, 2006 E.C.R. at I-3817 (“The text of the Regulation is . . . identical in all material respects to the text of the Convention.”). Even before the Regulation was adopted, EU Member States had embraced a “process of mutual recognition and enforcement of judgments in bankruptcy proceedings by means of bilateral treaties.” Staubitz-Schreiber, 2006 E.C.R. at I-705. Those treaties are listed in Regulation Article 44(1) and are replaced by the Regulation. See id.

23See In re Tien Chiang, 437 B.R. 397, 401 (Bankr. C.D. Cal. 2010) (stating that the Regulation and the Model Law have common concepts).

24See G.A. Res. 52/158 (Jan. 30, 1998).

25See G.A. Res. 68/107 (Dec. 18, 2013); U.N. Comm’n on Int’l Trade Law, UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, U.N. Sales No. E.14.V.2 (2014).

26Lavie v. Ran, 406 B.R. 277, 281 n.2 (S.D. Tex. 2009) (citing U.N. Comm’n on Int’l Trade Law, Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, 30th Sess., May 12–30, 1997, ¶ 75, U.N. Doc. A/CN.9/442 (Dec. 19, 1997) (noting definition inspiration from the Convention)), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010). Additionally,the Convention is better understood by consulting the Virgos-Schmit Report. Although the language of the Virgos-Schmit Report and Convention may not be identical to that in the Bankruptcy Code, the corresponding sections of both the Virgos-Schmit Report and the Convention [or Regulation] give insight into the origin of the terms used.Id. (citing H.R. Rep. No. 109-31, pt. 1, at 109 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 172). Compare Council Regulation 1346/2000, supra note 20, and Virgós-Schmit Report on the Convention on Insolvency Proceedings, at 1, Council Document 6500/96 (May 3, 1996), with UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25, and 11 U.S.C. §§ 1501–1532 (2012).

27See Status UNCITRAL Model Law on Cross-Border Insolvency (1997), UNCITRAL, http://www.uncitral.org/uncitral/en/uncitral_texts/insolvency/1997Model_status.html (last visited May 2, 2016) (listing the nations alphabetically as Australia (2008), Benin (2015), Burkina Faso (2015), Cameroon (2015), Canada (2005), Central African Republic (2015), Chad (2015), Chile (2013), Colombia (2006), Comoros (2015), Congo (2015), Côte d’Ivoire (2015), Democratic Republic of the Congo (2015), Equatorial Guinea (2015), Gabon (2015), Greece (2010), Guinea (2015), Guinea-Bissau (2015), Japan (2000), Kenya (2015), Malawi (2015), Mali (2015), Mauritius (2009), Mexico (2000), Montenegro (2002), New Zealand (2006), Niger (2015), Philippines (2010), Poland (2003), Republic of Korea (2006), Romania (2002), Senegal (2015), Serbia (2004), Seychelles (2013), Slovenia (2007), South Africa (2000), Togo (2015), Uganda (2011), United Kingdom of Great Britain and Northern Ireland: British Virgin Islands (2003), Gibraltar (2014), and Great Britain (2006), United States of America (2005), Vanuatu (2013)).

28See In re Gerova Fin. Grp., Ltd., 482 B.R. 86, 92 (Bankr. S.D.N.Y. 2012) (citing U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Rep. on its 41st Sess., Apr. 30–May 4, 2012, ¶ 60, U.N. Doc. A/CN.9/742 (May 8, 2012) [hereinafter Rep. on Working Group V’s 41st Sess.] (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)).

29See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 801, 119 Stat. 23, 134–45.

30Compare id., with UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25.

31See In re Ran, 607 F.3d at 1020 (“[BAPCPA] replaced former Section 304 of the Bankruptcy Code . . . .”).

32See In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 69 n.6 (Bankr. S.D.N.Y. 2011) (“Chapter 15 was adopted, effective October 17, 2005, replacing § 304 of the Bankruptcy Code, which was repealed.”).

33See 11 U.S.C. § 304 (2000); 11 U.S.C. §§ 1501–1532 (2012).

34S. Rep. No. 95-989, at 35 (1978) (“Principles of international comity and respect for the judgments and laws of other nations suggests that the court be permitted to make the appropriate orders under all of the circumstances of each case, rather than being provided with inflexible rules.”).

3511 U.S.C. § 1501.

36See id.

37See id. (“This chapter applies where – (1) assistance is sought in the United States by a foreign court or a foreign representative in connection with a foreign proceeding; (2) assistance is sought in a foreign country in connection with a case under this title; (3) a foreign proceeding and a case under this title with respect to the same debtor are pending concurrently; or (4) creditors or other interested persons in a foreign country have an interest in requesting the commencement of, or participating in, a case or proceeding under this title.”).

38See id. The contents of § 109(b) and (e) are not relevant to this Comment.

3911 U.S.C. § 109.

40See 11 U.S.C. § 1515.

41Id.

42See id.

43See 11 U.S.C. § 1517. Section 1517 states, however, that an order granting recognition is subject to § 1506, which lets courts refuse to act in a way manifestly contrary to United States public policies. 11 U.S.C. §§ 1506, 1517.

44See 11 U.S.C. § 1508.

45Id.

46See 11 U.S.C. § 109.

47See Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 247 (2d Cir. 2013); see also In re Octaviar Admin. Pty Ltd., 511 B.R. 361, 367 (Bankr. S.D.N.Y. 2014) (“[T]he Second Circuit issued its decision, holding for the first time that a debtor that is the subject of a foreign proceeding must meet the requirements of section 109(a) of the Bankruptcy Code before a bankruptcy court may grant recognition of the foreign proceeding.”).

48See 737 F.3d at 246.

49See id. at 247 (“Section 103(a) of “Title 11 provides that, other than for an exception not relevant here, Chapter 1 ‘of this title . . . appl[ies] in a case under chapter 15.’”).

50See id. (“Section 109 . . . is within Chapter 1 of Title 11 and so, by the plain terms of the statute, it applies ‘in a case under chapter 15.’”).

51Id.

52See id. (“The debtor . . . must meet the requirements of Section 109(a) before a bankruptcy court may grant recognition of the foreign proceeding.”).

53Id. at 251 (citing UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25).

54See id. (“[T]he Model Law also states that ‘a State may modify or leave out some of its provisions.’” (quoting UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation, supra note 25, at Part 2 ¶ 12)).

55See id. (“[T]he omission of Section 109(a), or its equivalent, from the Model Law does not suffice to outweigh the express language Congress used in adopting Sections 109(a) and 103(a).”).

56Id. (“Congress . . . may have intended to limit the relief provided by Chapter 15 because it knew that additional relief was already available outside of Chapter 15.”).

57See id.

58See 511 B.R. 361, 364 (Bankr. S.D.N.Y. 2014) (“[U]nder a plain reading of the relevant statutory provisions, a petition in a chapter 15 case is required to meet the eligibility requirements set forth in section 109(a) of the Bankruptcy Code.”).

59See id. at 367.

60See id. at 369.

61See id.

62See id. at 375 (“The Court concludes that because Octaviar’s claims and causes of action against Drawbridge constitute property located in the United States, the Foreign Representatives satisfy the eligibility requirements of section 109(a) of the Bankruptcy Code. . . . Drawbridge does not dispute that the funds in the Client Trust Account constitute property in the United States pursuant to section 109(a) of the Bankruptcy Code. . . . Notably, Drawbridge concedes that prepetition retainers and transfers of property can serve as a basis for section 109(a) compliance and do not, in and of themselves, constitute grounds for a finding of bad faith.”).

63See 520 B.R. 399, 411 (Bankr. S.D.N.Y. 2014) (“This [§ 109(a)] requirement applies to foreign debtors seeking relief under chapter 15.” (citing Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 247 (2d Cir. 2013))).

64See id. at 412.

65Id. (citing In re Octaviar, 511 B.R. at 372–73; In re Yukos Oil Co., 321 B.R. 396, 407 (Bankr. S.D. Tex. 2005)).

66See id. at 413 (citing In re Octaviar, 511 B.R. at 373).

67See 540 B.R. 80 (Bankr. S.D.N.Y. 2015).

68See id. at 81–82 (citing Daniel M. Glosband & Jay Lawrence Westbrook, Chapter 15 Recognition in the United States: Is a Debtor “Presence” Required?, 24 Int’l Insolvency Rev. 28 (2015)).

69See id. at 83 (“Contracts create property rights for the parties to the contract. A debtor’s contract rights are intangible property of the debtor. (citing Slater v. Town of Albion (In re Albion Disposal, Inc.), 217 B.R. 394, 407–08 (W.D.N.Y. 1997) (“[I]t is well-established . . . that a debtor’s contractual rights—including rights arising under post-petition contracts—are included in the property of the estate.”); U.S. Bank N.A. v. Am. Airlines, Inc., 485 B.R. 279, 295 (Bankr. S.D.N.Y. 2013), aff’d, 730 F.3d 88 (2d Cir. 2013); Wallach v. Nowak (In re Sherlock Homes of W.N.Y., Inc.), 246 B.R. 19, 23–24 (Bankr. W.D.N.Y. 2000) (stating that listing contracts between the debtor/broker dealer and prospective sellers bestowed contractual rights upon the parties and the contract rights were assets of the debtor))).

70See id. at 82.

71Compare Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238 (2d Cir. 2013), and In re Berau, 540 B.R. 80, and In re Suntech, 520 B.R. at 412, and In re Octaviar, 511 B.R. 361, with In re Soundview Elite, Ltd., 503 B.R. 571 (Bankr. S.D.N.Y. 2014), and Transcript of Bemarmara Hearing, supra note 9.

72Compare In re Barnet, 737 F.3d 238, with In re Octaviar, 511 B.R. 361, and In re Soundview Elite, 503 B.R. 571, and Transcript of Bemarmara Hearing, supra note 9.

73See Transcript of Bemarmara Hearing, supra note 9, at 8 (stating that the case was from December 11, 2013).

74See id.

75See id. (“[T]he absence of assets in the United States disqualifies a Chapter 15 filing.”).

76See id. (“[T]his Court does not agree with the decision of the Second Circuit.”).

77Id. at 8–9.

78Id. at 9 (emphasis added).

79See id. (“[A] Foreign Representative . . . is petitioning the Court, not the Debtor in the foreign proceeding.”).

80See id. (“The Foreign Representative is asking for recognition in aid of that foreign proceeding.”).

81See id. (“[T]he requirements of Section 109(a) do not control.”).

82See id. (omitting evidence or a source for this claim against applying § 109(a) to chapter 15).

83See id. (“I would also read to you from Section 1502 which is the definition section for Chapter 15 . . . .”).

84Id.

85See id. (“[T]here was nothing in that definition . . . [that] reflects upon a requirement that [the] Debtor have assets.”).

86Id. Note that the Soundview Elite decision may create a tangential problem for determining who may be a debtor under the Code. See 503 B.R. 571 (Bankr. S.D.N.Y. 2014). The Bankruptcy Court for the Southern District of New York issued Soundview Elite in January 2014, in between the Barnet and Octaviar decisions of December 2013 and June 2014, respectively. See 737 F.3d 238 (2d Cir. 2013); 511 B.R. 361, 372 (Bankr. S.D.N.Y. 2014); 503 B.R. 571. The Octaviar court applied § 109(a) to a chapter 15 proceeding, but before then, the Soundview Elite court stated explicitly that chapter 15 “[r]ecognition . . . is not governed by domicile.” 503 B.R. at 595 n.67; see also 511 B.R. at 364 (stating that 11 U.S.C. § 109(a) applies to chapter 15). Instead, recognition of the foreign proceeding is determined by the debtor’s COMI. See In re Soundview Elite, 503 B.R. at 595 n.67 (“[R]ecognition . . . turns on the COMI of the foreign debtor.” (citing 11 U.S.C. § 1517(a)(1) (2012))); In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 127–28 (Bankr. S.D.N.Y. 2008), aff’d, 389 B.R. 325 (S.D.N.Y. 2008)). At least in the Southern District of New York then, § 109(a)’s reference to domicile may not apply to chapter 15 cases, even though § 109 discusses eligibility, and § 1517 discusses recognition. Compare In re Soundview Elite, 503 B.R. at 595 n.67, with 11 U.S.C §§ 109, 1517.

87See 11 U.S.C. §§ 1501–1532; see also In re Soundview Elite, 503 B.R. at 595 n.67 (“Recognition under U.S. law, [is] determined under Bankruptcy Code sections 1515 through 1524 . . . .”).

88Kent Greenawalt, Legislation: Statutory Interpretation: 20 Questions 37 (Found. Press 1999).

89Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 322 & n.15 (5th Cir. 2010) (quoting Jay Lawrence Westbrook, Chapter 15 at Last, 79 Am. Bankr. L.J. 713, 720 (2005) [hereinafter Westbrook, Chapter]).

90See 11 U.S.C. § 1509(a) (“A foreign representative may commence a case under section 1504 by filing directly with the court a petition for recognition of a foreign proceeding under section 1515.”); see also id. § 1504 (“A case under this chapter is commenced by the filing of a petition for recognition of a foreign proceeding under section 1515.”).

91See id. § 1509(b)(3) (“If the court grants recognition under section 1517 . . . a court in the United States shall grant comity or cooperation to the foreign representative.”).

92See id. § 1517(a).

93Id. § 1517(a)(2).

94Id. § 1517(3).

95See id. § 1517.

96See, e.g., id. § 1501(c)(1) (referring to § 109(b)); id. § 1501(c)(2) (referring to § 109(e)); id. § 1505 (referring to § 541); id. § 1509(e) (referring to § 306); id. § 1511 (referring to §§ 301–303); id. § 1513(b)(1) (referring to §§ 507 and 726); id. § 1517(d) (referring to § 350); id. § 1519(f) (referring to § 362(a), (b), and (n)); id. § 1520(a)(1) (referring to §§ 361 and 362); id. § 1520(a)(2) (referring to §§ 363, 549, and 552); id. § 1520(a)(3) (referring to §§ 363 and 552); id. § 1520(a)(4) (referring to § 552); id. § 1521(a)(7) (referring to §§ 522, 544, 545, 547, 548, 550, and 724(a)); id. § 1521(f) (referring to § 362(a), (b), and (n)); id. § 1522(d) (referring to § 322); id. § 1523(a) (referring to §§ 522, 544, 545, 547, 548, 550, 553, and 724(a)); id. § 1528 (referring to 11 U.S.C. § 541(a) and 28 U.S.C. § 1334(e)); id. § 1529(4) (referring to § 305); id. § 1531 (referring to § 303); see also id. § 304 (repealed 2005) (not referring to § 109(a) nor any other section, for that matter).

97See ImagePoint, Inc. v. JPMorgan Chase Bank, N.A., No. 12 Civ. 7183 (LAK) (GWG), 2014 U.S. Dist. LEXIS 87695, at *40 (S.D.N.Y. June 25, 2014) (“Under that doctrine [of expressio unius], ‘when certain matters are mentioned . . . , other similar matters not mentioned were intended to be excluded.’” (quoting Plumbers & Steamfitters Local No. 150 Pension Fund v. Vertex Const. Co., 932 F.2d 1443, 1449 (11th Cir. 1991)) (citing In re Celotex Corp., 487 F.3d 1320, 1334 (11th Cir. 2007); Covington Square Assocs., LLC v. Ingles Mkt., Inc., 641 S.E.2d 266 (Ga. Ct. App. 2007))); see also Rushton v. ANR Co. (In re C.W. Mining Co.), 740 F.3d 548, 560 (10th Cir. 2014) (“Common sense, reflected in the canon expressio unius est exclusio alterius, suggests that the specification of [one provision] implies the exclusion of others.” (quoting Elwell v. Okla. ex. rel. Bd. of Regents of the Univ. of Okla., 693 F.3d 1303, 1312 (10th Cir. 2012))); Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 324 & n.22 (5th Cir. 2010) (“Generally where there are enumerated exceptions ‘additional exceptions are not to be implied, in the absence of a contrary legislative intent.’ And the oft recited maxim expressio unius est exclusio alterius carries weight.” (quoting Andrus v. Glover Const. Co., 446 U.S. 608, 616–17 (1980)) (citing Tex. Oil & Gas Ass’n v. EPA, 161 F.3d 923, 938–39 (5th Cir. 1998))); Neidich v. Lorenzo (In re Lorenzo), No. 13-23100-CIV-ROSENBAUM, 2014 U.S. Dist. LEXIS 64321, at *10–11 (S.D. Fla. May 8, 2014) (citing TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”); In re Sunahara, 326 B.R. 768, 781 (B.A.P. 9th Cir. 2005) (using expressio unius est exclusio alterius to state that § 1329(b) applies some “Code sections to plan modifications but does not apply § 1325(b)”); In re Davis, 439 B.R. 863, 867 (Bankr. N.D. Ill. 2010)).

9811 U.S.C. § 1508; see also British Am. Ins. Co. v. Fullerton (In re British Am. Ins. Co.), 488 B.R. 205, 212 (Bankr. S.D. Fla. 2013) (“International uniformity is a primary goal of the Model Law and thus of chapter 15.” (citing 11 U.S.C. §§ 1501(a), 1508)); Lavie v. Ran, 406 B.R. 277, 281 (S.D. Tex. 2009) (“Unique to the interpretation of Chapter 15 of the Bankruptcy Code, ‘the court shall consider its international origin, and the need to promote an application of [Chapter 15] that is consistent with the application of similar statutes adopted by foreign jurisdictions.’” (citing 11 U.S.C. § 1508 (2006))), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010).

99See 11 U.S.C. § 1508 (2012).

100See In re British Am. Ins. Co., 488 B.R. at 212 (“UNCITRAL expressed the desire that the Model Law be enacted by adopting countries with as few changes as possible ‘in order to achieve a satisfactory degree of harmonization and certainty.’” (citing Guide to Enactment of the UNCITRAL Model Law on Cross-Border Insolvency, supra note 25, at ¶ 12)).

101See 11 U.S.C. § 1508.

102See Transcript of Bemarmara Hearing, supra note 9, at 9 (discussing the applicability of § 109(a)).

103See 11 U.S.C. § 109(a); Transcript of Bemarmara Hearing, supra note 9, at 9.

104See 11 U.S.C. § 101(24).

105See Transcript of Bemarmara Hearing, supra note 9, at 9. Even if § 109(a) did apply, in the context of a business, courts have held that “[a] principal place of business is not required to satisfy Section 109(a)’s requirement, rather it is merely ‘a’ place of business.” In re Zais Inv. Grade Ltd. VII, 455 B.R. 839, 844 (Bankr. D.N.J. 2011) (citing In re Paper I Partners, L.P., 283 B.R. 661, 672 (Bankr. S.D.N.Y. 2002)).

106See 11 U.S.C. § 1502.

107Id. § 1524.

108See id. § 1518(2) (“From the time of filing the petition for recognition of a foreign proceeding, the foreign representative shall file with the court promptly a notice of change of status concerning . . . any other foreign proceeding regarding the debtor that becomes known to the foreign representative.”).

109See id. § 1521(b) (“[T]he court may, at the request of the foreign representative, entrust the distribution of all or part of the debtor’s assets located in the United States to the foreign representative or another person.”).

110See, e.g., id. § 1509(f) (“Notwithstanding any other provision of this section, the failure of a foreign representative to commence a case or to obtain recognition under this chapter does not affect any right the foreign representative may have to sue in a court in the United States to collect or recover a claim which is the property of the debtor.”); id. § 1512 (“Upon recognition of a foreign proceeding, the foreign representative in the recognized proceeding is entitled to participate as a party in interest in a case regarding the debtor under this title.”); id. § 1515(c) (“A petition for recognition shall also be accompanied by a statement identifying all foreign proceedings with respect to the debtor that are known to the foreign representative.”); id. § 1519(a) (“From the time of filing a petition for recognition until the court rules on the petition, the court may, at the request of the foreign representative, where relief is urgently needed to protect the assets of the debtor or the interests of the creditors, grant relief of a provisional nature . . . .”); id. § 1519(a)(2) (“[E]ntrusting the administration or realization of all or part of the debtor’s assets located in the United States to the foreign representative or another person . . . .”); id. § 1520(a)(3) (“[T]he foreign representative may operate the debtor’s business and may exercise the rights and powers of a trustee under and to the extent provided by sections 363 and 552.”); id. § 1521(a) (“Upon recognition of a foreign proceeding, . . . where necessary to effectuate the purpose of this chapter and to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief . . . .”); id. § 1521(a)(5) (“[E]ntrusting the administration or realization of all or part of the debtor’s assets within the territorial jurisdiction of the United States to the foreign representative or another person . . . .”); id. § 1523(a) (“Upon recognition of a foreign proceeding, the foreign representative has standing in a case concerning the debtor pending under another chapter of this title . . . .”).

111See id. §§ 1501–1532.

112See id. § 109(a).

113See id. § 1517.

114Or, vice versa, where a foreign proceeding seeks assistance with a case that arose under chapter 15, another category where chapter 15 applies. See id. § 1501(b)(2).

115See id. §§ 109(a), 1517.

116See id. §§ 109(a), 1501–1532; Transcript of Bemarmara Hearing, supra note 9.

117See 11 U.S.C. § 1502(4) (“‘[F]oreign main proceeding’ means a foreign proceeding pending in the country where the debtor has the center of its main interests . . . .”); id. § 1516(c) (“[T]he debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the center of the debtor’s main interests.”); id. § 1517(b)(1) (“Such foreign proceeding shall be recognized—as a foreign main proceeding if it is pending in the country where the debtor has the center of its main interests . . . .”).

118See 406 B.R. 277, 283 (S.D. Tex. 2009), aff’d sub nom. Lavie v. Ran (In re Ran), 607 F.3d 1017 (5th Cir. 2010) (“[T]he debtor’s registered office, or habitual residence in the case of an individual, is presumed to be the center of the debtor’s main interests.” (quoting 11 U.S.C. § 1516(c) (2006)) (citing In re Tri-Continental Exch., 349 B.R. 627, 634 (Bankr. E.D. Cal. 2006))).

119See 11 U.S.C. § 1502; Lavie, 406 B.R. at 283 (citing Case C-452/93, Pedro Magdalena Fernández v. Comm’n, 1994 E.C.R. 4295; Case 13/73, Anciens Établissements D. Angenieux fils aîné v. Hakenberg, 1973 E.C.R. 935). To European courts, habitual residence depends on whether the debtor intends to stay in the location permanently, on the length of time spent in the location, and on the occupational or familial ties to the area. See Lavie, 406 B.R. at 283 (citing Case 41/84, Pinna v. Caisse d’allocations familiales de la Savoie, 1986 E.C.R. 1). These factors are not determinative, however, if other evidence establishes clearly that the debtor’s COMI is somewhere else. See id. (citing Case 284/87, Schäflein v. Comm’n, 1988 E.C.R. 4475).

120See Lavie, 406 B.R. at 283–84.

121Id. at 283–85 (citing In re SPhinX, Ltd., 351 B.R. 103, 120 n.22 (Bankr. S.D.N.Y. 2006), aff’d, 371 B.R. 10 (S.D.N.Y. 2007)) (“The use of the present tense implies that the court’s . . . analysis should focus on whether the debtor has [a presence] in the foreign country when the foreign representative files for recognition under Chapter 15.”). Additionally, “[t]he Bear Stearns court agreed, noting that ‘[i]f the debtor does not have its center of main interests or at least an establishment in the country of the foreign proceedings, the bankruptcy court should not grant recognition . . . .’” Id. at 285 (citing In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 389 B.R. 325, 334 (S.D.N.Y. 2008); In re SPhinX, 351 B.R. at 120 n.22).

122See id. at 285 (“Because courts undertake the . . . analysis when the foreign representative files for recognition, it follows that the court should weigh only the evidence as it exists at the time of filing in the U.S. court.”).

123See id. at 283–84, 285.

124In re Ran, 607 F.3d at 1025.

125See id. (“[T]he grammatical tense in which [§ 1502] is written provides guidance.”).

126Id.

127See id. (“If Congress had, in fact, intended bankruptcy courts to view the COMI determination through a lookback period or on a specific past date, it could have easily said so. This is particularly significant because Congress is clearly capable of creating lookback periods in the Bankruptcy Code.” (citing 11 U.S.C. § 522(b)(3)(A) (2006) (creating a lookback provision for property exemptions))). The Fifth Circuit’s argument is flawed in two ways, discussed later in this Comment.

128See id. (reiterating that “[c]hapter 15 was implemented by Congress in an attempt to harmonize transnational insolvency proceedings,” but failing to state why examining a debtor’s COMI when a chapter 15 petition for recognition is filed satisfies chapter 15’s purpose).

129See id. (“[T]here would be an increased likelihood of conflicting COMI determinations, as courts may tend to attach greater importance to activities in their own countries, or may simply weigh the evidence differently.”).

130See id. at 1028.

131See 400 B.R. 266, 286 (Bankr. D. Nev. 2009) (“[S]hould COMI be determined as of the time of the filing of the petition for recognition, or should the court look back and determine COMI in light of a debtor’s operational history?”).

132See id. at 290.

133See id. (“[A lookback period] would frustrate the goals of using COMI to ‘harmonize’ insolvency proceeding recognition transnationally, and it would make the determination of COMI imprecise and often incorrect.”).

134See id. at 290–91 (“[I]n his past, Mr. Ran had substantial interests in Israel, but on the date of the petition for recognition, he had effectively no interests in that country.” (citing In re Ran, 390 B.R. 257, 260 (Bankr. S.D. Tex. 2008))).

135See id. at 291 (“[Giving] weight to the debtor’s interests over the course of its operational history may destroy the uniformity and harmonization that is the goal of employing the COMI inquiry.” (citing In re Ran, 390 B.R. 257, 300 (Bankr. S.D. Tex. 2008))).

136See id. at 292 (“[English cases] seem to select a time linked to the commencement or service of the relevant insolvency proceeding.” (citing Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974 [39], [55] (Eng.); Re Collins & Aikman Corp. Grp., [2005] EWHC (Ch) 1754 [39] (Eng.))).

137Id. (citing Shierson, [2005] EWCA (Civ) at [39]; Official Receiver v. Eichler, [2007] BPIR (Ch D.) 1636 (Eng.)).

138See id.

139See 441 B.R. 713 (Bankr. S.D. Fla. 2010).

140See id. at 720 (“Several courts have likened COMI to the ‘principal place of business’ concept under United States law.” (citing In re British Am. Ins. Co., 425 B.R. 884, 908–09 (Bankr. S.D. Fla. 2010); In re Bear Stearns High-Grade Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122, 129 (Bankr. S.D.N.Y. 2007), aff’d, 389 B.R. 325 (S.D.N.Y. 2008))).

141Id. (equating a “nerve center” with a corporation’s headquarters (citing Hertz Corp. v. Friend, 559 U.S. 77, 95 (2010); In re Fairfield Sentry Ltd., 440 B.R. 60 (Bankr. S.D.N.Y. 2010))).

142See id. (“The court first considers the location of the Debtor’s headquarters and the location of those who actually manage the Debtor.”).

143See id. at 721.

144See id. at 722–23 (citing In re British Am. Ins. Co., 425 B.R. at 914; In re Fairfield Sentry, 440 B.R. 60).

145See id. at 723 (citing In re British Am. Ins. Co., 425 B.R. at 914; In re Fairfield Sentry, 440 B.R. 60).

146See id. (citing In re Fairfield Sentry, 440 B.R. at 66).

147See id. (citing In re Fairfield Sentry, 440 B.R. at 66).

148See 425 B.R. at 909.

149See id. at 908.

150See id. at 909.

151See id. at 909–10 (“[There was] concern for the possibility of conflicting COMI determinations in various countries arising from different analyses of a debtor’s historical activities”).

152See id. at 910 (“Chapter 15 itself provides guidance on the temporal focus of the COMI analysis.”).

153See id. (“[Because a] chapter 15 case is commenced by the filing of a petition for recognition under section 1504[, t]he present, for purposes of a court making a determination under section 1517(b)(1), can be no earlier than the date that chapter 15 petition was filed.”).

154Id.

155Id.

156See In re Australian Equity Investors [2012] FCA 1002 (5 Sept. 2012) (Austl.).

157See id.

158See id.

159See Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 133 (2d Cir. 2013).

160See id.

161See id.

162Id. at 133–34 (citing Carr v. United States, 560 U.S. 438 (2010); Dobrova v. Holder, 607 F.3d 297, 301 (2d Cir. 2010) (relying on Congress’s use of present perfect tense in statutory construction)).

163See id. at 134 (“[The court was] guided by the tense used in a provision of the Bankruptcy Code allowing bankruptcy trustees to hire professionals . . . as long as the professionals ‘do not hold or represent an interest adverse to the estate.’” (quoting Bank Brussels Lambert v. Coan (In re AroChem Corp.), 176 F.3d 610, 623 (2d Cir. 1999))).

164See id. (citing 11 U.S.C. § 1517(b)(1) (2012)).

165Id. (“COMI determination based on the date of the initiation of the foreign proceeding is not compelled by the statute [because a] foreign proceeding ‘is pending’ only after it has been commenced.” (emphasis added) (quoting 11 U.S.C. § 1517(b)(1))).

166See id. (“Under the text of the statute, therefore, the filing date of the Chapter 15 petition should serve to anchor the COMI analysis.”).

167See id. (“Nearly every federal court to address this [temporal] question has determined that COMI should be considered as of the time the Chapter 15 petition is filed.”).

168See id. (“Every operative verb is written in the present or present progressive tense. . . . Congress’s choice to use the present tense requires courts to view the COMI determination in the present, i.e. at the time the petition for recognition was filed. If Congress had, in fact, intended bankruptcy courts to view the COMI determination through a look-back period or on a specific past date, it could have easily said so.” (emphasis omitted) (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010))).

169See id. (referring to a lookback period in § 522(b)(3)(A) (citing In re Ran, 607 F.3d at 1025)).

170See id. (“[L]ooking at a company’s full operational history could make it more difficult to pinpoint a single COMI.”).

171See id. at 135 (“[Courts] throughout the country appear to have examined a debtor’s COMI as of the time of the Chapter 15 petition.” (citing In re Fairfield Sentry Ltd., No. 10 Civ. 7311 (GBD), 2011 U.S. Dist. LEXIS 105770, at *6 (S.D.N.Y. Sept. 16, 2011); In re British Am. Isle of Venice (BVI), Ltd., 441 B.R. 713, 720–21 (Bankr. S.D. Fla. 2010); In re British Am. Ins. Co., 425 B.R. 884, 909–10 (Bankr. S.D. Fla. 2010); In re Betcorp Ltd., 400 B.R. 266, 290–92 (Bankr. D. Nev. 2009))). But see In re Millennium Glob. Emerging Credit Master Fund Ltd., 474 B.R. 88, 92 (S.D.N.Y. 2012) (“COMI should be determined as of the date of the commencement of the foreign proceeding, rather than—as most of the courts that have looked at the issue have concluded—the date on which the Chapter 15 petition was filed.”).

172In re Fairfield Sentry, 714 F.3d at 136.

173See id.

174Id.

175See id.

176Id. (citing Council Regulation 1346/2000, supra note 20, at Preamble ¶ 13).

177See id. (“[A] proceeding in one EU member state is automatically recognized by all other EU member states.” (citing Council Regulation 1346/2000, supra note 20, at art. 16)). Furthermore,In In re Millennium Global, the bankruptcy court observed that “[t]he EU Regulation does not contemplate the commencement of a separate ancillary proceeding to seek recognition of a foreign insolvency case, as in the Model Law and chapter 15, as the members of the Union are automatically required to recognize foreign proceedings from the date of their opening.” But that conclusion does not persuade us that we should determine COMI under Chapter 15 based on the date of commencement of the foreign proceeding as the bankruptcy court held in that case; rather, it suggests that the EU Regulation may be a poor analog for interpreting Chapter 15.Id. at 136 n.9 (citing In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63, 74 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012)).

178See id. at 136 (“Although the EU Regulation might refer to a broader time frame for considering a debtor’s COMI, [the Regulation] is not a fit for construing Chapter 15.”).

179See id. at 134 n.8 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1026 (5th Cir. 2010)).

180Id. at 136–37 (citing Case C-341/04, Eurofood IFSC Ltd., 2006 E.C.R. I-3813, ¶ 33; Stanford Int’l Bank Ltd., [2010] EWCA (Civ) 137, [54–56] (Eng.)).

181See id. at 137 (“A COMI that is regular and ascertainable is not easily subject to tactical removal.” (citing Eurofood, 2006 E.C.R. at ¶ 35)).

182See id. (“[I]nternational sources are of limited use in resolving whether U.S. courts should determine COMI at the time of the Chapter 15 petition or in some other way.”).

183See In re Ir. Bank Resolution Corp. (In Special Liquidation), No. 13-12159 (CSS), 2014 Bankr. LEXIS 1990 (Bankr. D. Del. 2014).

184See id. at *36 (“The plain language of the statute clearly indicates that the relevant time period to consider is the date of filing of the Chapter 15 petition, not the debtor’s ‘entire operational history.’” (citing In re Fairfield Sentry, 714 F.3d at 133)).

185See id. (citing In re Fairfield Sentry, 714 F.3d at 134).

186See id. (citing In re Fairfield Sentry, 714 F.3d at 133). Sometimes, COMI will be the same under either scenario. See, e.g., id. at *36–37.

187See In re Creative Fin. Ltd., 543 B.R. 498, 518–19 (Bankr. S.D.N.Y. 2016); In re OAS S.A., 533 B.R. 83, 100 (Bankr. S.D.N.Y. 2015) (citing In re Fairfield Sentry, 714 F.3d at 133).

188See In re Kemsley, 489 B.R. 346 (Bankr. S.D.N.Y. 2013); In re Gerova Fin. Grp., Ltd., 482 B.R. 86 (Bankr. S.D.N.Y. 2012); In re Millennium Glob. Emerging Credit Master Fund Ltd., 458 B.R. 63 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012).

189See In re Millennium, 458 B.R. at 71.

190See id.

191See id. (“[T]he few cases on point (both business and individual) have determined the COMI of an entity . . . as of the date of the filing of the chapter 15 petition.” (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010) (individual); In re Fairfield Sentry, Ltd., 440 B.R. 60 (Bankr. S.D.N.Y. 2010) (business); In re British Am. Ins. Co., 425 B.R. 884, 909–11 (Bankr. S.D. Fla. 2010) (business); In re Betcorp Ltd., 400 B.R. 266, 290–92 (Bankr. D. Nev. 2009) (business))).

192See id. (“[A]ny other date in the past would create a serious chance of conflict with the decisions of other courts.” (citing In re Ran, 607 F.3d at 1025, 1026)).

193See id. at 72.

194See id. (“[T]he courts do not explain why they assume that the statute refers to the filing of the chapter 15 petition rather than the filing of the petition in the case for which recognition is sought.”).

195See id. (“[T]he U.S. case is ancillary or secondary to the foreign proceeding.” (citing 11 U.S.C. § 1504 (2006); In re Toft, 453 B.R. 186, 189 (Bankr. S.D.N.Y. 2011))).

196Id. at 72 n.20 (“[T]here is a ‘United States policy in favor of a general rule that countries other than the home country of the debtor, where a . . . proceeding would be brought, should usually act through ancillary proceedings in aid of the . . . [foreign] proceedings. . . .” (quoting H.R. Rep. No. 109-31, pt. 1, 107–08 (2005), reprinted in 2005 U.S.C.C.A.N. 88 (commentary relating to 11 U.S.C. § 1504 (2006)))).

197Id. at 72.

198See id.

199See id. (“The substantive date for the determination of the COMI issue is at the date of the opening of the foreign proceeding for which recognition is sought.”).

200See id.

201See id.

202Id. (quoting Westbrook, Chapter, supra note 89, at 719–20); see also id. at 72 n.21 (citing Jay Lawrence Westbrook, Locating the Eye of the Financial Storm, 32 Brook. J. Int’l L. 1019, 1020 n.9 (2007) (“COMI is similar to standards like ‘principal place of business,’ ‘chief executive office,’ or ‘real seat’ that one finds in many statutes in the United States and elsewhere.”)); In re Tri-Continental Exch., 349 B.R. 627, 633 (Bankr. E.D. Cal. 2006) (quoting Westbrook, Chapter, supra note 89, at 719–20).

203See In re Millennium, 458 B.R. at 72 (citing In re Betcorp Ltd., 400 B.R. 266, 287–88 (Bankr. D. Nev. 2009); In re Basis Yield Alpha Fund (Master), 381 B.R. 37, 48 (Bankr. S.D.N.Y. 2008)).

204See id. (“[T]he date for determining an entity’s place of business refers to the business of the entity before it was placed into liquidation.”).

205See id. (“A debtor does not continue to have a principal place of business after liquidation is ordered and the business stops operating.”).

206Id. at 73.

207See id. at 73, 73 n.22 (“[T]he drafters of the Model Law would not have employed the term with a reorganization case in mind because reorganization is rare in most countries outside the United States.” (citing Terence C. Halliday, Legitimacy, Technology, and Leverage: The Building Blocks of Insolvency Architecture in the Decade Past and the Decade Ahead, 32 Brook. J. Int’l L. 1081, 1094 (2007); Christoph G. Paulus, Global Insolvency Law and the Role of Multinational Institutions, 32 Brook. J. Int’l L. 755 n.18 (2006–2007); U.N. Comm’n on Int’l Trade Law, UNCITRAL Legislative Guide on Insolvency Law, U.N. Pub. Sales No. E.05.V.10 (2005))).

208Id. at 73.

209Id. (citing 11 U.S.C. § 101(23) (1990) (amended by Pub. Law. No. 109-8 (2005))).

210See id. (“[T]he determination as to ‘principal place of business’ [is] to be made as of ‘the commencement of the proceeding,’ i.e., the foreign proceeding.”).

211See id. at 73, 73 n.23 (“The Model Law simplified and shortened the definition . . . , but there is no indication in chapter 15 or the legislative history that Congress intended to change the prior bankruptcy practice of looking to the date when foreign proceedings were first commenced.” (citing Mark Lightner, Determining the Center of Main Interests Under Chapter 15, 18 J. Bankr. L. & Prac. 5 Art. 2, n.76 (2009) (stating that there is no legislative history on the issue))).

212See id. at 74; see also id. at 73 n.25 (citing Case C-444/07, MG Probud Gdynia, sp. z o.o., 2010 E.C.R. I-417 (requiring recognition of a Polish insolvency proceeding in Germany)).

213See id. at 74.

214See id. at 74 n.26 (citing Stanford Int’l Bank Ltd., [2010] EWCA (Civ) 137, [54], [56(4)] (Eng.); Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974, [38], [55], [71] (Eng.); Lightner, supra note 211 (recognizing that the EU Regulation requires a COMI determination as of the date of the opening of insolvency proceedings)).

215Id. at 74–75 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010); In re Betcorp, 400 B.R. at 291–92).

216See id. at 75.

217See id. at 75 n.27 (citing Williams v Simpson HC Hamilton CIV 2010-419-1174, 12 Oct. 2010 (N.Z.)). The Millennium court statedOtherwise, the result might have been to prevent an English estate administrator from any relief in New Zealand and possibly to allow the debtor, who had apparently moved from England to New Zealand, to retain some or all of the millions of dollars in gold that was found buried in his basement.Id. (citing Williams CIV 2010-419-1174).

218See id. at 75 n.28 (citing 11 U.S.C. § 1501(a)(1) (2006); In re Atlas Shipping A/S, 404 B.R. 726, 738 (Bankr. S.D.N.Y. 2009)).

219See id. at 75.

220See id. at 76.

221See In re Gerova Fin. Grp., Ltd., 482 B.R. 86 (Bankr. S.D.N.Y. 2012).

222See id. at 92 (citing Rep. on Working Group V’s 41st Sess., supra note 28, at ¶ 60 (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)). The Gerova court held that even if it analyzed COMI on the chapter 15 petition date, its conclusion would be the same. See id. at 93.

223See In re Kemsley, 489 B.R. 346 (Bankr. S.D.N.Y. 2013).

224Id. at 353.

225See id. at 354.

226Id.

227See id.

228See id. (“[The chapter 15 date] can vary greatly depending on circumstances and the diligence of the foreign representative.”).

229See id. at 356 (“Life is fluid, but COMI is a concept that is determined as of a fixed date . . . based on the circumstances that then existed.”).

230See id. at 359 (citing Lavie v. Ran (In re Ran), 607 F.3d 1017, 1025 (5th Cir. 2010)).

231Id. (citing In re Ran, 607 F.3d at 1025).

232See id.

233See id.

234See id. at 359, 360.

235See In re Edelsten Kapila [2014] FCA 1112 (10 Oct. 2014) (Austl.).

236See id.

237See id.

238See id.

239See 458 B.R. 63, 72 (Bankr. S.D.N.Y. 2011), aff’d, 474 B.R. 88 (S.D.N.Y. 2012).

240Chase Manhattan Mortg. Corp. v. Shapiro (In re Lee), 530 F.3d 458, 470 (6th Cir. 2008) (citing Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.”); United States v. Ron Pair Enters., 489 U.S. 235 (1989) (“[W]here, as here, the statute’s language is plain, the sole function of the courts is to enforce it according to its terms.”)). The plain meaning analysis has been applied by the Supreme Court in at least eleven additional cases since 1991. See In re Lee, 530 F.3d at 470 n.10 (citing Travelers Cas. & Sur. Co. of Am. v. Pac. Gas & Elec. Co., 549 U.S. 443 (2007); Till v. SCS Credit Corp., 541 U.S. 465, 486 (2004) (Thomas, J., concurring); Lamie v. United States Tr., 540 U.S. 526, 534 (2004); FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 304 (2003); Rake v. Wade, 508 U.S. 464, 473 (1993); Patterson v. Shumate, 504 U.S. 753, 757–58 (1992); Taylor v. Freeland & Kronz, 503 U.S. 638, 642–43 (1992); Union Bank v. Wolas, 502 U.S. 151, 158 (1991); Toibb v. Radloff, 501 U.S. 157, 160 (1991)); see also Ransom v. FIA Card Servs., N.A., 562 U.S. 61, 69 (2011) (looking to dictionary definitions to obtain a statute’s ordinary meaning (citing Hamilton v. Lanning, 560 U.S. 505 (2010))); Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 252 (2010) (declining to view a statute in a way contrary to its plain meaning). The plain meaning theme has been reiterated by courts numerous times. See, e.g., Ford Motor Co. v. United States, 768 F.3d 580, 587 (6th Cir. 2014) (explaining that a court looks to the statute’s plain language first (citing Nat’l Air Traffic Controllers Ass’n v. Sec’y of the DOT, 654 F.3d 654, 657 (6th Cir. 2011); Menuskin v. Williams, 145 F.3d 755, 768 (6th Cir. 1998))); Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 737 F.3d 238, 250 (2d Cir. 2013) (“A properly limited contextual analysis of statutory language is encompassed within the ambit of a textual analysis.” (citing In re Application of N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 406 (2d Cir. 2009) (“[W]e examine the text of the statute itself, interpreting provisions in light of their ordinary meaning and their contextual setting.”); United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (“In determining whether statutory language is ambiguous, we ‘reference the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’”))); Kulakowski v. Walton (In re Kulakowski), 735 F.3d 1296, 1300 (11th Cir. 2013) (“In analyzing the Bankruptcy Code, we begin with the text of the relevant provision . . . and confine our analysis to the plain language of the statute.” (citing United States v. Zuniga-Arteaga, 681 F.3d 1220, 1223 (11th Cir. 2012))); Morning Mist Holdings Ltd. v. Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127, 136 (2d Cir. 2013) (“[T]he statutory text controls, first and ultimately . . . .”); Ad Hoc Grp. of Vitro Noteholders v. Vitro SAB De CV (In re Vitro SAB De CV), 701 F.3d 1031, 1047 (5th Cir. 2012) (“[Courts] interpret statutes according to their plain meaning.” (citing Gaddis v. United States, 381 F.3d 444, 472 (5th Cir. 2004))); In re Ran, 607 F.3d at 1025 (“In the bankruptcy context, the analysis must end with the text if the language is clear and does not lead to an absurd result.” (citing Ron Pair Enters., 489 U.S. at 238)); Lavie v. Ran, 406 B.R. 277, 281 (S.D. Tex. 2009) (“[T]he ‘plain meaning’ of words should be utilized when interpreting an ambiguous statute or when terms are not otherwise defined.” (citing Mead Corp. v. Tilley, 490 U.S. 714, 715 (1989); Bankamerica Corp. v. United States, 462 U.S. 122, 122–23 (1983))), aff’d sub nom. In re Ran, 607 F.3d 1017; In re Octaviar Admin. Pty Ltd., 511 B.R. 361, 373 (Bankr. S.D.N.Y. 2014) (“[T]he Court must abide by the plain meaning of the words in the statute.” (citing In re Barnet, 737 F.3d 238)).

24111 U.S.C. § 1502(4) (2012); see also In re Millennium, 458 B.R. at 72 (“[T]he courts do not explain why they assume that the statute refers to the filing of the chapter 15 petition rather than the filing of the petition in the case for which recognition is sought”).

242See In re Kemsley, 489 B.R. at 359 (“The section is silent regarding the ‘as of’ date for analyzing COMI and can be properly read to mean the country where a debtor has his, her or its COMI as of the date of opening of the foreign proceeding. The textual analysis adopted by the Fifth Circuit suggests that the language supports testing for COMI when the chapter 15 petition is filed but does not provide meaningful temporal guidance for using that date.”).

243See In re Millennium, 458 B.R. at 83 (“The COMI requirement should not be applied in [such] a manner that would effectively establish a presumption against recognition of cases . . . .”).

244See id. at 72.

245See 11 U.S.C. § 1501; see also In re Barnet, 737 F.3d at 250–51 (citing 11 U.S.C. § 1501(a)); In re Ran, 607 F.3d at 1020–21 (“The statutory intent to conform American law with international law is explicit in the text of Section 1501(a), and is also expressed in Section 1508, which states that ‘[i]n interpreting this chapter, the court shall consider its international origin, and the need to promote an application of similar statutes adopted by foreign jurisdictions.’” (citing 11 U.S.C. § 1508 (2006); H.R. Rep. No. 109-31, pt. 1, at 105 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 169 (“[Chapter 15] incorporates the Model Law on Cross-Border Insolvency to encourage cooperation between the United States and foreign countries with respect to transnational insolvency cases . . . .”); 8 Collier on Bankruptcy ¶ 1501.01 (Alan N. Resnick & Henry J. Sommer eds., 15th ed. rev. 2008) (explaining the basis for Chapter 15))); Tacon v. Petroquest Res. Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 322 (5th Cir. 2010) (“The Model Law was ‘expressly designed to be integrated into local insolvency law’ and Chapter 15 closely hewed to the text of the enactment. ‘Any departures from the actual text of the Model Law . . . were as narrow and limited as possible.’ All this being part of an effort by the United States to harmonize international bankruptcy proceedings for the benefit of American businesses operating abroad. As directed by Congress, we mind this background as we discern the Chapter’s reach.” (citing Lief M. Clark, Ancillary and Other Cross-Border Insolvency Cases Under Chapter 15 of the Bankruptcy Code: A Collier Monograph § 2[4] (2008); Westbrook, Chapter, supra note 89, at 720)); Lavie, 406 B.R. at 281 (“It is axiomatic that statutes should not be construed in a way that defeats the statutory intent.” (citing United States v. Braverman, 373 U.S. 405, 408 (1963))); In re Betcorp Ltd., 400 B.R. 266, 276 (Bankr. D. Nev. 2009) (“The statutory intent to meld American law into international law is explicit . . . .” (citations omitted)).

246In re Millennium, 458 B.R. at 72 (citing 11 U.S.C. § 1504 (2006); In re Toft, 453 B.R. 186, 189 (Bankr. S.D.N.Y. 2011)); see also id. at 72 n.20 (citing H.R. Rep. No. 109-31, at pt. 1, 107–08 (“[In] the chapter 15 legislative history, . . . there is a ‘United States policy in favor of a general rule that countries other than the home country of the debtor, where a . . . proceeding would be brought, should usually act through ancillary proceedings in aid of the . . . [foreign] proceedings . . . .’”)).

247See id. at 72.

248In re Condor, 601 F.3d at 321 n.7 (emphasis added) (quoting United States v. Valle, 538 F.3d 341, 345 (5th Cir. 2008)).

249See In re Tri-Continental Exch., 349 B.R. 627, 634 (Bankr. E.D. Cal. 2006) (“The statutory presumption created by § 1516(c), on close examination, confirms that an entity’s ‘principal place of business’ in United States jurisprudence is that entity’s ‘center of main interests’ for purposes of § 1502(4).”). Other courts have equated COMI and principal place of business as well. See In re Betcorp, 400 B.R. at 287–88; In re Basis Yield Alpha Fund (Master), 381 B.R. 37, 48 (Bankr. S.D.N.Y. 2008).

250See In re Millennium, 458 B.R. at 72 (“A debtor does not continue to have a principal place of business after liquidation is ordered and the business stops operating.”).

251See id. at 73 (“[A foreign proceeding is] a proceeding . . . in a foreign country in which the debtor’s . . . principal place of business or principal assets were located at the commencement of the proceeding . . . .” (quoting 11 U.S.C. § 101(23) (1990), amended by Pub. L. No. 109-8 (2005))).

252See id. at 83 (citing Dewsnup v. Timm, 502 U.S. 410, 419 (1992) (“When Congress amends the bankruptcy laws, it does not write ‘on a clean slate’ . . . . This Court has been reluctant to accept arguments that would interpret the Code . . . to effect a major change in pre-Code practice that is not the subject of at least some discussion in the legislative history.”); Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 562 (1990) (“We will not read the Bankruptcy Code to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.”)).

253Id. at 73 n.23 (“[T]here is no indication in chapter 15 or the legislative history that Congress intended to change the prior bankruptcy practice of looking to the date on which foreign proceedings were first commenced.” (citing Lightner, supra note 211 (stating that there is no legislative history on the issue))).

254See In re Gerova Fin. Grp., Ltd., 482 B.R. 86, 92 (Bankr. S.D.N.Y. 2012) (citing Rep. on Working Group V’s 41st Sess., supra note 28, at ¶ 60 (stating that a proposed change to the Model Law to clarify that the COMI determination be made as of the date of the commencement of the foreign insolvency proceeding “received wide support”)); see also id. at 92 n.10 (citing U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Interpretation and Application of Selected Concepts of the UNICITRAL Model Law on Cross-Border Insolvency Relating to Centre of Main Interests (COMI), 42d Sess., Nov. 26–30, 2012, ¶ 128C, U.N. Doc. A/CN.9/WG.V/WP.107 (Sept. 13, 2012) (stating that use of the commencement date of the foreign proceeding is consistent with the evidence required to apply for recognition and the “relevance accorded the decision commencing the foreign proceeding and appointing the foreign representative”)).

255See In re Millennium, 458 B.R. at 75.

256See In re Kemsley, 489 B.R. 346, 354 (Bankr. S.D.N.Y. 2013).

257See id.

258In re Millennium, 458 B.R. at 75.

259See id. at 72.

260See 11 U.S.C. § 1501 (2012).

261See id. § 1508.

262See In re Millennium, 458 B.R. at 74 (“The date of the opening of initial insolvency proceeding is the only date that the original drafters of the term [COMI] for the EU Regulation could have contemplated.”); see also Lavie v. Ran (In re Ran), 607 F.3d 1017, 1026 (5th Cir. 2010) (“This is consistent with English cases interpreting the European Union Regulation, which seem to select a time linked to the commencement or service of the relevant insolvency proceeding.” (citing Shierson v. Vlieland-Boddy, [2005] EWCA (Civ) 974, [39], [55] (Eng.); Re Collins & Aikman Corp. Grp., [2005] EWHC (Ch) 1754, [39] (Eng.))).

263In re Millennium, 458 B.R. at 74.

264See id.

265See 11 U.S.C. § 1501(a).

266See U.N. Comm’n on Int’l Trade Law, Working Group V (Insolvency Law), Cross-Border Recognition and Enforcement of Insolvency-Related Judgements, 48th Sess., Dec. 14–18, 2015, U.N. Doc. A/CN.9/WG.V/WP.135 (Oct. 2, 2015) (discussing language for a new model law regarding recognizing and enforcing foreign insolvency judgments); Parliament & Council Regulation 2015/848 of 20 May 2015 on Insolvency Proceedings (Recast), 2015 O.J. (L 141) 19 (EU) (implementing years of insolvency amendments and applying to courts on June 26, 2017).

Executive Managing Editor, Emory Bankruptcy Developments Journal; J.D. Candidate, Emory University School of Law (2016); B.A., magna cum laude, Sally McDonnell Barksdale Honors College at the University of Mississippi (2013). I thank Professor Sue Payne for editing this Comment thoroughly, and I thank Professor Polly J. Price for influencing the interpretive canon of construction analysis in Section (II)(A)(3). Also, I thank the Emory Bankruptcy Developments Journal Editors and Staff Members for their contributions, especially Editor-in-Chief Armstead Lewis and Executive Managing Editors Michael P. Arwood and Nicole Hammond.