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Central Electricity Regulatory Commission. This decision appears to be the first to specifically address this issue, and it has broad implications for the viability of United States bankruptcy court proceedings for foreign entities whose only connection to the United States is the use of U. In addition, it leaves open the possibility that other New York law governed agreements such as bank loans or even commercial contracts could be used as the basis for United States Bankruptcy filing eligibility.
Chapter 15 of the Bankruptcy Code permits foreign debtors to obtain the protection of the United States bankruptcy courts in support of a foreign insolvency proceeding. Among many benefits to such protection is the ability a chapter 15 debtor has to bind United States creditors or entities to the terms of the foreign proceeding and to stay U.
For a petitioner to be eligible for chapter 15 protection however, among other things, the entity must be an eligible debtor. Barnet In re Barnet , F.
go October 28, mem. The Berau debtor filed an insolvency proceeding in Singapore, where the company has its headquarters, and the foreign representative filed for chapter 15 relief in the Southern District of New York. Judge Glenn found that the retainer was a sufficient basis for eligibility, citing to In re Octaviar Admin. Pty Ltd , B. The facts of the Berau case were not unusual.
Under the indenture, Berau also appointed an authorized agent for service of process in New York, and specified numerous acts that had to be performed by the indenture trustee in New York City, e.