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legislative history of Chapter 15 instructs the U.S. bankruptcy court to look to the Model Law, its Guide to
Enactment and other history as central to the legislative history to Chapter 15. 8
Further, and of significant consequence, Chapter 15 impacts proceedings within the United States commenced
not only under the U.S. Bankruptcy Code and in the U.S. bankruptcy courts, but also cases commenced under
other laws in other Federal, State and Local courts. If a non‐U.S. proceeding is a “foreign proceeding” as
defined under Chapter 15 section 1502(4), no relief may be obtained in aid of that proceeding or the debtor it
involves, other than relief in aid of collecting a debt owed to that debtor, from any court within the United
States, federal or state or local, unless a Chapter 15 petition for recognition of the “foreign proceeding” first is
filed with an appropriate U.S. federal bankruptcy court and that court enters an order granting recognition of
the “foreign proceeding.” 11 U.S.C. § 1509. Once a Chapter 15 recognition order has been obtained from a U.S.
bankruptcy court, all other courts within the United States are required to grant comity or cooperation to the
representative of the “foreign proceeding” who seeks their assistance. 11 U.S.C. §1509(b)(3).
b. Judicial Discretion Under Chapter 15
Chapter 15 is intended to afford non‐U.S. proceedings swifter, less subjective, and more certain and predictable
relief in the United States in aid of effectuation and implementation of the foreign proceeding. Accordingly, in
contrast to what was viewed as broad subjective discretion permitted under former section 304, the
bankruptcy court’s discretion in determining whether or not to grant Chapter 15 recognition is more severely
constrained if certain specified predicate criteria are met. 11 U.S.C. §1517.
Determining whether or not to grant recognition to a foreign proceeding is now intended to be a simple,
expeditious examination by the U.S. bankruptcy court of certain predicate criteria ~ the eligibility of the
foreign proceeding for assistance from U.S. courts, the credentials of the petitioning representative of that
proceeding, and the sufficiency of the application for recognition of the foreign proceeding. Moreover, the
U.S. court is required to act on a petition for recognition “at the earliest possible time.” 11 U.S.C. §1517(c). If the
court determines that the predicate criteria for recognition have been met, the court may not abstain from
hearing the case, even in the “interest of justice” or in the “interest of comity”. 28 U.S.C. §1334(c)(1). Under
such circumstances, the court may only refuse to grant recognition where the court determines that granting
recognition under the circumstances presented “would be manifestly contrary to the public policy of the
United States.” 11 U.S.C. §1506.
The U.S. court is not empowered by Chapter 15 or otherwise to impose U.S. law on non‐U.S. proceedings or to
second‐guess, re‐visit or re‐adjudicate the foreign court’s orders and decisions.
Indeed, Chapter 15 expressly instructs the court that “[i]n interpreting this chapter the court shall consider its
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.” 11 U.S.C. §1508. If the U.S. court finds the applicable foreign
law to be anathema to the most fundamental U.S. public policy, the U.S. court is not empowered to change the
foreign law. The U.S. court is only empowered to refuse to assist in the application of that foreign law. If the
U.S. court finds that the foreign proceeding and/or foreign representative have not met the predicate criteria
for recognition, the U.S. court is only empowered to refuse to assist the implementation of that foreign
proceeding within the territorial jurisdiction of the United States.
c. Eligibility Basics for Chapter 15 Recognition and Relief
To obtain relief from a U.S. bankruptcy court ancillary to and in aid of a non‐U.S. proceeding, certain predicate
requirements first must be met:
• The non‐U.S. proceeding must be Eligible for recognition under Chapter 15
• The Petitioner must be Eligible to file the Ch. 15 case in aid of that proceeding
• Commencement of the Chapter 15 case must be effected properly
8 House Report at 107.