Posts Tagged recognition of foreign proceeding
Looking over the fence in re B.C.I Fins. Pty Ltd. (In Liquidation). The rollercoaster world of conflict of laws.
In re B.C.I Fins. Pty Ltd. (In Liquidation) (thank you Daniel Lowenthal for flagging) illustrates to and fro exercise, hopping between laws, and the use of choice of law rules to establish (or not) jurisdiction. This method is often called the ‘conflicts method’ or ‘looking over the fence’: to establish whether one has jurisdiction a judge has to qualify his /her district as a place of performance of an obligation, or the situs of a property, requires the identification of a lex causae for the underlying obligation, application of which will in turn determine the situs of the obligation, property etc.
As Daniel points out, Bankruptcy Code section 109(a), says that “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality may be a debtor under this title.” Lane J considers the issue in Heading B and concludes that the Debtors’ Fiduciary Duty Claims against Andrew and Michael Binetter constitute property in the United States to satisfy Section 109(a).
There is no federal conflicts rule that pre-empts. New York conflict of law rules therefore apply. New York’s “greatest interest test” pointed to Australian substantive law to determine the situs of the fiduciary duties claims: “[t]he Liquidators were appointed by an Australian court, and are governed by Australian law, and Andrew Binetter is an Australian citizen. Perhaps even more importantly, the Fiduciary Duty Claims arose from acts committed in Australia and exist under Australian law, and any recovery will be distributed to foreign creditors through the Australian proceeding.’
Lane J then applies Australian substantive law eventually to hold on the situs of the fiduciary duty: considering the (competing) Australian law experts, he is most swayed by the point of view that under Australian law ‘not only debts, but also other choses in action, are for legal purposes localised and are situated where they are properly recoverable and are properly recoverable where the debtor resides.’ The Binetters reside in New York.
In summary: New York conflict of law rules look over the fence to locate the situs of a fiduciary debt to be in New York, consequently giving New york courts jurisdiction. A neat illustration of the conflicts method.
(Handbook of) EU private international law, Chapter 3, Heading