Fordham International Law Journal

Volume 38, Issue 5 2015 Article 7

When is Cross-Border Insolvency Recognition

Manifestly Contrary to Public Policy
Michael A. Garza∗

∗
Fordham University School of Law

Copyright c 2015 by the authors. Fordham International Law Journal is produced by The Berke-
ley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
When is Cross-Border Insolvency Recognition
Manifestly Contrary to Public Policy
Michael A. Garza

Abstract

This Comment argues that the Public Policy Exception of Chapter 15 should be invoked only
as a last resort and that, going forward, courts should engage in an analysis of §1506 only when
no other provision in Chapter 15 supports a decision to deny relief. To promulgate this argument
and to clarify the public policy exception under the Model Law and Chapter 15, this Comment
proceeds in three parts. First, Part I examines various public policy exceptions found in the law,
including Article 6 of UNCITRAL’s Model Law on Cross-Border Insolvency, nations adopting Ar-
ticle 6 of the Model Law into their insolvency laws, §1506 of the US Bankruptcy Code, and other
public policy exceptions found outside the context of bankruptcy law. Second, Part II explores
the five instances in which US Bankruptcy Courts have invoked the Public Policy Exception of
Chapter 15. Finally, Part III discusses the United States and other countries’ use of similar public
policy exceptions, and, extrapolating from these examples, contends that courts should rely on the
Public Policy Exception only when no other provision of Chapter 15 applies. Using the analysis
from Parts I and II, Part III establishes a framework for Chapter 15 that US courts should follow
when they are determining whether to grant relief in a case arising under Chapter 15 of the US
Bankruptcy Code.

KEYWORDS: Public Policy Exception, Article 6, Insolvency, Cross-Boarder, Section 1506,

Chapter 15, Safeguard, International Law
 COMMENT

WHEN IS CROSS-BORDER INSOLVENCY

RECOGNITION MANIFESTLY CONTRARY TO
PUBLIC POLICY?
Michael A. Garza*

INTRODUCTION ...........................................................................1588
I.PUBLIC POLICY EXCEPTIONS ................................................1591
A. The Model Law And Its Implementation ........................1592
1. Overview ...................................................................1592
2. The Model Law’s “Public Policy Exception” and
Its Implementation ....................................................1594
i. Nations adopting the language of Article 6
verbatim ..............................................................1595
ii. Nations excluding the word “manifestly”...........1596
iii. Nations adopting a similar provision ..................1597
B. Chapter 15 of the United States Bankruptcy Code .........1600
1. Overview ...................................................................1601
2. Interpreting Section 1506 ..........................................1604
C. Courts’ Interpretations of Public Policy Exceptions
Outside of Bankruptcy Law ............................................1606
1. The Public Policy Exception in Enforcement of
Judgment Cases .........................................................1606
2. The Public Policy Exception in International
Arbitration .................................................................1607
3. The Public Policy Exception in US Common Law...1610
II.US COURTS DENYING RELIEF BASED UPON § 1506 ........1612
A. Privacy Rights .................................................................1613

* FORDHAM UNIVERSITY SCHOOL OF LAW, J.D., 2015; RICE UNIVERSITY, B.A., 2012.
The Author expresses his gratitude to Professor Susan Block-Lieb for her guidance and
support in drafting this comment. The Author would also like to thank The Honorable Marvin
Isgur, The Honorable Elizabeth S. Stong, The Honorable Nancy H. Lord and their law clerks
for the time he spent in their chambers and for everything he was able to learn from them.
Finally, the Author is infinitely grateful for his mentor Natacha Carbajal and the endless
amount of support and advice she has provided.

1587
 1588 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

B. Due Process Rights .........................................................1615

C. Foreign Main Proceeding Pursued in Violation of an
Automatic Stay ................................................................1617
D. Discharge of Third-Party Guarantees ..............................1618
E. Protection of US Patent Licenses ....................................1620
III.A PROPOSED FRAMEWORK FOR CHAPTER 15 ................1622
A. The Language and Implementation of § 1506 Requires
a Narrow Interpretation ...................................................1622
B. The Framework of Chapter 15 Minimizes the Need to
Invoke § 1506 ..................................................................1623
1. Overview of the Various “Safeguard” Provisions ....1624
2. Structure of the “Safeguard” Provisions ...................1625
C. The Language of § 1506 Was Consciously Chosen to
Replicate Other Public Policy Exceptions. .....................1627
D. The General Purposes of Chapter 15 Similarly Require
Narrow Interpretation of § 1506......................................1628
CONCLUSION ................................................................................1629

INTRODUCTION
Section 1506 (the “Public Policy Exception” or “§ 1506”) under
Title 11 of the United States Code (the “Bankruptcy Code”) allows
US courts to refuse to take an action under Chapter 15 of the
Bankruptcy Code if the action would be manifestly contrary to the
Supports Debtor public policy of the United States. A few US bankruptcy courts have
invoked the Public Policy Exception even when there are other
grounds for refusal, mainly under 11 U.S.C. § 1522 or 11 U.S.C. §
1507(b). These decisions should not be relied upon. They improperly
dilute the intended narrowness of the Public Policy Exception and
ignore the international context upon which it was drafted.
On May 30, 1997, the United Nations Commission on
International Trade Law (“UNCITRAL”) adopted the Model Law on
Cross-Border Insolvency (the “Model Law”) to assist States in their
management of transnational insolvency cases in an efficient, fair,
and cost-effective manner.1 In 2005, the United States Congress

1. See United Nations Commission on International Trade Law (“UNCITRAL”) Model

Law on Cross-Border Insolvency with Guide to Enactment, U.N. Sales No. E.99.V.3, ¶ 22
(1997), enacted by G.A. Res.52/158, U.N. Doc. A/Res/52/158 (Jan 30, 1998) [hereinafter
Model Law] (providing a guide to enactment with the UNCITRAL Model Law on Cross-
2015] CROSS-BORDER INSOLVENCY 1589

enacted Chapter 15 of the Bankruptcy Code (“Chapter 15”)—the

United States’ version of the Model Law.2 In enacting Chapter 15,
Congress closely hewed to the text of the Model Law and, in doing
so, sought to achieve international cooperation and greater legal
certainty for trade and investment.3 For example, the language of the
narrow Public Policy Exception contained in Chapter 15 mirrors the
language of Article 6 of the Model Law—which allows courts to
refuse to take action.4 Specifically, § 1506 states: “Nothing in this
chapter prevents the court from refusing to take an action governed by
this chapter if the action would be manifestly contrary to the public
policy of the United States.”5
The proper interpretation of the Public Policy Exception has
been widely litigated.6 The majority of the resulting decisions have
held that the relief requested by foreign representatives under a

Border Insolvency); see also LOOK CHAN HO, CROSS-BORDER INSOLVENCY: A

COMMENTARY ON THE UNCITRAL MODEL LAW 7 (Look Chan Ho et al. eds., 3d ed. 2012)
[hereinafter CROSS-BORDER INSOLVENCY] (discussing the implementation of the UNCITRAL
Model Law on Cross-Border Insolvency).
2. See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No.
109–8, 119 Stat. 23 (2005) [hereinafter BAPCPA].
3. See Fogerty v. Petroquest Res., Inc. (In re Condor Ins. Ltd.), 601 F.3d 319, 322 (5th
Cir. 2010) (noting that Chapter 15 closely hewed to the text of the enactment and that any
departures from the actual text of the Model Law were as narrow and limited as possible.)
(internal quotations omitted); see also 11 U.S.C. § 1501 (discussing the purpose and scope of
application of Chapter 15).
4. See H-R Rep. No. 109-31, at 109 (2005) [hereinafter the “House Report”] (stating
that § 1506 “follows the Model Law article 5 exactly, is standard in UNCITRAL texts, and has
been narrowly interpreted on a consistent basis in courts around the world.”); compare Model
Law, supra note 1, at art. 15 (providing that “nothing in this Law prevents the court from
refusing to take an action governed by this Law if the action would be manifestly contrary to
the public policy of this State”) with 11 U.S.C. § 1506 (providing that “nothing in this chapter
prevents the court from refusing to take an action governed by this chapter if the action would
be manifestly contrary to the public policy of the United States”).
5. 11 U.S.C. § 1506 (stating that “nothing in this chapter prevents the court from refusing
to take an action governed by this chapter if the action would be manifestly contrary to the
public policy of the United States”).
6. See, e.g., In re Vitro S.A.B. de CV, 701 F.3d 1031, 1053-58 (5th Cir. 2012)
(discussing the framework for Chapter 15 and when § 1506 should be invoked); In re ABC
Learning Centres Ltd., 445 B.R. 318, 334 (Bankr. D. Del. 2010) (holding that “recognition of
the Liquidation Proceedings is not manifestly contrary to U.S. public policy and the Court will
not deny recognition under the public policy exception of § 1506”); In re Gold & Honey, Ltd.,
410 B.R. 357, 371 (Bankr. E.D.N.Y. 2009) (holding that foreign representative’s offensive
violation of the automatic stay would be manifestly contrary to the public policy of the United
States); In re Toft, 453 B.R. 186, 201 (Bankr. S.D.N.Y. 2011) (holding that “this is one of the
rare cases in which an order of recognition on the terms requested would be manifestly
contrary to U.S. public policy . . . ”).
1590 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

Chapter 15 case was not “manifestly contrary to the public policy of

the United States.”7 The few courts that have invoked the Public
Policy Exception have construed § 1506 narrowly.8 However, in a
majority of these cases, the court addressed public policy
considerations prematurely and should have declined to grant relief
based on other sections of Chapter 15.9
Consequently, US courts have invoked public policy
considerations and engaged in an analysis under § 1506 more often
than required.10 These courts have construed Chapter 15 so broadly
that they reach an analysis under § 1506 instead of relying on other
provisions of Chapter 15 to deny relief.11 This approach produces
unnecessary conclusions that the Public Policy Exception should be
invoked, has undermined the narrow circumstances under which the
Public Policy Exception should apply, and is inconsistent with the

7. See, e.g., In re Ernst & Young, 383 B.R. 773, 781 (Bankr. D. Colo. 2008) (finding no
evidence to support a holding that recognition of the foreign proceeding would produce a
result so drastically different to be manifestly contrary to public policy of the United States);
In re Metcalfe & Mansfield Alternative Investments, 421 B.R. 685, 698 (Bankr. S.D.N.Y.
2010) (concluding that Ҥ 1506 does not preclude giving comity to the Canadian Orders in this
case.”); In re Fairfield Sentry Ltd., 714 F.3d 127, 140 (2d Cir. 2013) (holding that there was no
basis on which to hold that recognition of the foreign proceeding was manifestly contrary to
US public policy); see also infra Part I.B (providing an overview of Chapter 15 and more
specifically the relief that is available to a foreign representative in a Chapter 15 case).
8. See In re Toft, 453 B.R. at 189 (holding that this case was “one of the rare cases in
which the relief sought by the Foreign Representative must be denied under § 1506 of the
Bankruptcy Code as manifestly contrary to the public policy of the United States”).
9. See Jaffe v. Samsung Elec. Co. (In re Qimonda), 737 F.3d 14 (4th Cir. 2013) (denying
relief based on application of § 1522(a) rather than to invoke an unnecessary analysis of §
1506); see also In re Vitro, 701 F.3d at 1070 (affirming the bankruptcy court decision holding
that, “because we conclude that relief is not warranted under § 1507, however, and would also
not be available under § 1521, we do not reach whether the Concurso plan would be
manifestly contrary to a fundamental public policy of the United States”).
10. See In re Qimonda, 737 F.3d at 31 (holding that the lower court’s analysis under the
public policy exception was not necessary because it could have based its decision on the
application of § 1522(a)); In re Vitro, 701 F.3d at 1070 (holding that an analysis of whether the
relief requested was manifestly contrary to the public policy of the United States was not
necessary because such relief was not warranted under § 1507 or under § 1521).
11. See In re Qimonda, 737 F.3d at 14 (holding that the lower court’s analysis under the
public policy exception was not necessary because it could have based its decision on the
application of § 1522(a)); In re Vitro, 701 F.3d at 1070 (holding that an analysis of whether the
relief requested was manifestly contrary to the public policy of the United States was not
necessary because such relief was not warranted under § 1507 or under § 1521); but see In re
Toft, 453 B.R. at 195-96 (explaining that the public policy exception should ordinarily be
resorted to only if another, more specific provision of chapter 15 does not govern the dispute).
2015] CROSS-BORDER INSOLVENCY 1591

intent the drafters of Chapter 15 had when implementing the Public

Policy Exception.12
This Comment argues that the Public Policy Exception of
Chapter 15 should be invoked only as a last resort and that, going
forward, courts should engage in an analysis of § 1506 only when no
other provision in Chapter 15 supports a decision to deny relief. To
promulgate this argument and to clarify the public policy exception
under the Model Law and Chapter 15, this Comment proceeds in
three parts. First, Part I examines various public policy exceptions
found in the law, including Article 6 of UNCITRAL’s Model Law on
Cross-Border Insolvency, nations adopting Article 6 of the Model
Law into their insolvency laws, § 1506 of the US Bankruptcy Code,
and other public policy exceptions found outside the context of
bankruptcy law. Second, Part II explores the five instances in which
US Bankruptcy Courts have invoked the Public Policy Exception of
Chapter 15. Finally, Part III discusses the United States and other
countries’ use of similar public policy exceptions, and, extrapolating
from these examples, contends that courts should rely on the Public
Policy Exception only when no other provision of Chapter 15 applies.
Using the analysis from Parts I and II, Part III establishes a
framework for Chapter 15 that US courts should follow when they are
determining whether to grant relief in a case arising under Chapter 15
of the US Bankruptcy Code.

I. PUBLIC POLICY EXCEPTIONS

Part I introduces public policy exceptions found in both
bankruptcy and non-bankruptcy law. Part I.A reviews the
UNCITRAL Model Law on Cross-Border Insolvency and provides an
overview of the Model Law, the public policy exception found in
Article 6 of the Model Law, and how other countries have adopted
this provision. Part I.B discusses the United States’ implementation of
the Model Law in Chapter 15 of the Bankruptcy Code and, more
specifically, the Public Policy Exception. Lastly, Part I.C will provide
an overview of how courts have applied public policy exceptions that
are found in laws outside of the bankruptcy context.

12. Model Law, supra note 1, at art. 6, ¶ 88 (noting that “international cooperation would
be unduly hampered if public policy would be understood in an extensive manner”); House
Report, supra note 4, at 109 (explaining that the language of § 1506 follows the Model Law
Article 6 exactly, is standard in UNCITRAL texts, and has been narrowly interpreted on a
consistent basis in courts around the world).
1592 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

A. The Model Law And Its Implementation

First, this subpart provides an overview of the Model Law,
including a discussion of the framework that it provides and the
implications of it having been drafted. Second, this subpart reviews
the public policy exception found in the Model Law and how non-US
countries have implemented the Model Law’s public policy
exception. Ultimately, this subpart seeks to provide a better
understanding of the context in which Congress was working when it
enacted Chapter 15.

1. Overview
Since the Model Law is a voluntary framework that does not
have the force of law, countries must enact legislation to give it legal
effect.13 In doing so, countries may determine when and to what
extent they wish to incorporate the terms of the Model Law in
domestic legislation.14
The Model Law intends to facilitate cooperation between courts
and insolvency representatives in different jurisdictions and also to
enable insolvency representatives to seek and obtain recognition of
their insolvency proceedings from other jurisdictions.15 It also

13. See Andre J. Berends, The Uncitral Model Law on Cross-Border Insolvency: A
Comprehensive Overview, 6 Tul. J. Int'l & Comp. L. 309, 320 (1998) (explaining that “the
Model Law is merely a recommendation, and countries are free to enact it as they wish”);
CHRISTOPHER MALLON & SHAI Y. WAISMAN, THE LAW AND PRACTICE OF RESTRUCTURING
IN THE UK AND US 441 (Christopher Mallon et al. eds., 2011); UNCITRAL Secretariat, The
UNCITRAL Model Law on Cross-Border Insolvency: the Judicial Perspective, Note by the
Secretariat, ¶9, U.N. Doc. A/CN.9/778 (July 26, 2013) [hereinafter Judicial Perspective]
(discussing the twenty States and territories, as of April 2013, that had enacted legislation
based on the Model Law: Australia (2008), British Virgin Islands; overseas territory of the
United Kingdom of Great Britain and Northern Ireland (2003), Canada (2009), Colombia
(2006), Eritrea (1998), Great Britain (2006), Japan (2000), Mauritius (2009), Mexico (2000),
Montenegro (2002), New Zealand (2006), Poland (2003), Republic of Korea (2006), Romania
(2003), Serbia (2004), Slovenia (2007), South Africa (2000), and the United States of America
(2005)).
14. Berends, supra note 13, at 320 (noting that “The Model Law was meant to serve as
an example for those countries that do not yet have legislation for the recognition of foreign
insolvency proceedings and for the countries that do have some provisions in the field of
cross-border insolvency, the Model Law can be used as an example of how to modify their
legislation.”); MALLON supra note 13, at 441(discussing that the Model Law is voluntary and
adopting nations may implement it as they choose).
15. See Jenny Clift, The UNCITRAL Model Law on Cross-Border Insolvency-A
Legislative Framework to Facilitate Coordination and Cooperation in Cross-Border
Insolvency, 12 Tul. J. Int'l & Comp. L. 307, 327 (2004) (explaining that “Chapter IV, a key
section of the Model Code, addresses cross-border cooperation. As noted in the Guide to
2015] CROSS-BORDER INSOLVENCY 1593

governs insolvency proceedings that include most debtor entities in a

number of situations.16 For example, it governs: (1) an inward-bound
request for recognition of a foreign proceeding; (2) an outward-bound
request from a court or an administrator in the State that has enacted
the Model Law for recognition of an insolvency proceeding
commenced under the laws of such State; (3) coordination of
concurrent proceedings in two or more States; and (4) participation of
foreign creditors in insolvency proceedings taking place in an
enacting State.17
The Model Law also establishes criteria for determining whether
a foreign proceeding will be recognized.18 Such a conclusion includes
determining whether the foreign proceeding should be recognized as a
main proceeding, a non-main proceeding, or neither.19 The effects of
this determination vary depending on how the foreign proceeding is
classified.20 For example, Article 20 of the Model Law provides that
upon recognition of a foreign main proceeding, certain automatic
relief ensues.21 The first relief available stays actions of individual
creditors against the debtor.22 The second relief available is a stay of

Enactment, the objective of the chapter is to enable courts and insolvency representatives
‘from two or more countries to be efficient and achieve optimal results.’”); Model Law, supra
note 1, at arts. 25-27 (discussing cooperation with foreign courts and foreign representatives).
16. See Clift, supra note 15, at 319-31 (discussing the main features of the Model Law);
see also 1-13 COLLIER ON BANKRUPTCY PART TWO ¶ IV.22 (16th ed. 2013) (giving an
overview of the main provisions of the Model Law) [hereinafter COLLIER].
17. See supra note 16 and accompanying text.
18. See Model Law, supra note 1, at art. 15-17 (discussing the “application for
recognition of a foreign proceeding,” “presumptions concerning recognition,” and the
“decision to recognize a foreign proceeding”).
19. Id. at art. 17(2) (listing when a foreign proceeding shall be recognized: “(a) as a
foreign main proceeding if it is taking place in the State where the debtor has the centre of its
main interests; or (b) as a foreign non-main proceeding if the debtor has an establishment . . .
in the foreign State.”). The determination of whether a foreign proceeding is a main-
proceeding, non-main proceeding or neither, is a highly litigated matter and is beyond the
scope of this note. For further discussion on the issue see, e.g., Morning Mist Holdings Ltd. v.
Krys (In re Fairfield Sentry Ltd.), 714 F.3d 127 (2d Cir. 2013); In re Bear Stearns High-Grade
Structured Credit Strategies Master Fund, Ltd., 374 B.R. 122 (Bankr. S.D.N.Y. 2007), aff’d,
389 B.R. 325 (S.D.N.Y. 2008); In re Tri-Continental Exchange Ltd., 349 B.R. 627 (Bankr.
E.D. Cal. 2006).
20. Compare Model Law, supra note 1, at art. 20 (discussing the automatic effects of
recognition of a foreign main proceeding), with Model Law, supra note 1, at art. 7, 21
(discussing the discretionary relief that is available after recognition of a foreign non-main
proceeding).
21. See Model Law, supra note 1, at art. 20 (discussing the effects of recognition of a
foreign main proceeding).
22. Id. (staying “commencement or continuation of individual actions or individual
proceedings concerning the debtor’s assets, rights, obligations or liabilities”).
1594 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

execution against the debtor’s assets.23 The third relief available

suspends the debtor’s right to transfer or encumber its assets.24
Additionally, Article 21 allows the court to grant discretionary
relief to protect the debtor’s assets or creditors’ interests upon
recognition of a foreign main proceeding or non-main proceeding.25
Such discretionary relief may consist of staying proceedings or
suspending the right to encumber assets, facilitating access to
information concerning the assets of the debtor and its liabilities,
appointing a person to administer all or part of those assets, as well as
any other relief that may be available under the laws of the enacting
State.26
In granting or denying relief, the court must be satisfied that the
interests of the creditors and other interested persons, including the
debtor, are adequately protected.27 The court may subject the relief
granted to conditions it considers appropriate and may modify or
terminate such relief if requested by any person affected.28 The Model
Law further recommends that local courts and insolvency
representatives cooperate with foreign courts or foreign
representatives.29

2. The Model Law’s “Public Policy Exception” and Its

Implementation
Article 6 of the Model Law provides that “nothing in this Law
prevents the court from refusing to take an action governed by this
Law if the action would be manifestly contrary to the public policy of
this State.”30 The UNCITRAL Model Law on Cross-Border
Insolvency with Guide to Enactment (“Guide to Enactment”) explains

23. Id. (staying execution against the debtor’s assets).

24. Id. (suspending the right to transfer, encumber or otherwise dispose of any assets of
the debtor).
25. Id. at art. 21 (discussing the discretionary relief that may be granted upon recognition
of a foreign proceeding).
26. Id.
27. Id. at art. 22 (requiring that the court must be satisfied that the “interests of the
creditors and other interested persons, including the debtor, are adequately protected”).
28. Id. (providing that “the court may, at the request of the foreign representative or a
person affected by relief granted under article 19 or 21, or at its own motion, modify or
terminate such relief”).
29. Id. at art. 25 (requiring the court to cooperate to the maximum extent possible with
foreign courts or foreign representatives, either directly or indirectly through a third party).
30. Id. at art. 6 (allowing the court to refuse to take an action governed by this Law if the
action would be manifestly contrary to the public policy of the State).
2015] CROSS-BORDER INSOLVENCY 1595

that Article 6 does not attempt to define public policy because the
notion of public policy is grounded in national law and may differ
from State to State.31 The Guide to Enactment also distinguishes
between two different concepts of public policy.32 It notes that a
growing number of jurisdictions recognize a dichotomy between the
notion of public policy as it applies to domestic affairs and the notion
of public policy as it is used in matters of international cooperation
and recognition of foreign laws.33 The Guide to Enactment notes that
international public policy is understood more restrictively than
domestic public policy, which reflects the understanding that broadly
defining international public policy would hamper international
cooperation.34
Furthermore, the Guide to Enactment emphasizes that the
purpose of the term “manifestly,” which is used in many other
international legal texts as a qualifier of the expression “public
policy,” is to emphasize that public policy exceptions should be
interpreted restrictively and that Article 6 may be invoked only in
exceptional circumstances concerning matters of fundamental
importance to the enacting State.35 States adopting the Model Law
have implemented the public policy exception of Article 6 in three
ways: (i) adopting the language of Article 6 of the Model Law, (ii)
enacting a version of Article 6 that omitted the word “manifestly” in
their public policy exception, or (iii) adopting a different, yet related,
provision.36

i. Nations adopting the language of Article 6 verbatim

Australia, Colombia, England, Mauritius, New Zealand, and
South Africa have adopted Article 6 into their insolvency laws
verbatim.37 These nations rely on the term “manifestly” to emphasize

31. Id. at ¶ 86 (noting that no uniform definition of public policy exists because the
notion of public policy is grounded in national law and may differ from State to State).
32. Id. at ¶ 88 (noting that a growing number of jurisdictions recognize a dichotomy
between the notion of public policy as it applies to domestic affairs and as it is applies to
international affairs—which is interpreted more restrictively than domestic public policy).
33. Id.
34. Id.
35. Id.
36. See infra Part I.A(2)(i) through Part I.A(2)(iii) (discussing the various ways nations
have implemented Article 6 of the Model Law into their domestic legislation).
37. Cross-Border Insolvency Act 2008 (Cth) at art. 6 (allowing the court to refuse “to
take an action governed by the present Law if the action would be manifestly contrary to the
public policy of this State”); Cross-Border Insolvency Regulations 2006 at art. 6 (allowing
1596 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

that the public policy exception should be interpreted narrowly.38 It is

also their intention that the public policy exception be invoked only
under exceptional circumstances that concern matters of fundamental
importance.39

ii. Nations excluding the word “manifestly”

The British Virgin Islands, Canada, Greece, Mexico, Serbia,
Montenegro, and South Korea have adopted legislation guided by
Article 6 of the Model Law, but have omitted the word
“manifestly.”40 Omission of the word “manifestly” in these cases does
not correspond to any intention on the part of the legislatures to depart
from the Model Law; rather, it constitutes a semantic decision to

“the court from refusing to take an action governed by this Law if the action would be
manifestly contrary to the public policy of Great Britain or any part of it); Insolvency Act 2009
at Ninth Schedule, at art. 6(1) (permitting “the Supreme Court from refusing to take an action
governed by this Schedule if the action would be manifestly contrary to the public policy of
Mauritius”); Insolvency (Cross-Border) Act 2006 at art. 392(2) (allowing “the High Court
from refusing to take an action governed by this Schedule if the action would be manifestly
contrary to the public policy of New Zealand”); Cross-Border Insolvency Act (42/2000) at § 6
(permitting the court to refuse to “take an action governed by this Act if the action would be
manifestly contrary to the public policy of the Republic”).
38. See CROSS-BORDER INSOLVENCY, supra note 1, at 25, 123, 177, 298, 352-53, 405
(discussing the implementation of the Article 6 of the Model law into various nations
insolvency laws); see also, supra note 37 and accompanying text (discussing the nations
adopting the Model Law verbatim and the language used by each nation when implementing
Article 6 of the Model Law into their insolvency laws).
39. See supra note 38 and accompanying text.
40. Insolvency Act 2003 at § 439 (permitting “the Court [to refuse] to take an action
governed by this Part if the action would be contrary to the public policy of the Virgin
Islands”); Companies’ Creditors Arrangement Act (RSC 1985, C-35, as amended) at Part IV,
Section 61(2) (allowing the court to refuse “to do something that would be contrary to public
policy.”); Greek Law 3858/2010 at Chapter A, art. 6 (permitting the court to “refuse to take an
action provided for in this law, if the action is contrary to the public policy”); Commercial
Insolvency Laws at Title XII, art. 283 (providing that “nothing in this title shall be interpreted
in a manner contrary to the provisions of Titles I through XIII, or in any manner that would be
contrary to the fundamental principles of Mexican law. Consequently, the court, the [Federal
Institute of Specialists in Commercial Insolvencies], the visitor, the conciliator and the receiver
shall refuse to take any action that is contrary to the provisions of said titles or violates public
policy.”); Official Gazette of the Republic of Serbia 104/2009 at Chapter XII, art.179
(allowing the court to refuse “to take an action governed by this law if the action would be
contrary to the public policy of Serbia”); Debtor Rehabilitation and Bankruptcy Act at Chapter
5, art. 632(2)(3) (requiring the court to “dismiss the petition in the event . . . recognizing the
foreign bankruptcy proceeding is contrary to the public policy of the Republic of Korea”); see
also CROSS-BORDER INSOLVENCY, supra note 1, at 25, 123, 177, 298, 405 (discussing the
implementation of the Article 6 of the Model law into various nations’ insolvency laws and
each nations’ intent when doing so).
2015] CROSS-BORDER INSOLVENCY 1597

remove all adjectives and adverbs from legislation.41 These nations’

laws distinguish between typical domestic public policy and less
restrictive international public policy.42 As a result, they do not
demand the same level of public policy compliance from a foreign
proceeding as they would from a domestic proceeding.43 In other
words, a foreign contract that would normally be void in the interest
of “domestic” public policy might be enforced out of international
comity concerns.44

iii. Nations adopting a similar provision

When the Cayman Islands overhauled its cross-border
insolvency legislation in 2009 by inserting international cooperation
provisions in Part XVII of its insolvency laws, it elected to adopt a
public policy exception that differed from that of the Model Law.45

41. Compare supra note 40 and accompanying text (discussing nations choosing Article
6 of the Model Law but removing all adjectives and adverbs from their legislation), with supra
note 37 and accompanying text (discussing nations choosing Article 6 of the Model Law
verbatim, with Model Law, supra note 1, Art. 6 (providing that “nothing in this Law prevents
the court from refusing to take an action governed by this Law if the action would be
manifestly contrary to the public policy of this State”). See also, CROSS-BORDER
INSOLVENCY, supra note 1, at 25, 123, 177, 298, 405 (discussing the implementation of the
Article 6 of the Model law into various nations’ insolvency laws and each nation’s intent when
doing so).
42. See Model Law, supra note 1, ¶ 88 (recognizing the trend of distinguishing domestic
and international standards of public policy in a “growing number of jurisdictions”); see also
Berends, supra note 13, at 336 (discussing the different standards between a nations domestic
and international public policy).
43. See Berends, supra note 13, at 336 (discussing the different standards between a
nations domestic and international public policy); see also Model Law, supra note 1, at ¶ 88
(noting that a growing number of jurisdictions recognize a dichotomy between the notion of
public policy as it applies to domestic affairs and as it is applies to international affairs—which
is interpreted more restrictively than domestic public policy).
44. See supra note 43 and accompanying text.
45. See Cayman Islands, Companies Law, Part XVII, § 241 (providing that the Cayman
Islands court may make orders ancillary to a foreign bankruptcy proceeding for the purposes
of: (a) recognizing the rights of foreign representative to act in the Cayman Islands on behalf
of a foreign debtor; (b) granting a stay on commencement or continuation of legal proceedings
and the enforcement of judgments against a debtor; (c) permitting the foreign representative to
examine any person in possession of information relating to the debtor and requiring the
production of documents to the foreign representative; (d) ordering the turnover to a foreign
representative of any property belonging to a debtor); Cayman Islands, Companies Law, Part
XVII, § 242 (providing that in deciding whether to make an ancillary order, the court will be
guided by matters which will best assure an economic and expeditious administration of the
debtor’s estate consistent with: (a) the just treatment of all claimants in a debtor’s estate
wherever they may be domiciled; (b) the protection of Cayman Islands incorporated claimants
against prejudice and inconvenience in the processing of claims in the foreign bankruptcy
1598 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

Rather, § 242 of the Cayman Islands Companies Law sets out the
factors that the Grand Court of the Cayman Islands will consider in
determining whether to make ancillary orders upon application by a
foreign representative, which mirrors the language used in the former
§ 304 of the US Bankruptcy Code.46 US case law described § 304 as,
fundamentally, a statutory mechanism to which US courts could defer
when facilitating foreign insolvency proceedings and construing the
enumerated considerations.47 This mechanism is identical to those set
out in § 242 of the Cayman Islands Companies Law as guidelines
designed to give the court maximum flexibility in handling ancillary
cases.48 The language of § 242 and that of former § 304, emphasize
comity and judicial flexibility.49
Other nations, such as Japan and Poland, have adopted Article 6
of the Model Law by using the term “public order” or “public peace”
rather than “public policy” to describe the limited circumstances
under which actions might by circumscribed under this section.50 The

proceeding; (c) the prevention of preferential or fraudulent dispositions of property comprised

in the debtor’s estate; (d) the distribution of the debtor’s estate amongst creditors substantially
in accordance with the priorities set out in the Law; (e) the recognition and enforcement of the
interests of secured creditors; (f) the non-enforcement of foreign taxes, fines and penalties; and
(g) comity).
46. Compare supra note 45 and accompanying text (discussing Cayman Islands,
Companies Law, Part XVII, which sets out express provisions dealing with international
cooperation and the manner in which the Cayman Islands courts can give statutory assistance
to foreign representatives), with 11 U.S.C. § 304 (2000) (repealed by Pub.L. 109–8. Title VIII,
§ 802(d)(3) (2005) (providing that “In determining whether to grant relief under subsection (b)
of this section, the court shall be guided by what will best assure an economical and
expeditious administration of such estate, consistent with—(1) just treatment of all holders of
claims against or interests in such estate; (2) protection of claim holders in the United States
against prejudice and inconvenience in the processing of claims in such foreign proceeding;
(3) prevention of preferential or fraudulent dispositions of property of such estate; (4)
distribution of proceeds of such estate substantially in accordance with the order prescribed by
this title; (5) comity; and (6) if appropriate, the provision of an opportunity for a fresh start for
the individual that such foreign proceeding concerns.”).
47. See In re Treco, 240 F.3d 148, 156 (2d Cir. 2001) (describing § 304(c) as requiring a
case-specific exercise of discretion in light of all of the circumstances); see also In re Culmer,
25 B.R. 621, 628 (Bankr. S.D.N.Y. 1982) (explaining that § 304 articulates the flexibility
available to a court in applying these factors to the specific circumstances in each case in order
to arrive at a fair result).
48. See supra note 47 and accompanying text.
49. See In re Schimmelpennic, 183 F.3d 347, 365 (5th Cir. 1999) (explaining that § 304
is intended to arm the courts with maximum flexibility in light of principles of international
comity and respect for the laws of foreign nations and comparing § 304's grant of judicial
authority as tantamount to the power to mold relief in near blank check fashion).
50. Law on Recognition of and Assistance in Foreign Insolvency Proceedings at art.
21(3) (requiring a court to dismiss a petition for recognition of a foreign insolvency proceeding
2015] CROSS-BORDER INSOLVENCY 1599

term “public order” is commonly found in the domestic private

international law of many States, most notably in civil law
countries.51 In this context, the term refers to the many exceptions that
enable a court to refuse to recognize or enforce a judgment, or apply
foreign law to a pending proceeding, on the grounds that the judgment
or law conflicts with a more fundamental policy of the forum court.52
Similarly, the French concept of “ordre public,” which parallels the
idea of “public order” or “public policy” under United States common
law, is one example of the rules enacted by States to protect the
fundamental values of their society.53 Although States vary in the
breadth and depth of the limits of their “public order” rules, courts
generally take a restrictive approach when reviewing these rules and
typically find that only those rules that protect a State’s most
fundamental values satisfy the standard of public order.54

“if the assistance measures . . . are against public order and good public morals in Japan.”);
Bankruptcy and Recovery Act at Chapter I, art. 392 (requiring that cross-border bankruptcy
proceedings not be recognized if: “1) it concerns a case which does not belong to the exclusive
jurisdiction of Polish courts; 2) the recognition is not contrary to the basic rules of the legal
order in the Republic of Poland.”); Title III of Law 1116 at art. 91 (permitting the “competent
Colombian authorities from denying adoption of a measure manifestly opposed to the public
peace in the Republic of Colombia”) (official English translation of Law 1116 is available at
http://www.supersociedades.gov.co/superintendencia/normatividad/law-1116-of-2006-English
/Documents/LAW%201116%20of%202006.pdf).
51. See ALEX MILLS, THE CONFLUENCE OF PUBLIC AND PRIVATE INTERNATIONAL
LAW: JUSTICE, PLURALISM AND SUBSIDIARITY IN THE INTERNATIONAL CONSTITUTIONAL
ORDERING OF PRIVATE LAW 190 (2009) (discussing the meaning of “public order” in private
international law); see also Alex Mills, The Dimensions of Public Policy in Private
International Law, 4 J. Private Int’l L. 201 (2008) (explaining the meaning of “public order” in
private international law).
52. See Barnali Choudhury, Exception Provisions as a Gateway to Incorporating Human
Rights Issues into Inter-national Investment Agreements, 49 COLUM. J. TRANSNAT’L L. 670,
690 (2011) (discussing the term public order and how it is commonly found in the domestic
law of many states, most notably in civil law countries); see also THE CONFLUENCE OF
PUBLIC AND PRIVATE INTERNATIONAL LAW, supra note 51, at 190 (2009) (discussing the
meaning of “public order” or public policy in civil law countries).
53. See Choudhury, supra note 52, at 690 (describing the concept of “ordre public,”
under French law, which parallels the idea of “public order” or “public policy” under the
common law and reflects the rules enacted by states to protect the fundamental values of their
society); Catherine Kessedjian, Public Order in European Law, 1 ERASMUS L. REV. 26 (2007)
(discussing the French expression “ordre public” which is translated into English as either
“public policy” or “public order”).
54. See Krombach v. Bamberski (2000), ECR I-1935, Case C-7/98 at 32-3 (emphasizing
that public policy must be subject to a restrictive interpretation); see also THE CONFLUENCE OF
PUBLIC AND PRIVATE INTERNATIONAL LAW, supra note 51, at 195 (discussing the restrictive
approach courts use in regards to “public order”).
1600 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

A number of Polish cases refer to the concept of a public policy

exception.55 In one ruling, the Polish Supreme Court held that
examining whether the recognition of a foreign proceeding is contrary
to the basic principles of legal order in Poland would not be
understood as a requirement that foreign proceedings must be entirely
consistent with all Polish and foreign legislation.56 Instead, the court
held that the concept of a public order exception requires only that
foreign proceedings be consistent with the basic principles of legal
order.57 If, however, the recognition of a foreign proceeding is
contrary to the basic principles of legal order, a Polish court may
refuse to recognize the proceeding if the contradiction is obvious.58
Polish case law additionally observes that the public order exception
is not an opportunity to substantively review the foreign court’s ruling
because such review lies outside the scope of the Polish court’s
authority.59

B. Chapter 15 of the United States Bankruptcy Code

Part I.B provides an overview of Chapter 15 of the US
Bankruptcy Code and introduces the Public Policy Exception. First,
this subpart provides an overview of the relief available under
Chapter 15 and the framework for providing such relief. Next, it
examines the Public Policy Exception of Chapter 15 and how some

55. CROSS-BORDER INSOLVENCY, supra note 1, at 353 (citing Polish Supreme Court in
ruling dated April 21 1978, IV CR 65/78, OSNCP 1979, No 1, sec 12 and Polish Supreme
Court in ruling dated February 16, 2011, II CSK 541/10, unpublished); Michael Barlowski,
French Reorganization Proceedings Recognized in Poland under the EU’s Insolvency
Regulation, WORLD SERVICES GROUP (Aug. 2012), http://www.worldservicesgroup.com/
publications.asp?action=article&artid=4721 (noting that “such inconsistencies would have to
strike at the foundations of Polish public policy and be obvious in nature (citing Supreme
Court of Poland order of 21 April 1978, Case No. IV CR 65/78, published at OSNCP 1979,
No. 1 item 12)”).
56. See supra note 55 and accompanying text.
57. See supra note 55 and accompanying text.
58. See CROSS-BORDER INSOLVENCY, supra note 1, at 353 (citing Polish Supreme Court
in ruling dated February 16, 2011, II CSK 406/10, unpublished); see also Barlowski, supra
note 55. (noting that “such inconsistencies would have to strike at the foundations of Polish
public policy and be obvious in nature (citing Supreme Court of Poland order of 21 April
1978, Case No. IV CR 65/78, published at OSNCP 1979, No. 1 item 12)”).
59. See CROSS-BORDER INSOLVENCY, supra note 1, at 353 (citing Polish Supreme Court
in ruling dated November 5, 1975, I CR 625/75, OSNCP 1976, No 10, § 215; Polish Supreme
Court in ruling dated April 21, 1978, IV CR 65/78, OSNCP 1979, No 1, § 12; Supreme Court
in ruling dated May 7, 1980, IV CR 116/80, OSNC 1980, No 11, § 220; and Polish Supreme
Court in ruling dated February 16, 2011, II CSK 425/10, unpublished).
2015] CROSS-BORDER INSOLVENCY 1601

US courts have interpreted this section. Finally, it examines the

framework of Chapter 15 and how § 1506 fits within that framework.

1. Overview
The US Congress listed five specific objectives when enacting
Chapter 15.60 The first was to encourage cooperation between US
courts and other authorities of foreign countries involved in cross-
border cases.61 The second was to increase “legal certainty for trade
and investment.”62 The third was to promote the “fair and efficient
administration of cross-border insolvencies” so as to “protect the
interests of all creditors and other interested entities, including the
debtor.”63 The fourth objective was to protect and maximize the value
of the debtor’s assets.64 The final objective was to facilitate the rescue
of financially troubled businesses.65
Section 1508 provides that the provisions of Chapter 15 shall be
interpreted by considering their 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.66
Comity considerations are explicitly included in the introduction to §§
1507 and 1509(b)(3), further indicating that a Chapter 15 court “shall
grant comity or cooperation to the foreign representative” of a foreign
proceeding.67

60. See 11 U.S.C. § 1501 (discussing the purpose and scope of application of Chapter
15).
61. See id. at § 1501(a)(1)(B) (discussing the objective of cooperation between “the
courts and other competent authorities of foreign countries involved in cross-border insolvency
cases”).
62. See id. at § 1501(a)(2) (listing the objective of “greater legal certainty for trade and
investment”).
63. See id. at § 1501(a)(3) (listing the objective of “fair and efficient administration of
cross-border insolvencies that protects the interests of all creditors, and other interested
entities, including the debtor”).
64. See id. at § 1501(a)(4) (listing the objective of “protection and maximization of the
value of the debtor’s assets”).
65. See id. at § 1501(a)(5) (listing the objective of “facilitation of the rescue of
financially troubled businesses, thereby protecting investment and preserving employment”).
66. See id. at § 1508 (requiring the court, when interpreting chapter 15, to “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”).
67. See id. at § 1509(b)(3) (requiring that upon “recognition under section 1517 . . . a
court in the United States shall grant comity or cooperation to the foreign representative”); see
also 11 U.S.C. § 1507(b) (providing that “[i]n determining whether to provide additional
assistance under this title or under other laws of the United States, the court shall consider
whether such additional assistance, consistent with the principles of comity, will reasonably
1602 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

Chapter 15 authorizes foreign representatives to commence a

case in a US bankruptcy court by filing a petition for recognition of
the foreign proceeding.68 If the petition meets the requirements
embodied in § 1517, the court must enter an order granting
recognition of the foreign proceeding.69 If that foreign proceeding is
pending in the country where the debtor has the center of its main
interests, it is recognized as a “foreign main proceeding.”70
Section 1519 of the Bankruptcy Code provides a vehicle for the
entry of relief that may be necessary during the gap period between
the filing of a petition for recognition and the court’s decision on the
petition.71 Section 1519 is limited to relief that is urgently needed to
protect the assets of the debtor or the interest of the creditors, and that
is provisional or temporary in nature.72 The relief would terminate
when the petition for recognition is granted, unless the court
specifically extends it under § 1521(a)(6).73 Upon the entry of an
order recognizing a foreign main proceeding, § 1520 provides
automatic relief, including an automatic stay and the ability to operate
the debtor’s business within the United States.74

assure . . . ”); see also In re Vitro S.A.B. de CV, 701 F.3d 1031, 1044 (5th Cir. 2012) cert.
dismissed, 133 S. Ct. 1862, 185 L. Ed. 2d 862 (2013) (holding that within the context of
Chapter 15, comity is raised to a principal objective).
68. 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.”); 11 U.S.C. § 101(24) (“The term ‘foreign representative’ means a person or
body, including a person or body appointed on an interim basis, authorized in a foreign
proceeding to administer the reorganization or the liquidation of the debtor's assets or affairs or
to act as a representative of such foreign proceeding.”).
69. See 11 U.S.C. § 1517 (listing the requirements that must be satisfied for an order
recognizing a foreign proceeding to be entered).
70. See id. at § 1517(b)(1) (requiring that a foreign proceeding be recognized “as a
foreign main proceeding if it is pending in the country where the debtor has the center of its
main interests”); 11 U.S.C. § 1502(4) (“‘Foreign main proceeding’ means a foreign proceeding
pending in the country where the debtor has the center of its main interests.”).
71. See id. at § 1519(a) (permitting the court, “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”).
72. See id.
73. See id. at § 1519(b); 11 U.S.C. § 1521(a)(6) (providing that the court may grant “any
appropriate relief, including . . . extending relief granted under section 1519(a)”).
74. See 11 U.S.C. § 1520(a)(1)-(4) (“Upon recognition of a foreign proceeding that is a
foreign main proceeding—(1) sections 361 and 362 apply with respect to the debtor and the
property of the debtor that is within the territorial jurisdiction of the United States; (2) sections
363, 549, and 552 apply to a transfer of an interest of the debtor in property that is within the
territorial jurisdiction of the United States to the same extent that the sections would apply to
property of an estate; (3) unless the court orders otherwise, the foreign representative may
operate the debtor’s business and may exercise the rights and powers of a trustee under and to
2015] CROSS-BORDER INSOLVENCY 1603

A bankruptcy court is also empowered under § 1521(a) to grant

any appropriate relief necessary to effectuate the purpose of Chapter
15 and to protect the assets of the debtor or the interests of the
creditors.75 Section 1521(a)(1)-(7) provides a non-exhaustive list of
the relief available under § 1521(a). Section 1521(a) allows the court
to entrust the distribution of all or part of the debtor’s assets located in
the United States to the foreign representative.76 The bankruptcy
court, however, may only grant discretionary relief under § 1521 if it
determines that the interests of the creditors and other interested
entities, including the debtor, are sufficiently protected.77
Additionally, § 1507(a) gives a court authority to provide “additional
assistance,” subject to other limitations in Chapter 15 and § 1507(b).78
Finally, all of the actions authorized in Chapter 15 are subject to
§ 1506.79 This section provides that “[n]othing in this chapter
prevents the court from refusing to take an action governed by this
chapter if the action would be manifestly contrary to the public policy
of the United States.”80

the extent provided by sections 363 and 552; and (4) section 552 applies to property of the
debtor that is within the territorial jurisdiction of the United States.”); 11 U.S.C. § 1520(b)
(“Subsection (a) does not affect the right to commence an individual action or proceeding in a
foreign country to the extent necessary to preserve a claim against the debtor.”).
75. See 11 U.S.C. § 1521(a) (allowing the court, upon recognition of a foreign
proceeding, to grant any appropriate relief).
76. See id. (stating that the court may grant “any appropriate relief,” including, but not
limited to, seven different specific types of relief).
77. 11 U.S.C. § 1522(a) (“The court may grant relief under section 1519 or 1521, or may
modify or terminate relief under subsection (c), only if the interests of the creditors and other
interested entities, including the debtor, are sufficiently protected.”); see 11 U.S.C. § 1521(b)
(permitting the court to, “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, including an examiner, authorized by the court, provided that the court is
satisfied that the interests of creditors in the United States are sufficiently protected”).
78. See In re Vitro S.A.B. de CV, 701 F.3d 1031, 1045 (5th Cir. 2012) (discussing the
limitations of 11 U.S.C. § 1507); 11 U.S.C. § 1507(b) provides that “in determining whether to
provide additional assistance under this title or under other laws of the United States, the court
shall consider whether such additional assistance, consistent with the principles of comity, will
reasonably assure—(1) just treatment of all holders of claims against or interests in the
debtor’s property; (2) protection of claim holders in the United States against prejudice and
inconvenience in the processing of claims in such foreign proceeding; (3) prevention of
preferential or fraudulent dispositions of property of the debtor; (4) distribution of proceeds of
the debtor’s property substantially in accordance with the order prescribed by this title; and (5)
if appropriate, the provision of an opportunity for a fresh start for the individual that such
foreign proceeding concerns”).
79. See Jaffe v. Samsung Elec. Co. (In re Qimonda), 737 F.3d 14 (4th Cir. 2013)
(discussing the framework of Chapter 15 and how 11 U.S.C. § 1506 fits in).
80. See 11 U.S.C. § 1506 (implementing article 6 of the Model Law into Chapter 15).
1604 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

2. Interpreting Section 1506

The starting point for statutory interpretation of the provisions of
Chapter 15 is the plain meaning of its words.81 The House Committee
Report guides this interpretation.82 The House Committee Report
recognizes that the language of § 1506 follows exactly Article 6 of the
Model Law, is standard in UNCITRAL texts, and has been narrowly
interpreted on a consistent basis.83 Additionally, the House
Committee Report indicates that any use of the public policy
exception is restricted to protect only the most fundamental policies.84
Since the enactment of Chapter 15, US courts construing § 1506
have continued to emphasize the narrowness of the Public Policy
Exception.85 The Public Policy Exception is applied only under
exceptional circumstances concerning matters of fundamental
importance to the United States.86 For example, one court has held
that the inability to have a jury trial in Canada when one would have
had the right to one in the United States does not invoke § 1506.87
Additionally, the fact that certain US creditors received less in a
foreign proceeding than what they could have received from a US
court is not considered manifestly contrary to the public policy of the
United States.88 The recognition of an order or automatic stay, where

81. In re Elpida Memory, Inc., No. 12-10947 CSS, 2012 WL 6090194, at *5 (Bankr. D.
Del. Nov. 20, 2012) (“[when] interpreting a statute, the Court must start with an analysis of its
plain meaning”).
82. See House Report, supra note 4, at 85 (2005) (providing legislative history of
Chapter 15); see also Jay Lawrence Westbrook, Chapter 15 At Last, 79 AM. BANKR. L.J. 713,
719 (2005) (stating that “the most important source of authoritative interpretation of Chapter
15 is the House Committee Report”).
83. House Report, supra note 4, at 109 (stating that the language section 1506 “follows
the Model Law article 5 exactly, is standard in UNCITRAL texts, and has been narrowly
interpreted on a consistent basis in courts around the world”).
84. See id. (explaining that “the word ‘manifestly’ in international usage restricts the
public policy exception to the most fundamental policies of the United States”).
85. See, e.g., In re Ernst & Young, Inc., 383 B.R. 773, 781 (Bankr. D. Colo. 2008)
(requiring that the public policy exception be applied narrowly).
86. See id. (stating that the public policy exception “should be invoked only when the
most fundamental policies of the United States are at risk”).
87. In re RSM Richter Inc. v. Aguilar (In re Ephedra Prod. Liab. Litig.), 349 B.R. 333,
335-36 (S.D.N.Y. 2006) (holding that “neither section 1506 nor any other law prevents a
United States court from giving recognition and enforcement of a foreign insolvency
procedure for liquidating claims simply because the procedure alone does not include a right to
a jury . . . ”).
88. In re Ernst & Young, Inc., 383 B.R. at 781 (finding the public policy argument
unpersuasive because there was no evidence to support a finding that the foreign proceeding
2015] CROSS-BORDER INSOLVENCY 1605

the debtor may have received protections beyond what debtors in US

bankruptcy proceedings would have received, is also not manifestly
contrary to US public policy.89
In addition, the sealing of court files by a foreign court that
provided protection broader than would be permissible under US law
is not manifestly contrary to US public policy.90 Furthermore,
although a US trustee in a bankruptcy proceeding would be required
to be “disinterested” within the meaning of 11 U.S.C. § 327, a conflict
of interest held by a foreign representative is not considered to be
manifestly contrary to the public policies of the United States.91
Finally, one US bankruptcy court’s order of protection for non-debtor
affiliates, in excess of what US law would have been authorized to
grant, is not considered manifestly contrary to the public policies of
the United States.92
These decisions tend to support the contention that the fact that
application of foreign law leads to a different result than US law,
alone, is insufficient to support § 1506 protection.93 Rather, in
determining whether to apply § 1506 courts have focused on two
factors.94 The first is whether the foreign proceeding was procedurally
unfair.95 The second factor requires courts to examine whether the
application of foreign law or the recognition of a foreign main
proceeding under Chapter 15 would severely impinge the value and

would produce “a result so drastically different to be ‘manifestly contrary’ to United States

public policy”).
89. In re ABC Learning Ctr. Ltd., 445 B.R. 318, 336 (Bankr. D. Del 2010) (finding that
“recognition of the Liquidation Proceedings is not manifestly contrary to U.S. public policy
and the Court will not deny recognition under the public policy exception of § 1506”).
90. In re Fairfield Sentry Ltd., 714 F.3d 127, 140 (2d Cir. 2013) (holding that
recognition of the British Virgin Islands (BVI) liquidation was not manifestly contrary to US
public policy).
91. In re British American Isle of Venice (BVI), Ltd., 441 B.R. 713, 718 (Bankr. S.D.
Fla. 2010) (holding that provisions of chapter 15 other than section 1506, including section
1522, allow the court to tailor relief to protect everybody’s interests in the BVI Proceeding and
that as a result section 1506 was not triggered).
92. In re Cozumel Caribe, S.A. de C.V., 482 B.R. 96, 116-17 (Bankr. S.D.N.Y. 2012)
(holding that the stay relief sought by the Foreign Representative is not manifestly contrary to
public policy”).
93. In re Qimonda AG Bankr. Litig., 433 B.R. 547, 567 (E.D. Va. 2010) (noting that
application of foreign law leading to a different result than application of US law is, without
more, is insufficient to support § 1506 protection).
94. Id. (explaining that “in deciding whether to apply § 1506, courts have focused on two
factors” (citing In re Gold & Honey, 410 B.R. at 372)).
95. Id. (stating that the first factor courts have focused on is whether the foreign
proceeding was procedurally unfair).
1606 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

import of a US statutory or constitutional right, and that granting

comity would hinder the ability of US bankruptcy courts to carry out
fundamental policies and purposes pursuant to these rights.96

C. Courts’ Interpretations of Public Policy Exceptions Outside of

Bankruptcy Law
Part I.C examines various public policy exceptions found outside
of bankruptcy law. Specifically, it examines (1) the public policy
exception found in enforcement of judgment cases, (2) the public
policy exception found in international arbitration, and (3) the public
policy exception found in non-bankruptcy US common law. This
subpart will provide further background and context in analyzing how
the Model Law and Chapter 15 interact with public policy exceptions
under Article 6 of the Model Law and § 1506 of the Bankruptcy
Code.

1. The Public Policy Exception in Enforcement of Judgment

Cases
The public policy exception in private international law has been
described as a “safety valve” that allows courts to refuse recognition
of a foreign judgment where enforcement conflicts with the forum
State’s fundamental concepts of justice.97 Article 27 of the European
Communities Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters (“Brussels Convention”)
provides that each of the contracting States has the right to refuse
recognition of a judgment if such recognition is contrary to public
policy in the State in which recognition is sought. 98

96. Id. (stating that the second factor courts have focused on is “whether the application
of foreign law or the recognition of a foreign main proceeding under Chapter 15 would
severely impinge the value and import of a U.S. statutory or constitutional right, such that
granting comity would severely hinder United States bankruptcy courts abilities to carry out
the most fundamental policies and purposes” of these rights” (citing In re Gold & Honey, 410
B.R. at 372)) (internal quotations omitted).
97. See Felix D. Strebel, The Enforcement of Foreign Judgments and Foreign Public
Law, 21 Loy. L.A. Int’l & Comp. L. J. 55, 66 (1999) (describing the public policy exception in
private international law “as a ‘safety valve’ that allows courts to refuse recognition of a
foreign judgment where enforcement conflicts with the forum state's fundamental concepts of
justice”); ROBERT J. SHARPE, THE ENFORCEMENT OF FOREIGN JUDGMENTS, IN DEBTOR-
CREDITOR LAW: PRACTICE AND DOCTRINE 685 (M.S. Springman & E. Gertner eds., 1985)
(describing the public policy exception in private international law as a “safety valve”).
98. European Communities Convention on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters, Sept. 27, 1968, 1972 O.J. (L 299) 32, reprinted in
2015] CROSS-BORDER INSOLVENCY 1607

The European Court of Justice (“ECJ”) has consistently refused

to apply this public policy exception in cases where: (i) objection to
the enforcement of a foreign judgment is founded upon the original
court’s exercise of jurisdiction, (ii) the original court has applied a
law that differs from the law that the enforcing court would have
applied, and (iii) there are defects in the substance of the original
court’s judgment.99 The ECJ has consistently applied the public
policy exception to deny enforcement of foreign judgments where: (i)
the foreign court’s decision would have led to a result or order that
was incompatible or contrary to the Brussels Convention or (ii) the
foreign court’s summons to the defendant did not constitute adequate
notice under that nation’s law.100 In sum, although the ECJ has relied
on the Brussels Convention’s public policy exception to deny
enforcement of foreign judgments, it has done so only in limited
situations.

2. The Public Policy Exception in International Arbitration

The Convention on the Recognition and Enforcement of Foreign
Arbitral Awards, also known as the New York Convention, was
adopted by a United Nations diplomatic conference and requires
courts of contracting States to give effect to private arbitration
agreements and to recognize and enforce arbitration awards made in
other contracting States, subject to a few exceptions.101 The most

8 I.L.M. 229, amended by Convention on Accession to the Convention on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters, Oct. 9, 1978, 1978 O.J. (L304) 1,
reprinted in 18 I.L.M. 21 [hereinafter Brussels Convention] (requiring that a judgment not be
recognized if such recognition is contrary to public policy in the State in which recognition is
sought).
99. Karen E. Minehan, The Public Policy Exception to the Enforcment of Foreign
Judgments: Necessary or Nemesis, 18 LOY. L.A. INT’L & COMP. L.J. 795, 809-13 (1996)
(stating that limited scope of the public policy exception ensures that enforcing court cannot
invoke its public policy on grounds that judgment was erroneous on the merits, whether in the
ascertainment of facts or determination or application of law and also discussing the holdings
of various ECJ Decisions analyzing public policy exceptions); D. LASOK & P.A. STONE,
CONFLICT OF LAWS IN THE EUROPEAN COMMUNITY 299 (1987) (discussing the ECJ’s
application of public policy exceptions).
100. See Minehan, supra note 99, at 813 (discussing ECJ Case 145/86, Hoffman v.
Krieg, 1988 E.C.R. 645, (1989) 2 CEC (CCH) 494 (1988) and ECJ Case 228/81, Pendy Plastic
Products B.V. v. Pluspunkt Handelsgesellschaft mbH, 1982 E.C.R. 2723, (1981-1983 Transfer
Binder) Common Mkt. Rep. (CCH) ¶ 8853 (July 15, 1982)); ULRICH MAGNUS & PETER
MANKOWSKI, BRUSSELS I REGULATION 596-98 (2007) (discussing ECJ Case 145/86,
Hoffman v. Krieg, 1988 E.C.R. 645, (1989) 2 CEC (CCH) 494 (1988)).
101. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June
10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 [hereinafter New York Convention].
1608 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

relevant exception is contained in Article V(2)(b), which provides that

recognition and enforcement of an award may be refused if “the
recognition or enforcement would be contrary to the public policy of
that country.”102
Although at first glance this provision would appear to grant
courts wide latitude in protecting mandatory public law rules, courts
all over the world have construed it narrowly, defining public policy
as limited to “the forum State's most basic notions of morality and
justice.”103 In practice, courts rarely accept public policy as
justification for refusing to recognize or enforce a judgment.104 If the
exception is to be applied, the public policy must be “well defined
and dominant, and is to be ascertained by reference to the laws and
legal precedents and not from general considerations of supposed
public interests.”105
The broad range of jurisprudence on the issue confirms that
courts have abided by this narrow interpretation.106 For example, an

102. New York Convention, supra note 101, at art. V(2)(b) (providing that recognition
and enforcement of an award may be refused if “the recognition or enforcement would be
contrary to the public policy of that country”); see Mitsubishi Motors Corp. v. Soler Chrysler
Plymouth, Inc., 473 U.S. 624, 638 (1985) (recognizing that under art. V(2)(b) the “Convention
reserves to each signatory country the right to refuse enforcement of an award”).
103. See Parsons & Whittemore Overseas Co. v. Société Générate de l'Industrie du
Papier, 508 F.2d 969, 974 (2d Cir. 1974) (citing RESTATEMENT (SECOND) OF THE CONFLICT
OF LAWS § 117, cmt. c, at 340 (1971); Loucks v. Standard Oil Co., 224 N.Y. 99, 111, 120 N.E.
198 (1918)).
104. Loucks, 224 N.Y. 99, at 111 (“To read the public policy defense as a parochial
device protective of national political interests would seriously undermine the Convention's
utility. This provision was not meant to enshrine the vagaries of international politics under the
rubric of ‘public policy.’ Rather, a circumscribed public policy doctrine was contemplated by
the Convention's framers and every indication is that the United States, in acceding to the
Convention, meant to subscribe to this supranational emphasis.”); EMMANUEL GAILLARD &
JOHN SAVAGE, FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL
ARBITRATION 1713 (1999) (discussing the limited application of the New York Convention’s
public policy exception).
105. W.R. Grace & Co. v. Local Union, 759, 461 U.S. 757, 766 (1983) (“If the contract
as interpreted by Barrett violates some explicit public policy, we are obliged to refrain from
enforcing it. Such a public policy, however, must be well defined and dominant, and is to be
ascertained by reference to the laws and legal precedents and not from general considerations
of supposed public interests.”) (internal citations and quotations omitted).
106. See Andrew M. Campbell, Refusal to Enforce Foreign Arbitration Awards on
Public Policy Grounds, 144 A.L.R. FED. 481 (2013) (providing an extensive review of cases in
which confirmation of a foreign arbitral award was challenged as contrary to US public
policy). See also, e.g., McDermott Intern., Inc. v. Underwriters at Lloyd's, 1996 WL 291803,
144 A.L.R. Fed. 731 (E.D. La. 1996), aff'd on other grounds, 120 F.3d 583 (5th Cir. 1997)
(confirming a foreign arbitration award in favor of an association of insurers despite the claim
2015] CROSS-BORDER INSOLVENCY 1609

error of law will not act as a bar to enforcement—a court will not
review the decision as long as an arbitrator has acted within the scope
of his authority.107 In fact, awards have been enforced in the United
States “even in circumstances in which enforcement of the award may
violate federal or state law.”108 For example, in the United States,
non-US arbitral awards have been upheld and confirmed when
enforcement of the award conflicted with US foreign policy, where
the prevailing party committed fraud, and where the arbitrators did
not follow agreed upon arbitral rules and standards.109

that enforcement of the award violate the public policy of the United States in view of a state
statute which declared invalid agreements to arbitrate insurance claims outside of the state).
107. See Julian D.M. Lew, Achieving the Dream: Autonomous Arbitration, 22(2) ARB.
INT'L 179, at 199 (describing UK House of Lords decision, Lesotho Highlands Development
Authority v. Impreglio SpA, [2005] UKHL 43, “Any error of law by the tribunal was an error
within its power . . . Parties are aware of the risks they are taking with respect to arbitration
awards with the law being applied correctly. There are few allegations that arbitrators have got
it wrong, but even where they do, this is a risk that the parties undertake. It is not for the courts
in England to intervene to review the arbitrators' powers or decisions on questions of law--
whatever the national law applicable.”); but see Howard A. Ellins & Christopher H. Withers,
Judicial Deference to the Authority of Arbitrators to Interpret and Apply Federal Antitrust
Laws, 12 AM. REV. INT’L ARB. 387, 396 (2001) (quoting United Paperworks Int'l v. AFL-CIO,
484 U.S. 29, 38 (1987) (“As long as the arbitrator is even arguably construing or applying the
contract and acting within the scope of his authority, that a court is convinced he committed
serious error does not suffice to overturn his decision.”)).
108. Ellins, supra note 107, at 400 (quoting United Paperworks Int'l v. AFL-CIO, 484
U.S. 29, 38 (1987), “As long as the arbitrator is even arguably construing or applying the
contract and acting within the scope of his authority, that a court is convinced he committed
serious error does not suffice to overturn his decision.”); see Laminoirs-Trefileries-Cableries
de Lens, S.A. v. Southwire Co., 484 F. Supp. 1063 (N.D. Ga. 1980) (holding that enforcement
of an arbitration award does not violate public policy despite contravening a Louisiana statute
that prohibited insurance policies from divesting courts of actions against insurers).
109. See Parsons & Whittemore Overseas Co., Inc. v. Societe Generale De L’Industrie
Du Papier, 508 F.2d 969, 978 (2d Cir. 1974) (confirming arbitration award in favor of
Egyptian corporation against American company that failed fully to execute contract to
construct a plant in Egypt when all Americans except those holding special visas were ordered
to leave country after Six Days War and U.S. Agency for International Development withdrew
financing for project); Indocomex Fibres Pte., Ltd. v. Cotton Co. Int’l, 916 F. Supp 721, 728-
29 (W.D. Tenn. 1996) (confirming arbitration award in favor of purchaser despite fact that
purchaser was guilty of fraud by failing to provide required letter of credit); Waterside Ocean
Navigation Co., v. Int’l Navigation Ltd., 737 F.2d 150, 152-53 (2d Cir. 1984) (confirming
arbitration award where arbitrators considered improper testimony or evidence); In re Matter
of Andros Compania Maritima, S.A., 579 F.2d 691, 703-04 (2d Cir. 1978) (confirming
arbitration award where arbitrators biased or prejudiced); Saudi Iron & Steel Co. v. Stemcor
USA Inc., 1997 WL 642566 at *2-3 (S.D.N.Y. 1997) (confirming arbitration award where
arbitrators improperly relied upon prior court arbitrations).
1610 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

3. The Public Policy Exception in US Common Law

In 1895, the US Supreme Court held that a court may refuse to
enforce a non-US judgment that violates a public policy of the United
States.110 Although in theory this exception is broad, US courts have
narrowly construed this common law public policy exception and
exercised it only rarely.111 A court may not decline enforcement
merely because a non-US judgment differs from local public policy—
rather, to justify its refusal to enforce a non-US judgment, a US court
must find that the judgment “contravenes a crucial stated public
policy affecting a fundamental interest of the forum.”112
Although no US court has enumerated a clear standard for the
common law public policy exception, US courts have consistently
refused to apply the public policy exception in enforcement cases for:
(1) the loss of goodwill and attorney’s fees awards, even though US
law generally does not allow these awards; (2) prejudgment interest,
even where local law prohibits such awards; (3) non-US proceedings
that invoke procedures inconsistent with the US Federal Rules of
Civil Procedure; and (4) remedying injuries incurred during
deportation.113 By contrast, US courts have consistently applied the

110. Hilton v. Guyot, 159 U.S. 113, 165 (1895) (describing comity as a “voluntary act of
the nation by which it is offered, and is inadmissible when contrary to its policy, or prejudicial
to its interests”) (internal citation omitted).
111. See Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 931
(D.C. Cir. 1984) (proffering that “[t]he standard for refusing to enforce judgments on public
policy grounds is strict”).
112. Compania Mexicana Rediodifusora Franteriza v. Spann, 41 F. Supp. 907, 908-09
(N.D. Tex. 1941), aff’d 131 F.2d 609 (5th Cir. 1942).
113. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 443 (3d Cir.
1971), cert. denied, 405 U.S. 1017 (1972) (holding that “the variance with Pennsylvania law is
not such that the enforcement tends clearly to injure the public health, the public morals, the
public confidence in the purity of the administration of law, or . . . undermines the sense of
security for individual rights, whether of personal liberty or of private property, which any
citizen ought to feel . . .”); see also Ingersoll Milling Machine Co. v. Granger, 833 F.2d 680,
692-93 (7th Cir. 1987) (holding that “the mere fact that Belgian law permits prejudgment
interest while Illinois law might not is not fatal to the Belgian award”); Tahan v. Hodgson, 662
F.2d 862, 866 (D.C. Cir. 1981) (holding that although the Israeli default judgment would not
have been awarded in the United States, the Israeli notice requirements were not “so repugnant
to fundamental notions of what is decent and just that U.S. public policy requires non-
enforcement of the [Israeli] judgment”) (internal quotations omitted); Ricart v. Pan American
World Airways, Inc., No. CIV.A.89-0768(HHG), 1990 WL 236080, at *1 (D.D.C. 1990)
(upholding a Dominican Republic judgment for damages incurred when the defendant airline
deported the plaintiff, even though the judgment was “in some conflict with . . . obligations of
the United States”); Browne v. Prentice Dry Goods, Inc., No. 84 CIV 8081(PKL), 1986 WL
6496 at *4 (S.D.N.Y. 1986) (enforcing an Argentinean judgment for attorney’s fees even
though a New York statute proscribed the awarding of attorney’s fees as being contrary to
2015] CROSS-BORDER INSOLVENCY 1611

public policy exception to deny enforcement of non-US judgments

where: (1) the wrongdoer, most often a fugitive from justice, seeks to
enforce a judgment for damages occurring in the context of his
wrongdoing; (2) the judgment is incompatible with the US
Constitution; and (3) the judgment is penal in nature.114
In sum, US courts have only applied the common law public
policy exception where an interest of the forum greater than
protecting the litigant is at stake.115 For example, a violation of the US
Constitution or the desire to prevent individuals from circumventing
federal or state laws would likely invoke a public policy exception.116

public policy); Hunt v. BP Exploration Co. (Libya), 492 F. Supp. 885, 900-01 (N.D. Tex.
1980) (holding that even though Texas law prohibited prejudgment interest, the distinction in
laws did not violate “good morals and natural justice” as to fall within the public policy
exception).
114. See United States v. Eng., 951 F.2d 461, 462 (2d Cir. 1991) (stating that a fugitive
from justice “cannot eat his cake and have it too”); United States v. $45,940 in Currency, 739
F.2d 792, 798 (2d Cir. 1984) (denying enforcement of foreign judgments that would reward a
wrongdoer for his or her malfeasance on the ground that to hold otherwise would result in the
court’s effective approval of the claimant’s initial wrongdoing, a practice that would defy the
very core of the US justice system); Matusevitch v. Telnikoff, 877 F. Supp. 1, 5-6 (D.D.C.
1995) (holding that enforcement of British libel judgment would violate state public policy and
deprive plaintiff of his constitutional right to free speech where there was no proof that
defendant’s statements were made with actual malice); United States v. One Lot of U.S.
Currency totaling $506,537, 628 F. Supp. 1473, 1475 (S.D. Fla. 1986) (finding that fugitive
from justice is not entitled to call upon judicial resources for assistance); see also Abdullah v.
Sheridan Square Press, Inc., No. 93 CIV.2525 (-LLS), 1994 L 419847, at *4 (S.D.N.Y. 1994)
(refusing to enforce British libel judgment because “establishment of a claim for libel under
the British law of defamation would be antithetical to the First Amendment protection
accorded to defendants”); Republic of the Philippines v. Westinghouse Elec. Corp., 821 F.
Supp. 292, 298 (D.N.J. 1993) (refusing to enforce judgment that included sanctions, which
foreign court imposed to deter wanton acts “by way of example or correction for the public
good” and not to compensate the plaintiff); Huntingon v. Attrill, 146 U.S. 657, 673-74 (1892)
(holding that if a judgment serves to “punish an offense against the public justice of the state,
or to afford a private remedy to a person injured by the wrongful act” of the defendant, US
courts will invoke the public policy exception).
115. See Minehan, supra note 99 at 808 (noting that “although U.S. courts have applied
the public policy exception and refused to enforce judgments in specific types of cases, U.S.
courts have narrowly interpreted the public policy exception and applied it on rare occasions”);
Keri Bruce, The Hague Convention on Choice-of-Court Agreements: Is the Public Policy
Exception Helping Click-Away the Security of Non-Negotiated Agreements?, 32 Brooklyn J.
Int’l L. 1103, 1120 (2007) (explaining that “most cases in which courts find public policy
violations, there is at stake some interest of the forum greater than protecting the litigant, such
as a violation of the U.S. Constitution or the desire to prevent individuals from circumventing
federal or state laws”).
116. See Bruce, supra note 115, at 1121 (explaining that “in most cases in which courts
find public policy violations, there is at stake some interest of the forum greater than protecting
the litigant, such as a violation of the U.S. Constitution or the desire to prevent individuals
from circumventing federal or state laws”); Jonathan A. Pittman, Note, The Public Policy
1612 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

In this context, US courts interpret the public policy exception

narrowly and have “exhibited a profound tendency towards the liberal
enforcement of foreign judgments that would not normally be
awarded in US courts.”117
Part I introduced public policy exceptions both in and outside the
context of bankruptcy law. Part I.A introduced the UNCITRAL
Model Law on Cross-Border Insolvency providing an overview of the
Model Law and introducing the public policy exception found in
Article 6 of the Model Law. Part I.B provided an overview of Chapter
15 of the US Bankruptcy Code and more specifically it introduced 11
U.S.C. § 1506—Chapter 15’s public policy exception. Part I.C
discussed public policy exceptions outside the context of bankruptcy,
including (i) the public policy exception found in enforcement of
judgment cases, (ii) the public policy exception found in international
arbitration, and (iii) the public policy exception found in US common
law.

II. US COURTS DENYING RELIEF BASED UPON § 1506

As discussed infra, courts uniformly construe § 1506 to apply
only when fundamental policies of the United States are at risk.118
Only five decisions have invoked the Public Policy Exception.119

Exception to the Recognition of Foreign Judgments, 22 Vand. J. Transnat’l L. 969, 991 (1989)
(explaining that “in most cases in which courts find public policy violations, there is at stake
some interest of the forum greater than merely protecting the litigant”) (citing Von Mehren &
Patterson, Recognition and Enforcement of Foreign Country Judgments in the United States, 6
Law & Pol’y Int’l Bus., 37, 63 (1974)).
117. See Minehan, supra note 99 at 804 (noting that “U.S. courts have enforced foreign
judgments based on causes of action that either do not exist under or vary from U.S. law. U.S.
courts have enforced foreign damage awards that would not be granted in the United States.
U.S. courts have thus exhibited a profound tendency towards the liberal enforcement of
foreign judgments that would not normally be awarded in U.S. courts.”); Bruce, supra note
115, at 1115 (explaining that “there are few cases in the U.S. that have denied recognition and
enforcement on public policy reasons alone, despite the fact that every state has the right to
refuse enforcement of a foreign judgment”).
118. See, e.g., In re Ernst & Young, Inc., 383 B.R. 773, 781 (Bankr. D. Colo. 2008)
(holding that “the public policy exception should be invoked only when the most fundamental
policies of the United States are at risk”).
119. See In re Qimonda AG, 462 B.R. 165, 185 (Bankr. E.D. Va. 2011) (holding that
“deferring to German law, to the extent it allows cancellation of the U.S. patent licenses,
would be manifestly contrary to U.S. public policy.”); In re Vitro S.A.B de CV, 473 B.R. 117,
132 (Bankr. N.D. Tex. 2012) (concluding that a foreign reorganization plan that extinguishes,
rather than modifies, the protection of third party claims in a bankruptcy case is manifestly
contrary to the public policy of the United States); In re Toft, 453 B.R. 186, 198 (Bankr.
S.D.N.Y. 2011) (denying relief because “[s]uch relief would impinge severely a U.S.
2015] CROSS-BORDER INSOLVENCY 1613

These five cases involved: (A) constitutional privacy rights—In re

Toft; (B) constitutional due process rights—In re Sivec; (C) a foreign
main proceeding pursued in violation of US court order—In re Gold
& Honey; (D) the discharge of third-party guarantees—In re Vitro;
and (E) the protection of US patent licenses—In re Qimonda.120 This
Part analyzes of these five cases. Note, however, that on appeal, the
US Court of Appeals for the Fifth Circuit and the Fourth Circuit in
Vitro and Qimonda, respectively, held that an analysis of § 1506 was
unnecessary because foreign recognition could be denied under a
different section of Chapter 15.121

A. Privacy Rights
In In re Toft, the Bankruptcy Court for the Southern District of
New York refused to enforce a German court order that would have
allowed the foreign representative unrestrained access to emails of the
debtor that were being stored on Internet servers in the United
States.122 The German court had granted the foreign representative a
Mail Interception Order on an ex parte basis, which allowed the
foreign representative to intercept the debtor’s postal and electronic
mail without giving notice to the debtor.123
Chapter 15 permits a foreign representative to seek discovery
concerning a debtor’s assets, affairs, rights, obligations, or

constitutional or statutory right.”) (internal citation and quotations omitted).; In re Sivec Srl,
Case No. 11-80799-TRC, 2011 WL 3651250 at *3 (Bankr. E.D. Okla. 2011) (denying the
foreign representatives request for relief because to “grant these requests would violate this
country’s fundamental rights of notice and opportunity to be heard.”); In re Gold & Honey,
Ltd., 410 B.R. 357, 372-73 (Bankr. E.D.N.Y. 2009) (invoking the Public Policy Exception
because recognition of the foreign proceeding would be “manifestly contrary to the public
policy of the United States because such recognition would reward and legitimize the foreign
representatives violation of both the automatic stay and this Court’s Orders regarding the
stay”).
120. See supra note 119 and accompanying text.
121. See In re Vitro, 701 F.3d at 1070 (holding that “because we conclude that relief is
not warranted under § 1507, however, and would also not be available under § 1521, we do not
reach whether the Concurso plan would be manifestly contrary to a fundamental public policy
of the United States”); In re Qimonda, 737 F.3d at 32 (affirming the bankruptcy court on its §
1522(a) analysis, rather than engaging in an analysis under § 1506).
122. In re Toft, 453 B.R. at 189 (explaining that the court order sought by the foreign
representative requests that the court enter an order enforcing the Mail Interception Order in
the United States by compelling the ISPs, AOL, Inc. and 1 & 1 Mail & Media, Inc., to disclose
to all of the Debtor's e-mails currently stored on their servers and to deliver copies of all e-
mails received by the Debtor in the future).
123. Id. at 188 (describing the “Mail Interception Order” entered by the German court
that authorizes the foreign representative to intercept Toft's postal and electronic mail).
1614 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

liabilities.124 Chapter 15 specifically provides that this relief is

discretionary.125 In general, US courts have construed this provision
to require that interests of allowing discovery of a debtor’s personal
financial information be balanced with the debtor’s privacy
interests.126
Although the Bankruptcy Court for the Southern District of New
York acknowledged that mail interception orders are common
practice under German law, it refused to enforce the order in the
United States because doing so would violate fundamental US public
policies.127 In particular, the court noted that the privacy of electronic
communications is subject to comprehensive legislation in the United
States, including through the Wiretap Act, the Privacy Act, and the
Stored Communications Act.128 Under these US laws, any individual
intentionally intercepting electronic communications may be subject
to criminal and civil penalties.129 Such interceptions may be
authorized only during the course of a criminal investigation and upon
a “heightened showing of necessity.”130 Finding that recognition
would be manifestly contrary to US public policy, the bankruptcy
court denied the request for Chapter 15 recognition of the German
proceeding.131

124. See 11 U.S.C. § 1521(a)(4) (permitting the court to, “at the request of the foreign
representative, grant any appropriate relief, including providing for the examination of
witnesses, the taking of evidence or the delivery of information concerning the debor’s assets,
affairs, rights, obligations or liabilities”); see also In re Toft, 453 B.R. at 193 (describing the
relief available under § 1521(a)(4)).
125. See In re Toft, 453 B.R. at 193 (holding that 1521(a)(4) permits discovery after
entry of an order of recognition and 1519(a)(3) provides such relief on an interim, emergency
basis pending an order of recognition).
126. See Id. at 196 (holding that “a court should tailor relief balancing the interests of the
foreign representative and those affected by the relief”) (quoting In re Tri-Continental
Exchange Ltd., 349 B.R. 627, 637 (Bankr. E.D. Cal. 2006)).
127. Id. at 188, 201 (denying recognition of what is alleged to be common German
practice, the German Court entered a Mail Interception Order).
128. Id. at 189 (discussing the relief sought by the foreign representative and criticizing
inspection orders because of their impact on privacy rights and the protections of the Fourth
Amendment to the U.S. Constitution).
129. Id. at 197 (describing the Wiretap Act and how “civil and criminal penalties can be
imposed on any person who ‘intentionally intercepts . . . any wire, oral, or electronic
communication’”) (internal citation omitted).
130. Id. (discussing the requirements needed to lawfully conduct a wiretap without the
consent of one of the parties to the communication).
131. Id. at 201 (holding that “this is one of the rare cases in which an order of
recognition on the terms requested would be manifestly contrary to U.S. public policy,
reflected in rights that are based on fundamental principles of protecting the secrecy of
2015] CROSS-BORDER INSOLVENCY 1615

Rights protected by the Constitution of a State uniformly have

been considered policy concerns validly triggering application of a
public policy exception.132 The public policies at stake in Toft
involved privacy rights protected under the US Constitution.133 Thus,
the court’s holding that foreign recognition would be “manifestly
contrary to the public policy of the United States” was consistent with
other cases invoking a public policy exception.134

B. Due Process Rights

Another fundamental feature of US law is that parties affected
by a legal proceeding are entitled to due process and notice.135 In re
Sivec SRL illustrates that a bankruptcy court may deny recognition to
a foreign proceeding if creditors are deprived of a right to receive
notice or an opportunity to be heard.136 In this case, Sivec entered into
an Italian liquidation proceeding.137 Zeeco, a creditor of Sivec, did not
receive notice of the Italian proceeding.138 As a result, Zeeco did not
file a proof of claim against Sivec in the Italian proceeding.139 Years
later, Zeeco sued Sivec in the Eastern District of Oklahoma for breach

electronic communications, limiting the powers of an estate representative, and providing

notice to parties whose rights are affected by a court order”).
132. See supra notes 114-16 and accompanying text (discussing the public policy
exception in US non-bankruptcy law in instances where constitutional rights are threatened).
133. In re Toft, 453 B.R. at 198 (holding that “the relief sought would directly
compromise privacy rights subject to a comprehensive scheme of statutory protection,
available to aliens, built on constitutional safeguards incorporated in the Fourth Amendment as
well as the constitutions of many States. Such relief would impinge severely a U.S.
constitutional or statutory right.”) (internal citation and quotations omitted).
134. See supra notes 114-16 (discussing the public policy exception in US non-
bankruptcy law in instances where constitutional rights are threatened).
135. See In re Sivec Srl, Case No. 11-80799-TRC, 2011 WL 3651250, at *3 (Bankr.
E.D. Okla. 2011) (finding public policy grounds for denying Sivec's requested relief of
continuing the stay of the Eastern District lawsuit and seeking an order from this Court
directing Zeeco to turn over the disputed funds because such requests would violate this
country's fundamental rights of notice and opportunity to be heard).
136. Id. (holding that such relief would violate the US's fundamental rights of notice and
opportunity to be heard).
137. Id. at *1 (describing the Italian liquidation proceeding as a foreign main
proceeding).
138. Id. at *3 (holding that the foreign representative’s requested relief of continuing the
stay of the Eastern District lawsuit and seeking an order from this Court directing Zeeco to
turn over the disputed funds “would violate this country's fundamental rights of notice and
opportunity to be heard”).
139. Id. (determining that “Zeeco is not a secured creditor because it did not file a claim
in the Italian Proceeding”).
1616 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

of contract.140 Sivec consented to the court's jurisdiction and then

filed a Chapter 15 petition asking the bankruptcy court to recognize
the Italian liquidation proceeding and to stay the Zeeco breach of
contract action.141 The bankruptcy court held that denying Zeeco the
right to prosecute its contract claim “would violate this country's
fundamental rights of notice and opportunity to be heard.”142 The
court concluded that protection of Zeeco's fundamental due process
rights required that the stay be lifted and the Oklahoma action
proceed to judgment.143
Rights protected by the Constitution uniformly have been
considered a valid trigger for a public policy exception.144 The public
policy at stake in this case involved fundamental and constitutionally
protected rights to notice and the opportunity to be heard.145 Thus, the
court holding that the foreign representative’s request for relief should
be denied based on § 1506 was consistent with other foreign courts
invoking public policy exceptions.146 However, to refuse recognition,
the court did not need to reach a § 1506 analysis. The court held that
Zeeco’s interests had not been protected in the Italian proceeding.147
Accordingly, the court could have solely relied on § 1522, which
requires that “the interests of U.S. creditors, such as Zeeco, [be]
protected.”148

140. Id. at *1 (describing the procedural history of the case).

141. Id. (describing the procedural history of the case).
142. Id. at *3 (holding that the foreign representative’s requested relief of continuing the
stay of the Eastern District lawsuit and seeking an order from this Court directing Zeeco to
turn over the disputed funds would violate this country's fundamental rights of notice and
opportunity to be heard).
143. Id. at *4 (holding that Zeeco's interests were not protected in the Italian proceedings
because it had received no notice of those proceedings and had no ability to recover from the
Italian estate since it had not filed a claim).
144. See supra notes 114-16 and accompanying text (discussing the public policy
exception in US non-bankruptcy law being invoked when constitutional rights are threatened).
145. In re Sivec Srl, Case No. 11-80799-TRC, 2011 WL 3651250, at *4 (Bankr. E.D.
Okla. 2011), (holding that in order “to insure that Zeeco's fundamental rights of notice and
opportunity to be heard are protected, and in an effort to protect its interests and mold relief
appropriate in this particular case, the stay should be lifted and the parties should proceed to a
resolution of their dispute through the Eastern District lawsuit”).
146. See supra notes 114-17 (discussing instances when public policy exceptions outside
of bankruptcy have been invoked).
147. In re Sivec Srl, 2011 WL 3651250 at *3 (“Zeeco's interests do not appear to have
been protected in the Italian proceeding.”).
148. Id. (interpreting and applying § 1522); see also 11 U.S.C. § 1522(a) (allowing the
court to “grant relief under section 1519 or 1521, or may modify or terminate relief under
subsection (c), only if the interests of the creditors and other interested entities, including the
debtor, are sufficiently protected”).
2015] CROSS-BORDER INSOLVENCY 1617

C. Foreign Main Proceeding Pursued in Violation of an

Automatic Stay
In In re Gold & Honey, the Bankruptcy Court for the Eastern
District of New York invoked § 1506 to foreclose a foreign creditor
from obtaining recognition, where the foreign proceedings were
commenced in violation of the orders of the US court.149 In 2008,
Gold & Honey Ltd. and an affiliate filed voluntary Chapter 11
petitions in the Eastern District of New York.150 At the same time, a
creditor of the Gold & Honey debtors, the First International Bank of
Israel (“FIBI”), was pursuing receivership proceedings in Israel.151
The US Bankruptcy Court warned FIBI that its actions in the
receivership proceedings violated the automatic stay and were taken
“at its own peril.”152 Nonetheless, FIBI pursued the Israeli
receivership and subsequently filed for Chapter 15 recognition of
those proceedings in the same court where the Chapter 11 case was
pending.153
The Gold & Honey court denied recognition of the Israeli
receivership, finding that it would severely impinge US bankruptcy
courts' abilities to carry out two of the most fundamental policies and
purposes of the automatic stay.154 The court thought that this result
would invite parties to contravene US public policy while
simultaneously invoking the benefits of a US court’s jurisdiction.155
While In re Gold & Honey did not implicate constitutional issues,
courts uniformly have held that a public policy exception should be
triggered where recognition is inconsistent with basic notions of

149. See In re Gold & Honey, 410 B.R. 357, 372-73 (Bankr. E.D.N.Y. 2009) (denying
recognition of the foreign proceeding because of the ramifications that would ensue in
derogation of fundamental United States policies).
150. Id. at 363 (describing the procedural history of the case).
151. Id. (explaining FIBI’application for the appointment of a temporary receiver before
the Israeli Court was done in violation of the automatic stay).
152. Id. at 363 (describing the court’s warning to FIBI “that if it proceeded before the
Israeli Court in the Israeli Receivership Proceeding, it did so at its own peril”).
153. Id. at 364 (describing the actions of FIBI and the foreign court).
154. Id. at 372 (holding that “a foreign seizure of a debtor's assets postpetition would
severely hinder United States bankruptcy courts' abilities to carry out two of the most
fundamental policies and purposes of the automatic stay-namely, preventing one creditor from
obtaining an advantage over other creditors, and providing for the efficient and orderly
distribution of a debtor's assets to all creditors in accordance with their relative priorities”).
155. Id. at 372 (explaining that “condoning FIBI's conduct here would limit a federal
court's jurisdiction over all of the debtors' property ‘wherever located and by whomever held,’
as any future creditor could follow FIBI's lead and violate the stay in order to procure assets
that were outside the United States, yet still under the United States court's jurisdiction”).
1618 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

justice.156 For a US court to grant recognition of a foreign order

sought in direct violation of the same US court’s order granting an
automatic stay would contravene basic notions of justice.157 Granting
recognition of a foreign order sought in violation of the same court’s
automatic stay order rewards the wrongdoer for his wrongdoing.158
Thus, the court’s holding that recognition would be “manifestly
contrary to the public policy of the United States” is consistent with
the application of public policy exception by foreign courts.159
However, the Gold & Honey court did not need to reach a §
1506 analysis to refuse recognition.160 The court held that the foreign
proceeding was neither a foreign main proceeding nor a foreign
nonmain proceeding.161 Thus, the court could have ended its analysis
by denying recognition under § 1517.162 Instead, the court, in dicta,
went on to hold that recognition of the foreign proceeding would be
manifestly contrary to the public policy of the US.163

D. Discharge of Third-Party Guarantees

Vitro, S.A.B. de C.V. (“Vitro”), a Mexican holding company
conducting substantially all of its multinational operations through
subsidiaries, filed a voluntary judicial reorganization proceeding in
Mexico in 2010.164 Its insolvency representative later sought
recognition of a pre-packaged “concurso” or restructuring plan.165 The
approval order extinguished the guarantee obligation of Vitro’s non-

156. See supra note 114 and accompanying text (discussing U.S. v. $45,940 in Currency,
739 F.2d 792, and providing an example where a wrongdoer seeks to enforce a judgment for
damages occurring in the context of his wrongdoing).
157. Id. (discussing basic notions of justice would be violated if a wrongdoer would be
rewarded for damages occurring in the context of his wrongdoing).
158. Supra note 157 and accompanying text.
159. See supra notes 114-17 (discussing instances when public policy exceptions outside
of bankruptcy have been invoked).
160. In re Gold & Honey, 410 B.R. at 367 (“The Israeli Receivership Proceeding is
neither a foreign main proceeding nor a foreign nonmain proceeding.”).
161. Id. (holding that the foreign proceeding was neither a foreign main proceeding nor a
foreign nonmain proceeding).
162. See 11 U.S.C. § 1517(a)(1) (requiring that a foreign proceeding be a foreign main or
nonmain proceeding).
163. See In re Gold & Honey, 410 B.R. at 372-73 (refusing to recognize the foreign
proceeding because of the serious ramifications that would ensue in derogation of fundamental
United States policies).
164. See In re Vitro S.A.B. de CV, 455 B.R. 571, 575 (Bankr. N.D. Tex. 2011)
(describing the procedural history of the case).
165. Id. (describing the procedural history of the case).
2015] CROSS-BORDER INSOLVENCY 1619

debtor subsidiary guarantors, effectively discharging obligations to

the note-holders.166 In response, Vitro’s note-holders brought action
in a New York state court to collect debts owed under the guarantee
obligations.167 This prompted Vitro’s foreign representative to file a
motion in the United States Bankruptcy Court for the Northern
District of Texas seeking recognition of the Mexican proceeding and
a permanent injunction prohibiting the note-holders from bringing any
actions in the United States against Vitro or its non-debtor subsidiary
guarantors.168 Citing to 11 U.S.C. § 524, the bankruptcy court
concluded that the “protection of third-party claims in a bankruptcy
case is a fundamental policy of the United States.”169 The court held
that extinguishing the non-debtor guarantee liability was extreme, and
that because these claims were neither recognized nor protected by
the Concurso plan, such a plan was “manifestly contrary to such
policy of the United States” and could not be enforced under §
1506.170
On appeal, the Fifth Circuit sidestepped the Public Policy
Exception.171 In doing so, the Fifth Circuit rejected the traditional
comity-based approach used by previous courts and developed a new
set of rules for statutory interpretation of Chapter 15.172 It segregated
the sections of Chapter 15 containing specific terms and created a rule
of hierarchy of these more specific provisions, §§ 1521 and 1522,

166. See In re Vitro S.A.B. de CV, 473 B.R. 117, 132 (Bankr. N.D. Tex. 2012) (finding
that “the Concurso Approval Order does not simply modify such claims against non-debtors,
they are extinguished”).
167. See In re Vitro, 455 B.R. at 575 (describing the procedural history of the case).
168. See In re Vitro, 473 B.R. at 120 (discussing the relief requested by the foreign
representatives).
169. Id. at 131-32 (describing the policy of the United States is regarding “discharge of
claims for entities other than a debtor in an insolvency proceeding, absent extraordinary
circumstances not present in this case”) (citing Matter of Zale Corp., 62 F.3d 746 (5th Cir.
1995)).
170. Id. at 132 (holding that the Concurso plan is manifestly contrary to the policy of the
United States and cannot be enforced because it extinguishes claims against non-debtor
guarantors).
171. In re Vitro S.A.B de CV, 701 F.3d 1031, 1070 (5th Cir. 2012) (holding that
“because we conclude that relief is not warranted under § 1507, however, and would also not
be available under § 1521, we do not reach whether the Concurso plan would be manifestly
contrary to a fundamental public policy of the United States.”).
172. See id. at 1054 (determining that although comity should be an important factor in
determining whether relief will be granted a foreign representative may independently seek
relief under either § 1521 or § 1507).
1620 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

over the more general provisions as in § 1507.173 Thus, the court

concluded that relief was not warranted under § 1507 and would also
not be available under § 1521, and as a result the court held that it did
not need to determine “whether the Concurso plan would be
manifestly contrary to a fundamental public policy of the United
States.”174

E. Protection of US Patent Licenses

The US Bankruptcy Court for the Eastern District of Virginia
refused recognition in Qimonda because the requested relief would
have severely impinged on an important statutory protection accorded
to licensees of US patents, thereby undermining a fundamental US
public policy of promoting technological innovation.175 The court
held that, on the whole, the hardship faced by foreign debtor by
depriving it of opportunity to negotiate new licensing agreements at
higher rates was outweighed by the substantial detriment that the US
licensees would suffer.176 Thus, even absent public policy
considerations, foreign recognition was denied because the
requirements of § 1522 had not been satisfied.177 After already
holding that the requirements of § 1522 had not been satisfied, the
court went on to hold in dicta that the failure of German insolvency
law to protect patent licensees was “manifestly contrary” to the public
policy of the United States.178
On appeal, the Fourth Circuit upheld the balance of interests
employed by the lower court under § 1522(a) and “in reaching this
conclusion [joined] the Fifth Circuit[’s]” interpretation of §§ 1521,

173. Id. at 1056 establishing the framework for Chapter 15 and holding that: First,
because § 1521 lists specific forms of relief, a court should initially consider whether the relief
requested falls under one of these explicit provisions (quoting In re Read, 692 F.3d 1185, 1191
(11th Cir. 2012) (holding that specific terms prevail over the general)) . . . Second, if
§1521(a)(1)-(7) and (b) does not list the requested relief, a court should decide whether it can
be considered “appropriate relief” under § 1521(a) . . . Third, only if the requested relief
appears to go beyond the relief previously available under § 304 or currently provided for
under United States law [] should a court consider § 1507.
174. Id. at 1070.
175. See In re Qimonda AG, 462 B.R. 165, 183-85 (Bankr. E.D. Va. 2011) (holding that
the public policy exception in section 1506 should be invoked to deny relief) aff'd sub nom.
Jaffe v. Samsung Elec. Co. (In re Qimonda), 737 F.3d 14 (4th Cir. 2013).
176. Id. at 181-83 (discussing the application of § 1522).
177. Id. (discussing the framework of Chapter 15).
178. Id. at 185.
2015] CROSS-BORDER INSOLVENCY 1621

1522, and 1507.179 The Fourth Circuit held that the bankruptcy court
correctly interpreted the sufficient protection requirement of §
1522(a) to require a particularized balancing analysis that considers
the “interests of the creditors and other interested entities, including
the debtor.”180 Because it affirmed the US Bankruptcy Court's
decision based on the application of § 1522(a)'s balancing of interests,
the Fourth Circuit did not expressly address the US Bankruptcy
Court's alternative holding that depriving US patent licensees of §
365(n) protection would be manifestly contrary to the public policy of
the United States.181
Part II introduced the five decisions that have invoked the Public
Policy Exception.182 These five cases involved: (A) constitutional
privacy rights—In re Toft; (B) constitutional due process rights—In
re Sivec; (C) a foreign main proceeding pursued in violation of a US
court order—In re Gold & Honey; (D) the discharge of third-party
guarantees—In re Vitro; and (E) the protection of US patent
licenses—In re Qimonda.183 This Part provided an analysis of these
five cases. Additionally, it discussed the framework established by the
United States Court of Appeals for the Fifth Circuit and the Fourth
Circuit in In re Vitro and In re Qimonda, respectively, who both held
that the lower courts unnecessarily invoked the Public Policy
Exception.184

179. Jaffe v. Samsung Elec. Co. (In re Qimonda), 737 F.3d 14, 29 (4th Cir. 2013)
(holding “that the district court correctly interpreted § 1522(a)'s sufficient protection
requirement . . . [and] in reaching this conclusion, we join the Fifth Circuit, which interpreted
§ 1522(a) similarly, based largely on the language in the Guide to Enactment”).
180. Id. at 18 (concluding “that the bankruptcy court properly recognized that Jaffé’s
request for discretionary relief under § 1521(a) required it to consider the interests of the
creditors and other interested entities, including the debtor under § 1522(a) and that it properly
construed § 1522(a) as requiring the application of a balancing test”) (internal quotations
omitted).
181. See id. at 31 (affirming the bankruptcy court, based on its application of § 1522(a)
and declining to engage in an analysis under § 1506).
182. See In re Toft, 453 B.R. 186 (Bankr. S.D.N.Y. 2011); In re Sivec Srl, Case No. 11-
80799-TRC, 2011 WL 3651250 (Bankr. E.D. Okla. August 18, 2011); In re Gold & Honey,
Ltd., 410 B.R. 357 (Bankr. E.D.N.Y. 2009); In re Vitro S.A.B de CV, 701 F.3d 1031 (5th Cir.
2012); In re Qimonda, 737 F.3d at 14.
183. See supra note 182 and accompanying text.
184. See In re Vitro, 701 F.3d at 1070 (holding that because “relief is not warranted
under § 1507, however, and would also not be available under § 1521, we do not reach
whether the Concurso plan would be manifestly contrary to a fundamental public policy of the
United States”); In re Qimonda, 737 F.3d at 32 (affirming the bankruptcy court on its §
1522(a) analysis, rather than engaging in an analysis under § 1506).
1622 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

III. A PROPOSED FRAMEWORK FOR CHAPTER 15

Part III contends that courts should rely on the Public Policy
Exception only when no other provision in Chapter 15 applies,
arguing that a narrow construction and application of § 1506 should
be favored. This approach is most consistent with the language and
implementation of § 1506 and the framework of Chapter 15.185
Moreover, it is consistent with legislative intent as Congress
consciously chose to replicate the language of other public policy
exceptions.186 Additionally, a narrow interpretation of § 1506 best
accomplishes the objectives of Chapter 15.187 This approach
minimizes unnecessary conclusions that the public policy exception
has been satisfied and prevents courts from undermining the narrow
circumstances under which the public policy exception applies.188

A. The Language and Implementation of § 1506 Requires a

Narrow Interpretation
The starting point for any interpretation of § 1506 is the plain
meaning of its words with guidance from the House Committee
Report that accompanied the passage of Chapter 15.189 The word
“manifestly” is used as a qualifier of the expression “public policy”
and is intended to emphasize that § 1506 should be interpreted
restrictively and “is only intended to be invoked under exceptional
circumstances concerning matters of fundamental importance.”190
Congress’ decision to include the qualification that the request is
“manifestly” contrary to the public policy of the United States is an

185. See House Report, supra note 4, at 109; see, e.g., In re Ernst & Young, Inc., 383
B.R. 773, 781 (Bankr. D. Colo. 2008) and accompanying text (describing the legislative
history of Chapter 15 and the implementation of § 1506).
186. See supra note 185 and accompanying text.
187. See 11 U.S.C. § 1501(2)-(5); 11 U.S.C. § 1507(b); 11 U.S.C. § 1508; 11 U.S.C. §
1509(b)(3); see also In re Vitro S.A.B. de CV, 701 F.3d 1031, 1044 (5th Cir. 2012) cert.
dismissed, 133 S. Ct. 1862, 185 L. Ed. 2d 862 (2013) and accompanying text (describing the
objectives of Chapter 15).
188. See supra notes 171-74, 179-81 and accompanying text (discussing the framework
established by the United States Court of Appeals for the Fifth Circuit and the Fourth Circuit
in Vitro and Qimonda, respectively, which both held that the lower courts unnecessarily
invoked the Public Policy Exception).
189. See House Report, supra note 4, at 109; see, e.g., In re Ernst & Young, 383 B.R. at
781 (describing the starting point for interpreting any statute and discussing the legislative
history of Chapter 15).
190. See UNCITRAL supra note 35 at ¶ 88-89 (describing the use of the expression
“manifestly” and its intended interpretation).
2015] CROSS-BORDER INSOLVENCY 1623

explicit indication of its intent that § 1506 should be interpreted

narrowly.191
Furthermore, when implementing § 1506, the House Report
recognized that the language of § 1506 followed the text of Article 6
verbatim, and that this language has been “narrowly interpreted on a
consistent basis in courts around the world.”192 The House Report also
recognized that public policy, as relied upon in matters of
international cooperation, is understood more restrictively than US
public policy.193 As a result, Congress’ knowledge that the language
of § 1506 explicitly followed Article 6 of the Model Law further
supports the fact that Congress intended § 1506 to be narrowly
interpreted.194

B. The Framework of Chapter 15 Minimizes the Need to Invoke

§ 1506
In the context of Chapter 15 as a whole, § 1506 is a “safety
valve” that allows courts to refuse recognition of a foreign judgment
or other requests made in the context of a recognized proceeding.195
In other words, in cases where a foreign judgment would conflict with
a matter of fundamental importance, § 1506 is the “safety valve” that
should be invoked only if the court has no other option for refusing
recognition.196 Before turning to the public policy exception in §
1506, US courts should proceed through a Vitro-framed analysis that
first relies on §§ 1522 and 1507(b) when refusing recognition of a
foreign order.197

191. Id.
192. See House Report, supra note 4, at 109 (noting that § 1506 follows Article 6 of the
Model Law exactly, is standard in UNCITRAL texts, and has been narrowly interpreted on a
consistent basis in courts around the world).
193. Id.
194. Id. (recognizing that § 1506 follows Article 5 of the Model Law exactly, is standard
in UNCITRAL texts, and has been narrowly interpreted on a consistent basis in courts around
the world).
195. See In re Qimonda AG Bankr. Litig., 433 B.R. 547, 567 (E.D. Va. 2010)
(discussing how courts have described the § 1506 public policy exception to be a “safety
valve,”); Minehan, supra note 99 at 796, 800, 811-12 and accompanying text (describing
public policy exceptions in private international law as a “safety valve”).
196. See supra note 195 and accompanying text (establishing a framework for
determining whether a court should grant relief to a foreign representative).
197. See supra note 195 and accompanying text (establishing a framework for
determining whether a court should grant relief to a foreign representative).
1624 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

1. Overview of the Various “Safeguard” Provisions

In order to fully understand the protective scope of § 1522 it is
helpful to review the relief available under §§ 1519, 1520, and
1521.198 Section 1519 of the Bankruptcy Code provides a vehicle for
the entry of relief that may be necessary during the gap period
between the filing of a petition for recognition and court’s decision on
the petition.199 Section 1519 is limited to relief that is “urgently
needed to protect the assets of the debtor or the interest of the
creditors” and that is provisional or temporary in nature.200 The relief
would terminate when the petition for recognition is granted, unless
the court specifically extends it under § 1521(a)(6).201
Under § 1520, recognition as a foreign main proceeding
automatically entitles the bankruptcy estate to critical protections and
rights provided under the Bankruptcy Code, including: (i) the
automatic stay and other provisions of § 362; (ii) § 363, governing the
sale of assets outside the ordinary course of business; and (iii) the
post-filing effect of security interests, as set forth in § 552.202
Additionally, § 1520 contains an exception to the automatic stay for
the right to commence an individual action or proceeding in a foreign
country to the extent necessary to preserve a claim against a debtor.203
The relief available under § 1521 is broader than that provided
automatically under § 1520, but all additional relief available under §
1521 is at the discretion of the bankruptcy court. Section 1521
specifies that any relief provided must be shown to be “necessary to
effectuate the purpose of this chapter and to protect the assets of the
debtor or the interests of the creditors.”204 Additionally, § 1522(a) of
the Bankruptcy Code provides that the court may grant relief under §§

198. See supra Part I.B(1) (providing an overview of Chapter 15 of the US Bankruptcy
Code).
199. See supra notes 71-74 and accompanying text (providing an overview of 11 U.S.C.
§ 1519).
200. See supra notes 71-74 and accompanying text (providing an overview of 11 U.S.C.
§ 1519, and more specifically its limitations).
201. See supra notes 71-74 and accompanying text (providing an overview of 11 U.S.C.
§ 1519, and more specifically when the relief terminates).
202. See supra note 74 and accompanying text (providing an overview of 11 U.S.C. §
1520, specifically the automatic relief provided after recognition of a foreign main
proceeding).
203. See supra note 74 and accompanying text (providing an overview of 11 U.S.C. §
1520, specifically an exception to the automatic stay).
204. See supra notes 75-77 and accompanying text (providing an overview of 11 U.S.C.
§ 1521(a), specifically the limitations of the discretionary relief available).
2015] CROSS-BORDER INSOLVENCY 1625

1519 and 1521 only if the interests of creditors and other interested
entities, including the debtor, are sufficiently protected.205 The
purpose of § 1522(a) is to ensure a balance between the relief that
may be granted to the foreign representative and the interests of those
potentially affected by such relief.206 Section 1522(a) complements
the requirements of § 1521(b), which require that the court be
satisfied that the interests of creditors in the United States are
sufficiently protected in the context of entrusting assets for
distribution.207
Section 1507(b) sets forth the factors that the court must
consider when determining whether to provide additional
assistance.208 These factors are nearly identical to those set forth in
former § 304(c), subject to slight rearrangement to relocate “comity”
from the listed factors to the introduction.209 Comity is raised to the
introductory language to make it clear that it is the central concept to
be addressed.210

2. Structure of the “Safeguard” Provisions

A number of courts have concluded that the Public Policy
Exception should be employed only when another provision of
Chapter 15 does not resolve the dispute.211 Thus, courts should first
determine whether relief is available under the explicit provisions of §
1521.212 If §§ 1521(a)(1)-(7) and 1521(b) does not list the requested
relief, a court should next assess whether relief is available as

205. See supra notes 77, 126, 148, 171-74, 177-81 and accompanying text (describing
the requirements and application of § 1522).
206. See supra note 27 and accompanying text (describing the purpose of Article 22 of
the Model Law).
207. See supra note 77 (providing that § 1521(b) allows the court to entrust the
distribution of all or part of the debtor’s assets, provided that the court is satisfied that the
interests of creditors in the US are sufficiently protected).
208. See supra note 78 and accompanying text (listing the factors that a court must
consider under § 1507(b)).
209. Compare supra note 79 and accompanying text (listing the factors that a court must
consider under § 1507(b), with supra note 46 and accompanying text (listing the factors that a
court considered when granting relief under former § 304(c)).
210. House Report, supra note 4, at 109 (indicating that congress intentionally raised
comity to the introductory language).
211. See supra note 9 (discussing various cases that have held that that the Public Policy
Exception should be invoked only when no other provision of Chapter 15 resolves the issue).
212. See supra note 172 (providing a framework for Chapter 15 where a court’s
interpretation begins with the specific terms of Chapter 15 before general terms).
1626 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

“appropriate relief” under § 1521(a).213 In doing so, courts should

determine whether the requirements of § 1522 are satisfied.214 As a
result, § 1522 is the first “safeguard” provision of Chapter 15 that
comes into effect.215
If relief is available under § 1521 and the court finds that the
interests of the creditors and other interested entities, including the
debtor, are sufficiently protected—therefore satisfying § 1522, the
court should turn to § 1506 to determine whether the public policy
exception should be triggered, thus making § 1506 the final
“safeguard” or “safety valve.”216 If, however, the court finds that
relief is available under § 1521, but the interests of the creditors and
other interested entities are not sufficiently protected, then the court
has no need to decide whether § 1506 is triggered, because § 1522
would be the basis for not “granting appropriate relief.”217
Additionally, if and only if the requested relief appears to exceed
the “appropriate relief” available under § 1521(a), should a court
consider § 1507, thus invoking Chapter 15’s safeguard in §
1507(b).218 If the court determines that the interests provided in §
1507(b)(1)-(5) are satisfied and thus provides “additional assistance”
to the foreign representative, the court should turn to § 1506 to
determine whether the public policy exception should be triggered.219
This would make § 1506 the final “safeguard” or “safety valve.”220 If,
however, a Court determines that “additional assistance” should not

213. See supra note 172 (providing a framework for Chapter 15 where a court’s
interpretation begins with the specific terms of Chapter 15 before general terms).
214. See supra notes 77, 126, 148, 171-74, 177-81 and accompanying text (providing an
overview of the “safeguard” in § 1522).
215. See supra notes 171-74 (providing a framework for Chapter 15 where a court’s
interpretation begins with the specific terms of Chapter 15 before general terms).
216. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
217. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
218. See supra notes 171-74 and accompanying text (providing a framework for Chapter
15 where a court’s interpretation begins with the specific terms of Chapter 15 before general
terms).
219. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
220. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
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be granted because the interests provided in § 1507(b)(1)-(5) are not

satisfied, there is no need to decide whether § 1506 is triggered,
because § 1507(b) would be the basis for not granting “additional
assistance.”221 Thus, the overall framework of Chapter 15 itself
narrows the scope of § 1506.222 The safeguards in §§ 1522 and
1507(b) present a “first line of defense,” thus minimizing the
circumstances under which a court would need to invoke an analysis
of § 1506.223

C. The Language of § 1506 Was Consciously Chosen to

Replicate Other Public Policy Exceptions.
The language included in § 1506 is identical to language found
in other public policy exceptions that have “been narrowly interpreted
on a consistent basis in courts around the world.”224 The original
drafters of the Model Law consciously chose to replicate these other
public policy exceptions.225 As a result, by implementing Article 6 of
the Model Law verbatim, Congress intended for § 1506 to be
construed consistent with the public policy exceptions found in other
contexts.226
Foreign courts consistently have noted the narrowness of a
public policy exception and emphasized that the standard required to
trigger it is high and infrequently met.227 For example, non-
bankruptcy courts have applied the public policy exception outside of

221. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
222. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
223. See supra notes 9, 171 and accompanying text (establishing that an analysis under §
1506 should not be reached when other provisions of Chapter 15 can serve as the basis to deny
relief).
224. See supra notes 82-86 and accompanying text (describing the legislative history of
Chapter 15 and the implementation of § 1506).
225. See supra notes 33-35 and accompanying text (discussing the Guide to Enactment’s
distinction between public policy as it applies to domestic affairs and public policy as it
applies to international affairs and its interpretation of the language of Article 6).
226. See supra notes 82-86 and accompanying text (describing the legislative history of
Chapter 15 and the implementation of § 1506).
227. See supra Part I.A(2)(iii) and accompanying text (providing an overview of how
non-US nations adopting the Model Law interpret public policy exceptions); see supra Part
I.C. (providing an overview of Courts’ interpretations of public policy exceptions outside of
bankruptcy law).
1628 FORDHAM INTERNATIONAL LAW JOURNAL [Vol. 38:1587

the bankruptcy context to deny enforcement of foreign judgments

where the judgment is incompatible with the Constitution of that
State, or where the judgment is inconsistent with basic notions of
morality and justice.228 It is clear from the rare occasions on which
public policy exceptions have been triggered, along with the broad
range of cases where courts have refused to invoke the public policy
exceptions, that the Public Policy Exception is truly an anomaly.229
That Congress and the drafters of the Model Law chose to
include identical language in § 1506 suggests that they recognized the
consistent basis on which this phrase has received narrow
interpretation in courts around the world.230 This usage clarifies the
intent to follow this previous narrow interpretation that is invoked
only in rare instances.231 On this basis, § 1506 should be narrowly
interpreted and only applied after careful consideration of the other
applicable sections of Chapter 15.

D. The General Purposes of Chapter 15 Similarly Require

Narrow Interpretation of § 1506
When enacting legislation to implement the Model Law,
Congress sought to provide an effective mechanism for dealing with
cross-border insolvency cases that promoted cooperation between US
and foreign courts, as well as greater legal certainty for trade and
investment.232 The purpose of Chapter 15 thus suggests that the Public
Policy Exception should be narrowly construed.
A broad interpretation of the public policy exception would lead
courts to regularly question the “fundamental” public policies of the
United States and assess whether these policies deviated from the
provisions of Chapter 15. This sort of balancing would, if conducted
too frequently, render the goal of a harmonized and predictable

228. See supra Part I.C. (providing examples of when non-bankruptcy courts have
denied foreign recognition outside of bankruptcy law).
229. See supra notes 114-17 (discussing the rare occasions when public policy
exceptions have been invoked).
230. See supra notes 33-35, 82-86 and accompanying text (describing the Guide to
Enactment’s interpretation of the language used in Article 6 and the legislative history of
Chapter 15).
231. See supra notes 33-35, 82-86 and accompanying text (describing the Guide to
Enactment’s interpretation of the language used in Article 6 and the legislative history of
Chapter 15).
232. See supra note 60 and accompanying text (discussing the purpose and scope of
application of Chapter 15).
2015] CROSS-BORDER INSOLVENCY 1629

framework impracticable.233 The framework provided in Part III.B

minimizes this possibility. Thus, such a framework is more likely to
produce results consistent with foreign courts’ judgments.

CONCLUSION
Most US courts have invoked § 1506 only in exceptional
circumstances concerning matters of fundamental importance.234 This
narrow interpretation is consistent with the language of § 1506, the
structure of Chapter 15 and its general purposes, as well as non-
bankruptcy courts’ construction of public policy exceptions found in
other areas of the law. A few US bankruptcy courts have chosen to
address public policy considerations when determining whether to
refuse recognition even when there are other grounds for refusal,
mainly under §§ 1522 or § 1507(b). These decisions should not be
relied upon. Their holdings under § 1506 involve are largely dicta;
moreover, these rulings improperly dilute the intended narrowness of
the public policy exception found in this provision.
Courts should not only construe § 1506 narrowly, they should
reach an analysis under § 1506 only if no other provision of Chapter
15 could be relied upon to deny relief. This approach is consistent
with the intent of the drafters of Chapter 15 and the Model Law and
minimizes the disruptive effect of more frequent invocations.

233. Model Law, supra note 1, art. 6 ¶ 88 (“international cooperation would be unduly
hampered if public policy would be understood in an extensive manner”).