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Copyright (c) 2005 American Bankruptcy Institute
American Bankruptcy Institute Law Review


Winter, 2005

13 Am. Bankr. Inst. L. Rev. 503





The assignment in this issue of the American Bankruptcy Institute Law Review is to follow the recent adoption of chapter 15 of the Bankruptcy Code with a discussion of some issue related to its provisions that has not been much discussed until now. In this article, we will address a complex issue that has not been addressed in section 304 or chapter 15: recognition in the United States of a foreign discharge. Before the corporate lawyers turn to the next article, let me emphasize that this article is primarily about the corporate discharge in a reorganization case. True reorganization cases have recently become the second wave of multinational filings under section 304 and will swell in number under chapter 15. 1 The chapter 11 discharge, and its equivalent in other jurisdictions, is at the core of the reorganization process. Thus, the cross-border effect of the discharge is a question of rising importance for both individual debtors and reorganized companies. Because we have no appellate authority concerning individual discharge, 2 the corporate discharge is the central subject of this article. We will first consider the present state of United States law as to recognition of foreign discharges and then list and briefly consider a whole series of questions that remain to be addressed, an agenda for research.

Neither section 304, which has been repealed by the 2005 amendments, nor our new chapter 15 addresses these issues. 3 Section 304 was a breakthrough when it was adopted in 1978, putting the ...
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