The increase in cross-border transactions is sure to increase the frequency with which trustees in bankruptcy will face disputes with non-U.S. persons. The resulting cross-border litigation may be as simple as objecting to a non-U.S. creditor’s proof of claim or as complicated as suing a non-U.S. person to recover damages for breach of contract or the proceeds of a pre-bankruptcy transfer.
This article, based on a presentation made by the author at the Annual Conference of the National Association of Bankruptcy Trustees in Sanibel Island in August 2018, identifies and discusses the following important factors trustees should consider before seeking relief in a U.S. court against non-U.S. persons: (1) how will the trustee accomplish service outside the U.S.? (2) how will the trustee establish that the U.S. court has personal jurisdiction over the non-U.S. person? (3) if desired, how will the trustee establish that U.S. law applies to resolution of the dispute? (4) how will the trustee conduct discovery needed outside the U.S. and admit the results at trial?, and (5) how will the trustee enforce a judgment if the non-U.S. person lacks assets in the U.S.? Read Full Article