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.
Michael A. Garza,
When is Cross-Border Insolvency Recognition Manifestly Contrary to Public Policy,
38 Fordham Int'l L.J. 1587
Available at: https://ir.lawnet.fordham.edu/ilj/vol38/iss5/7