Directors under Chapter 11 proceedings are ‘foreign representatives’ under CBIR 2006.
19 Entertainment Limited (the Company) is a company incorporated in England and is part of the CORE Entertainment group of companies which produces programmes such as American Idol. The directors of the Company commenced Chapter 11 proceedings in the US as part of a wider restructuring of the CORE group on the basis that its COMI was in the US and not the UK. The Chapter 11 proceeding did not, however, involve the appointment of a trustee and the directors retained control of the Company (i.e. it was a debtor in possession proceeding).
The directors applied to the High Court for recognition of the Chapter 11 as foreign proceedings under the CBIR and for discretionary relief equivalent to the moratorium relief for English administrators (as a creditor had served the Company with a statutory demand).
The court accepted that COMI was in the US and granted recognition of the Chapter 11 proceedings on the basis that it was a foreign proceeding and the directors were foreign representatives. A stay equivalent to an English law moratorium was also granted to the Company by way of discretionary relief.
This judgment confirms, seemingly for the first time, that where directors retain control under a Chapter 11 proceeding, they will constitute ‘foreign representatives’ for the purpose of the CBIR.