The ability to avoid fraudulent or preferential transfers is a fundamental part of U.S. bankruptcy law. However, when a transfer by a U.S. entity takes place outside the U.S. to a non-U.S. transferee—as is increasingly common in the global economy—courts disagree as to whether the Bankruptcy Code’s avoidance provisions apply extraterritorially to avoid the transfer and recover the transferred assets. A pair of bankruptcy court rulings handed down in 2017 widened a rift among the courts on this issue.

In Spizz v. Goldfarb Seligman & Co. (In re Ampal-Am. Israel Corp.), 562 B.R. 601 (Bankr. S.D.N.Y. 2017)—discussed in the March/April 2017 edition of the Business Restructuring Review—the court, disagreeing with other courts both within and outside its own district, ruled that the avoidance provisions of the Bankruptcy Code do not apply outside the U.S. because, on the basis of the language and context of the provisions, Congress did not intend for them to apply extraterritorially. More recently, in Emerald Capital Advisors Corp. v. Bayerische Motoren Werke Aktiengesellschaft (In re FAH Liquidating Corp.), 2017 BL 200517 (Bankr. D. Del. June 13, 2017), the court held to the contrary. It ruled that Congress intended section 548 of the Bankruptcy Code (permitting avoidance of fraudulent transfers) to apply extraterritorially and that a liquidating trustee’s avoidance claims under section 544(b) must be dismissed because they were governed by German law.

The Presumption Against Extraterritoriality

"It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ " EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). This "presumption against extraterritoriality" is a judicially developed rule of statutory construction whereby federal law is presumed not to apply to conduct or property outside the United States "unless a contrary intent appears." Morrison v. National Australia Bank Ltd., 561 U.S. 247, 255 (2010). In Smith v. United States, 507 U.S. 197, 204 n.5 (1993), the U.S. Supreme Court explained that this presumption is at least partially "the commonsense notion that Congress generally legislates with domestic concerns in mind." The presumption also "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." Arabian American, 499 U.S. at 248 (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 20–22 (1963)).

Contrary intent is shown through "clear evidence," in either the statutory text or the "legislative purpose underlying it." Id. at 204. However, a law need not explicitly state that "this law applies abroad" to have extraterritorial effect, and context is relevant to infer the statute’s meaning. Morrison, 561 U.S. at 255.

In Morrison and RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090 (2010), the Supreme Court outlined a two-step approach to determining whether the presumption against extraterritoriality forecloses a claim. First, the court examines "whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially." Nabisco, 136 S. Ct. at 2101; accord Morrison, 561 U.S. at 255. If the conclusion is that the presumption has been rebutted, the inquiry ends.

If not, the court must determine whether the case involves a domestic application of the statute by examining its "focus." If the conduct relevant to that focus occurred in the U.S., "the case involves a permissible domestic application even if other conduct occurred abroad." Id.; accord Morrison, 561 U.S. at 266–67. However, if the conduct relevant to the focus of the statute did not occur in the U.S., "the case involves an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory." Id.; accord Societe Generale plc v. Maxwell Commc’n Corp. plc (In re Maxwell Commc’n Corp. plc), 186 B.R. 807, 816 (S.D.N.Y. 1995) ("Maxwell I"), aff’d on other grounds, 93 F.3d 1036 (2d Cir. 1996) ("Maxwell II").

Most courts have adopted a flexible approach in determining whether a transaction is extraterritorial. Many apply a "center of gravity" test, whereby the court examines the facts of the case to ascertain whether they have a center of gravity outside the U.S. See, e.g., French v. Liebmann (In re French), 440 F.3d 145, 149 (4th Cir. 2006), cert. denied, 549 U.S. 815 (2006); In re Florsheim Group Inc., 336 B.R. 126, 130 (Bankr. N.D. Ill. 2005). This analysis may involve consideration of "all component events of the transfer[]," Maxwell I, 186 B.R. at 816, such as "whether the participants, acts, targets, and effects involved in the transaction at issue are primarily foreign or primarily domestic." French, 440 F.3d at 150.

Extraterritorial Operation of U.S. Bankruptcy Law?

In certain respects, U.S. bankruptcy law has explicitly applied extraterritorially for more than 60 years. In 1952, due to confusion about the scope of a debtor’s property to be administered by a bankruptcy trustee under the Bankruptcy Act of 1898, Congress inserted the phrase "wherever located" into section 70a of the act "to make clear that a trustee in bankruptcy is vested with the title of the bankrupt in property which is located without, as well as within, the United States." H.R. Rep. No. 82-2320, at 15 (1952), reprinted in 1952 U.S.C.C.A.N. 1960, 1976; see also Pub. L. No. 82-456, 66 Stat. 420 (July 7, 1952). This language was preserved in section 541(a) of the Bankruptcy Code (enacted in 1978), which states that the bankruptcy estate includes the debtor’s property "wherever located and by whomever held." Section 541(a) provides further that such property includes various "interests" of the debtor in property. Similarly, 28 U.S.C. § 1334(e) gives federal district courts—and, by jurisdictional grant pursuant to 28 U.S.C. § 157(a), bankruptcy courts within each district—exclusive jurisdiction of all property of the debtor and its estate, "wherever located."

Many courts have concluded that, because the automatic stay imposed by section 362(a) of the Bankruptcy Code expressly prohibits, among other things, acts to obtain possession of "property of the estate," the stay bars creditor collection efforts with respect to estate property located both within and outside the U.S. See, e.g., Milbank v. Philips Lighting Elecs. N. Am. (In re Elcoteq, Inc.), 521 B.R. 189 (Bankr. N.D. Tex. 2014); In re Nakash, 190 B.R. 763 (Bankr. S.D.N.Y. 1996).

However, the provisions of the Bankruptcy Code permitting avoidance and recovery of preferential or fraudulent transfers—e.g., sections 544, 547, 548, and 550—do not expressly refer to "property of the estate" as that term is defined in section 541 or even to section 541 itself. Instead, section 544 permits the trustee to avoid certain transfers of "property of the debtor" or interests of the "debtor in property"; sections 547(b) and 548(a)(1) provide for the avoidance of "an interest of the debtor in property"; and section 550 permits the trustee to recover "the property transferred" or its value from the transferee.

Furthermore, some courts, noting that section 541(a)(3) of the Bankruptcy Code provides that any "interest in property that the trustee recovers under section . . . 550" is part of the estate, have concluded that fraudulently or preferentially transferred property is not estate property unless and until it is recovered by the trustee. See, e.g., FDIC v. Hirsch (In re Colonial Realty Co.), 980 F.2d 125 (2d Cir. 1992) (if property that has been fraudulently transferred is included in "property of the estate" under section 541(a)(1), section 541(a)(3) is rendered meaningless with respect to property recovered pursuant to fraudulent transfer actions); accord Rajala v. Gardner, 709 F.3d 1031 (10th Cir. 2013). But see Am. Nat’l Bank of Austin v. MortgageAmerica Corp. (In re MortgageAmerica Corp.), 714 F.2d 1266, 1277 (5th Cir. 1983) ("[p]roperty fraudulently conveyed and recoverable under the Texas Fraudulent Transfers Act remains, despite the purported transfer, property of the estate within the meaning of section 541(a)(1)").

The different language used in the avoidance provisions, on the one hand, and the statutory jurisdictional grant and the definition of "estate property," on the other, has created confusion in the courts as to whether the avoidance provisions were intended by Congress to apply to property outside the U.S.

Recent Decisions Addressing Extraterritoriality of Avoidance Provisions

Prior to Morrison, the courts in Maxwell I, Maxwell II, French, and Barclay v. Swiss Fin. Corp. Ltd. (In re Bankr. Estate of Midland Euro Exch. Inc.), 347 B.R. 708 (Bankr. C.D. Cal. 2006), addressed whether the Bankruptcy Code’s avoidance provisions apply extraterritorially. In Maxwell I, the district court ruled that Congress did not clearly express its intention, in statutory language or elsewhere, for section 547 to empower a trustee to avoid foreign preferential transfers. The U.S. Court of Appeals for the Second Circuit affirmed, but on the separate basis that, under principles of international comity, the U.S. court must defer to the courts and laws of the U.K., and U.S. avoidance and recovery provisions should not apply to the transfers at issue. See Maxwell II, 93 F.3d at 1054–55.

The U.S. Court of Appeals for the Fourth Circuit held to the contrary in French. Agreeing with an argument rejected in Maxwell I, the Fourth Circuit held that it need not decide whether the transfer of a Bahamian residence was extraterritorial because "Congress made manifest its intent that § 548 apply to all property that, absent a prepetition transfer, would have been property of the estate, wherever that property is located." By incorporating the language of section 541 to define what property a trustee may recover, the Fourth Circuit wrote, section 548 "plainly allows a trustee to avoid any transfer of property that would have been ‘property of the estate’ prior to the transfer in question—as defined by § 541—even if that property is not ‘property of the estate’ now."

The Fourth Circuit cited Begier v. IRS, 496 U.S. 53 (1990), in support of its conclusion that Congress intended section 548 to apply extraterritorially. The issue in Begier was not extraterritorial application of U.S. avoidance law, but whether property preferentially transferred was "property of the debtor" at the time of the transfer. As noted previously, section 541(a) defines "property of the estate," and section 547(b) authorizes the trustee to avoid transfers of "an interest of the debtor in property," but the Bankruptcy Code does not define the latter.

According to the Supreme Court in Begier, "property of the debtor," the transfer of which is subject to avoidance under section 547(b), "is best understood as that property that would have been part of the estate had it not been transferred" pre-bankruptcy. Id. at 58–59. The Court looked for guidance to section 541. In delineating the scope of "property of the estate," the Court wrote, section 541 "serves as the postpetition analog to § 547(b)’s ‘property of the debtor.’ " Id. It ruled that because property held by the debtor in trust is neither "property of the estate" under section 541 nor "property of the debtor" for purposes of section 547(b), a chapter 7 trustee could not avoid a transfer of such property held in trust as a preference.

In Midland Euro, the bankruptcy court considered whether section 548 could be used to avoid a transfer by a Barbados corporation to an English company of funds from an English bank through a U.S. bank to another English bank. Stating that in French, the Fourth Circuit "totally ignores § 541(a)(3) and uses an unclear and convoluted method to reach its conclusion," the Midland Euro court ruled that it could "find no basis for holding that Congress intended the trustee’s avoiding powers to apply extraterritorially." 347 B.R. at 719. The court also held that allegedly fraudulent transfers do not become property of the estate until they are avoided.

At least five courts since Morrison have addressed the extraterritoriality of the Bankruptcy Code’s avoidance and recovery provisions. In Picard v. Bureau of Labor Ins. (In re Bernard L. Madoff Inv. Sec. LLC), 480 B.R. 501 (Bankr. S.D.N.Y. 2012) ("BLI"), the bankruptcy court applied the two-step analysis required by Morrison to determine whether a trustee could recover redemption payments under section 550 that were made to the New York and London accounts of a Taiwanese entity. The court ruled that, because the initial transfers of the debtor’s assets had occurred in New York, the trustee was not seeking extraterritorial application of section 550. The court also concluded in dicta that "Congress demonstrated its clear intent for the extraterritorial application of Section 550 through interweaving terminology and cross-references to relevant Code provisions," including sections 541 and 548 and 28 U.S.C. § 1334(e)(1). Id. at 527. According to the court, "[T]he concepts of ‘property of the estate’ and ‘property of the debtor’ are the same, separated only by time." Id.

The district court reached the opposite conclusion in S.I.P.C. v. Bernard L. Madoff Inv. Sec. LLC, 513 B.R. 222 (S.D.N.Y. 2014) ("Madoff"). In ruling that section 550 does not apply extraterritorially, the court wrote:

Under the logic of Colonial Realty, whether "property of the estate" includes property "wherever located" is irrelevant to the instant inquiry: fraudulently transferred property becomes property of the estate only after it has been recovered by the Trustee, so section 541 cannot supply any extraterritorial authority that the avoidance and recovery provisions lack on their own.

513 B.R. at 230.

In Weisfelner v. Blavatnik (In re Lyondell), 543 B.R. 127 (Bankr. S.D.N.Y. 2016), the bankruptcy court refused to dismiss a claim seeking avoidance of a fraudulent transfer under section 548 on the ground that the challenged transfer occurred outside the U.S. The court reasoned that Congress could not have intended to exclude extraterritorial transfers from avoidance under section 548 while explicitly defining "property of the bankruptcy estate" under section 541 to include all of the debtor’s property "wherever located and by whomever held."

Persuaded by the reasoning in French, the court distinguished the case before it from Colonial Realty. In Colonial Realty, the Lyondell court explained, the Second Circuit’s recognition that sections 541(a)(1) and (a)(3) "were speaking as of different times" fell "far short of holding that property not in the estate as of the commencement of the case cannot be brought into the estate because it is in a foreign locale." The Lyondell court held that Congress could not have intended for property anywhere in the world to enter the bankruptcy estate once recovered pursuant to the avoidance powers while simultaneously not intending for such powers to reach anywhere in the world.

In Ampal-American, the bankruptcy court agreed with Madoff and Maxwell I that the avoidance provisions of the Bankruptcy Code, including section 547(b), do not apply extraterritorially. According to the court, "Property transferred to a third party prior to bankruptcy . . . is neither property of the estate nor property of the debtor at the time the bankruptcy case is commenced, the only two categories of property mentioned in Bankruptcy Code § 541(a)(1)." The court also wrote that "the Begier Court’s conclusion that ‘property of the debtor’ is best understood as property that would have become ‘property of the estate’ but for the transfer does not support the French and BLI courts’ interpretation of section 548." In Begier, the court explained, the Supreme Court read section 541(a) "as a limitation on the trustee’s avoiding powers, not as an expansion of those powers."

The Ampal-American court noted that, although some provisions of the Bankruptcy Code and corresponding jurisdictional statutes, such as section 541(a) and 28 U.S.C. § 1334(e)(1), contain clear statements that they apply extraterritorially, section 547 does not—nor, it added in a footnote, does section 548. Because the transfer at issue occurred outside the U.S., the court ruled that it could not be avoided by the trustee.

FAH Liquidating

Electric vehicle manufacturer Fisker Automotive Holdings, Inc., and Fisker Automotive, Inc. (collectively, "Fisker") filed for chapter 11 protection in November 2013 in the District of Delaware. Prior to filing for bankruptcy, Fisker entered into supply and service agreements (the "Agreements") with Bayerische Motoren Werke Aktiengesellschaft ("BMW"), a German corporation headquartered in Munich. The Agreements were expressly governed by German law and included a German forum selection clause. From June 2011 through April 2012, Fisker made wire transfers to BMW under the Agreements aggregating approximately $32.5 million.

The bankruptcy court authorized Fisker to sell substantially all of its assets under a liquidating chapter 11 plan that the court confirmed in July 2014. The plan assigned the estate’s potential causes of action to a liquidating trust.

The liquidating trustee sued BMW, alleging that BMW did not manufacture or deliver any engines to Fisker under the Agreements or otherwise provide value to Fisker in exchange for the $32.5 million in wire transfers. In its complaint, the trustee sought, among other things, to avoid and recover the wire transfers as constructively fraudulent transfers under sections 544, 548, and 550 of the Bankruptcy Code. BMW moved to dismiss the complaint, arguing, among other things, that the wire transfers were extraterritorial and could not be avoided.

The bankruptcy court granted the motion to dismiss in part and denied it in part.

Initially, adopting the reasoning of Lyondell, the FAH Liquidating court found that, although the wire transfers were extraterritorial, the presumption against extraterritoriality did not prevent the trustee’s use of section 548 to avoid the transfers because Congress intended for the provision to apply extraterritorially.

The court found that the "center of gravity" for the transfers was Germany, observing that "[t]he most compelling facts showing domestic activity—that the transfers originated in the United States from a Delaware corporation—are insufficient to overcome the primarily foreign nature of the Agreements." In particular, the court explained, the Agreements provided for milestones to be achieved at BMW’s factory in Germany, mandated the resolution of disputes in Germany under German law, and required payment in euros.

Having concluded that the challenged transfers were extraterritorial, the court ruled that the presumption against extraterritoriality with respect to section 548 was overcome because Congress intended the provision to "reach such foreign transfers." On this point, the FAH Liquidating court agreed with the courts’ reasoning in Lyondell and French.

The court then examined the sufficiency of the trustee’s allegations in the complaint with respect to, among other things, constructive fraudulent transfer under sections 548 and 544(b). It concluded that because wire transfers amounting to approximately $31.7 million had been made more than two years (the look-back period specified in section 548) before Fisker filed for bankruptcy, the complaint stated a valid claim for avoidance of no more than approximately $800,000.

The court further held that German law, rather than the Uniform Fraudulent Transfer Act, as enacted in either California or Delaware, governed the trustee’s avoidance claims under section 544(b) because: (i) the Agreements contained a German choice of law and forum selection clause; (ii) the parties "centered their relationship under the Agreements" at BMW’s factory in Germany; and (iii) the wire transfers originated from the U.S., but were received in Germany, in euros. According to the court, these factors were not countervailed by Fisker’s incorporation in Delaware and its California headquarters or by the fact that most of the creditors harmed by the transfers were within the U.S.

Because the trustee and BMW stipulated that the trustee would not have a remedy to avoid the transfers under section 544(b) if German law applied, the court dismissed the section 544(b) claim.

Outlook

FAH Liquidating further muddies the waters on an issue that has become increasingly prominent as the volume of cross-border bankruptcy cases continues to grow. The split on this issue exists not merely between courts in different jurisdictions, but also between courts in the Southern District of New York, where the majority of cross-border bankruptcy cases have traditionally been filed. As things stand, the courts in Ampal-American, Madoff, Midland Euro, and Maxwell I have ruled that the Bankruptcy Code’s avoidance provisions do not apply extraterritorially. The courts in FAH Liquidating, Lyondell, BLI, and French—the only circuit court of appeals decision on this issue—have ruled to the contrary.

Without the ability to avoid transfers by U.S. debtors to non-U.S. entities under U.S. law, the only recourse available to many bankruptcy trustees, chapter 11 debtors-in-possession, or other representatives of U.S. debtors (such as chapter 11 plan trustees or the representative of a U.S. debtor in a case filed in another country that has enacted the UNCITRAL Model Law on Cross-Border Insolvency) would likely be litigation abroad to seek avoidance and recovery of transferred property under foreign law. But see Hosking v. TPG Capital Mgmt., L.P. (In re Hellas Telecomms. (Luxembourg) II SCA), 535 B.R. 543 (Bankr. S.D.N.Y. 2015) (in a chapter 15 case, even though U.K. law governed actual fraudulent transfer claims asserted by the liquidators of a foreign debtor, a U.S. bankruptcy court has jurisdiction to adjudicate the claims applying U.K. law). However, relatively few countries other than the U.S. have enacted such laws. This means that non-U.S. transferees are in many cases effectively insulated from avoidance liability.

Failing congressional action, the Second Circuit could resolve the uncertainty on this issue at least in the Southern District of New York by definitively ruling one way or another. However, even if the Second Circuit were to hold that the Bankruptcy Code’s avoidance provisions apply extraterritorially, practical problems would remain. For example, a U.S. court may lack personal jurisdiction over a non-U.S. transferee, a fact that would significantly complicate efforts to enforce any avoidance ruling. See Lyondell, 543 B.R. at 147 (concluding that a litigation trustee in a chapter 11 case failed to make a prima facie case for the court’s exercise of personal jurisdiction consistent with due process over a foreign transferee in avoidance litigation).