A church, its shell companies and a plan to have rapper Flo Rida plug high-end bubbly

The middleman was ecstatic. An American archbishop was not only looking to move some money offshore, he was looking to move all his finances abroad.

“He says he feels he can swing his council or synod to establishing his whole banking empire as he envisions it and he wants to set up also an insurance company, various offshore companies,” wrote Michael O’Mara in a Sept. 8. 2015, email to a London-based offshore services provider. “I am trying also to sell him some of the recent companies you sent me with bank accounts to act as his holding companies.”

It’s not every day that a church, enjoying tax-exempt status in the United States, is seen as a viable candidate to buy offshore shell companies with their own bank accounts, which can give the appearance of a longstanding business.

The COO of one of those church-affiliated offshore businesses at one time had reached out to none other than Flo Rida, the Miami-born rap artist, trying to swing a deal to have him invest in a brand of high-end champagne called Billionaires Row. Flo Rida’s lawyer said no and the plan fizzled. But more on that in a bit.

The email about the archbishop’s offshore shell companies is part of a giant leak of more than a million documents from Formations House, a London-based financial services firm with clients across the globe, including some in the United States.

Other leaked documents show that Archbishop Timothy Paul, the senior pastor of the Christian Cathedral in Springfield, Mass., purchased an official-looking insurance company, a Swedish investment trust and even a faux bank — one in name only — in Gambia.

In interviews, he acknowledged spending tens of thousands of church dollars on offshore companies — but says he never used the shell companies.

Emails show O’Mara, who works out of an English seaside hotel room on behalf of Mediterranean Corporate Services, tried to sell the archbishop on religious-sounding names for his offshore entities — names like Alliance Parish Banking Ltd. or Alliance Congregational Bank & Trust Co.

But the archbishop settled on Dominion Global Investment Capital Trust, serving as its president and taking the name, he said, from the book of Genesis.

Dominion Global had a COO, William Benson, a brash New Yorker with a love of the limelight and a trail of unhappy business associates. They describe Benson as a frequent name-dropper, who boasted of his relationship with an archbishop, with Flo Rida and with the socialite Paris Hilton.

Dominion Global wasn’t a bank of the conventional sort, with checking accounts, tellers and the like. Nor did it grant commercial loans to real-estate developers.

When McClatchy and the Miami Herald called to check its operational hours, the call was put through to a man with a thick New York accent who said it wasn’t “that kind of bank.” Anyways, he said, the bank itself is in London.

When a reporter visited the bank’s listed address in lower Manhattan, in a swank high-rise glass tower at 17 State Street, Suite 4000, on the Hudson River, that suite wasn’t an actual bank either.

The guard there pulled out clipped-together paperwork listing hundreds of companies that together share the suite’s office space under a flat monthly fee.

Two young women answer the phones, the guard offered, but there isn’t anyone else there. It was a virtual office, a fancy address that gives the aura of a real brick-and-mortar company.

PIERCING THE VEIL

The archbishop’s offshore business was among the intriguing narratives found in 10 years worth of Formations House records obtained by the anti-secrecy group Distributed Denial of Secrets and shared with investigative journalists, including those at McClatchy and the Miami Herald.

Journalists collaborated for months and on Dec. 4 began publishing under the #29Leaks hashtag, a reference to Formation House’s tony address at 29 Harley Street in London. Reporters found Iranian oil companies dodging sanctions, a Miami resident busted in a DEA sting and a plan for industrial-scale cannabis farming in Cameroon.

Formations House chief Charlotte Pawar said in emailed responses to questions that the leaked records were stolen and that she was subjected to extortion but did not provide evidence of that.

The leak, combined with the recent Panama Papers and Paradise Papers leaks, gives added momentum to legislation now in the U.S. Senate that would end anonymity by requiring greater disclosure of the true ownership of shell companies in the United States.

“99.99 percent of Americans don’t own offshore companies but the few that do try to tell you how legitimate it is,” said Edward H. Davis Jr., an asset-recovery lawyer with Sequor Law in Miami. “The reality is the entire offshore system is designed to avoid detection of the existence and movement of wealth.”

The Formations House leak adds a new wrinkle to the global debate, in part because it was based in London, not Panama or the faraway Seychelles, another haven for companies seeking tax avoidance. And it went beyond offering shell companies, but also faux banks that mimicked financial institutions but weren’t regulated or required to have a minimum amount of cash on hand.

These bank-named shells can issue loans, mortgages to their members and even credit cards as if they were a normal bank, according to promotional materials.

The Formations House documents provide insight into how these financial instruments are used. One email referenced a giant global gemstone wholesaler “sitting on a huge pile”, who sought three “banks” for internal operations, insisting on the humorous names Tightwad International Bank Ltd., Tightwad Bank International Co. Ltd. and Tightwad Global Bank Ltd.

SHELL COMPANIES FOR GOD

Archbishop Paul is not an archbishop in the Roman Catholic Church or the Anglican Church, the common associations with that rank of clergy. Paul said that 20 years ago he adopted the name of St. Paul when he was consecrated as an archbishop.

He leads a freestanding Christian denomination that voted him archbishop and patriarch of the International Holy Communion of Churches, which he said involves roughly 700 churches that together count 4.6 million followers. Like the Russian or Greek orthodox churches, he said, the denomination follows the original interpretations of the early apostles.

“We brought orthodoxy to African Americans,” he explained.

Until recently, Paul was also president of Epiphany Development Corp., which converted a historic Springfield building into a Holiday Inn Express.

Paul, 53, insisted there was nothing untoward about his church having offshore companies.

“We wanted to fund missions and do things,” he said, noting he hoped to expand the reach of his church. “They sell offshore banks, so we thought this was a legitimate means to have an offshore bank for our ministries that we were going to be project-funding for.”

The interest in going offshore began with an email solicitation, he said, and eventually the representative from Mediterranean Corporate Services came across the Atlantic to see him.

Paul said he has foreign outreach in Gambia, India, Kenya and Zambia. His church website makes no mention of this. Asked about specific projects, he offered that the Swedish investment trust was established for that purpose but has yet to invest in projects.

“That would be for the real-estate projects we’re going to do,” he said, suggesting they were raising capital to build a foreign supermarket. “It’s almost like a real-estate trust.”

The Swedish daily Dagens Nyheter, a #29Leaks partner, reported that Russian middlemen and Swedish offshore services providers had discovered and exploited a loophole in Sweden’s banking laws that gave the appearance that bank-named trusts were regulated when in fact those belonging to non-Swedes are not.

Swedish documents shared with McClatchy and the Miami Herald show Paul signing the trust registration on Feb. 20, 2017. He said he used another consultant called Global Money Consultants to create that company.

Paul also purchased a “bank” in Gambia, the smallest country on the African mainland but one with a large corruption problem, for years run by dictator Yahya Jammeh.

Formations House chief Charlotte Pawar’s late father, Nadeem Khan, had convinced Jammeh to create an enterprise zone, which allowed the London firm to fashion a line of business registering offshore companies there.

In an email to #29Leaks partners, O’Mara said he’d created more than 150 such banks in the Gambian offshore zone since 2013 for “wealthy families who want to handle their own finances.” The church doesn’t fit that description but O’Mara declined to discuss Paul’s offshore entities. Even though the Gambian enterprise zone was never fully authorized by the legislature there, banks sold for about $33,000 apiece today’s exchange rates, a price Paul didn’t dispute.

Archbishop Paul created Global Dominion, but insisted the related “bank,” Dominion Bank & Trust Company Ltd., was never used.

“We haven’t even operated from the Mediterranean Gambian license,” he said. “We paid a lot of money for it, but it was not something we used.”

He later established Dominion Bank and Trust Company in the tax haven of the Comoros Islands in the Indian Ocean between Mozambique and Madagascar. It too hasn’t been used, he said.

Paul purchased from Formations House a pre-existing shell company called Global Mortgages Ltd. British corporate registration documents show Paul as the main shareholder in 2017 but in 2018 and 2019 the company was threatened with dissolution.

Global Mortgages Ltd. was going to be used as a vehicle to purchase real estate in Africa, he said, but the shell company was abandoned.

“It was an idea that was kicked around” but never got off the ground, Paul said.

Also registered under Paul’s name in Gambia was Dominion International Insurance Company. The idea, he said, was to create a captive insurer ⁠— an insurance company controlled by the insured.

For larger companies, these are used to reduce costs by self-insuring a project while enjoying some tax breaks.

But the IRS last year warned taxpayers about so-called micro-captive structures, popular with wealth planners and offshore services providers that “lack many of the attributes of genuine insurance.”

Paul said his insurance company, referenced in the Swedish trust documents that he signed, was also never put into function.

“Since we didn’t use the bank, we didn’t need that,” he said.

BOLD CLAIMS

Paul’s public profile isn’t — or wasn’t — completely accurate. In a LinkedIn page, he claims to have a Ph.D in education from American University. The school has no record of that.

“My Ph.D is in street-ology,” he quipped when asked about the degree.

Why was it on his LinkedIn profile? Someone else did the page for him, he said, “when you become the patriarch, things like that happen.”

The LinkedIn references to a Ph.D in education and American University were subsequently removed.

On his relationship with William Benson, Paul said he tapped Benson for his expertise and insight, well after the efforts had begun to expand church operations abroad. They were introduced through a friend working on a project involving Liberia, he said.

Benson, 34, runs Billionaires Row, a champagne company that touts the high life. A seemingly strange bedfellow for an archbishop, Benson marketed a playboy image, boasted of his friendship with Hilton and associates say he claimed to have worked for Goldman Sachs. The investment bank has no record of Benson having worked there.

“We don’t have any involvement. I want to make that very clear. We don’t engage in any of those secular or non-humanitarian projects,” Paul said during a first interview together with Benson.

Speaking of Benson, Paul added, “His primary role with the trust was to offer his expertise and help us obtain the necessary funding.”

Funding that apparently did not happen, for use in offshore vehicles that were never actually used.

In a subsequent interview without Benson, Paul acknowledged that he was aware of complaints against Benson.

“We found that he didn’t work for Goldman Sachs. We found [that] he did not have the knowledge that he professed,” Paul said, adding that “we were the cleanest vehicle for him to attach himself.”

ENTER FLO RIDA

Flo Rida attorney Reginald Mathis confirmed that in November 2014 Benson and his Billionaires Row offered a deal. An ex-business associate familiar with the deal said it involved Flo Rida mentioning the imported champagne in a song and doing a promotional tour.

“Things just never seemed to check out,” said Mathis, adding that, “he tried to put something together in 2015 with the Super Bowl, which never materialized. Flo advised that he was given product at some point, but he hasn’t had contact with Benson in years.”

In an interview, Benson denied ever having extended a contract offer to Flo Rida or any other celebrity.

“We don’t need any artist to do a song. We have many celebrities that promote the brand for free,” he said, adding that no celebrity “has invested a dime in the company.”

The archbishop said he’d never heard of Flo Rida, whose real name is Tramar Lacel Dillard. The pitch to Flo Rida came before Benson got involved with Dominion. Paul said that he was unaware of Benson’s actions or his alleged outside sales pitches on behalf of Dominion to would-be investors.

But on July 17, the website www.bankdominion.com issued a warning that Benson had no authority to “represent or bind” Dominion Bank and Trust, Ltd.

“William Benson does not have authority to enter into contracts that bind the Dominion Bank and Trust, Ltd or create obligations on the part of the Dominion Bank and Trust, Ltd. without final approval of our compliance department,” read a notice on the home page. That page today is password protected.

Benson said in the interview that it was he who ended ties with Paul after first getting offered the job of CEO of Dominion Bank.

“I saw things that I didn’t want to be part of, so I stepped back,” he said, noting he broke with the archbishop last April or May. He declined to discuss what he saw that was worrisome and added he worked with Paul just for eight months and after the offshore entities were created. He also denied saying he worked at Goldman Sachs, noting he had worked at a division that was purchased by the giant bank.

Several people claim Benson ripped them off.

“He took $15,000 from me promising he could provide a lot of funding,” said Joseph Clarke, a real-estate investor and entrepreneur in Louisville, Kentucky, who hoped to develop a beachfront project in Honduras and mostly got a website and press release out of the effort.

That money, which he said disappeared in 2014, was part of a wrongful death settlement after the death of his son, Clarke said.

“It really left a bad taste in my mouth,” he said, adding, “I really wanted to see him fry.”

Benson denied anything improper, saying that “I sent him an invoice and he paid it. I don’t work for free.”

Jeremiah Patterson was stationed at Patrick Air Force Base near Cocoa Beach, Florida, when he was approached by Benson in 2013, who offered to invest in his prototype touch-screen technology.

“He made it sound like he was a big tycoon,” said Patterson, noting that “he did mention offshore accounting and how he was looking to be part of an international banking corporation.”

Patterson gave him a stake in the company, Taptl, in exchange for marketing and fundraising, and gave him a corporate American Express card. Soon afterward, Benson ran up the bills, he said, failing to even pay the card’s initiation fee.

“I didn’t end up losing as much money as some other folks but it did set my business back by a year and a half,” said Patterson, now stationed in Georgia. “Keep in mind, I am a psychological specialist for the Air Force. I put him through the ringers and he had me convinced. That’s not an easy thing to do.”

Benson denied running up credit card bills and provided an October 2014 Ohio court injunction against Patterson that prevented further disparagement. Patterson said his start-up couldn’t afford to appeal.

A South Florida man who fell out with Benson shared a 15-page application for a corporate account with Bank Dominion and an unsigned letter of credit from Dominion Global, with its London address, promising $1.5 million with a lending rate of 4 percent.

The man recalled briefly being introduced by phone to the archbishop in the middle of 2018, something Paul steadfastly denied.

“He hopped on one call, said ‘hi’ for a moment,’ he said. “When they said archbishop, I assumed they meant the Catholic Church.”

Emails viewed by McClatchy and the Herald show a New York FBI agent was made aware last summer of several complaints about Benson. An FBI spokesman in New York City declined to comment.

Told about that, Benson provided what he said was a video of a recently videotaped conversation with former U.N. Ambassador Nikki Haley at the United Nations, and said it showed he was not under a legal cloud.

To view the original article, click here.

Pooled BVI liquidations seek US recognition

The liquidators of three British Virgin Islands companies tied up in an alleged US$200 million fraud conducted by a former mayor of São Paulo have filed for US recognition, days after a local court authorised the pooling of their liquidations.

Grant Thornton director Matthew Richardson, who is joint liquidator alongside partner Kevin Hellard of BVI companies Durant International, Kildare Finance, and MacDoel Investment, filed for recognition of the three companies’ liquidations before the US Bankruptcy Court for the Southern District of Florida on 11 December.

Kildare and Durant have been in liquidation in the BVI since November 2017, and MacDoel since April of this year. The BVI High Court ordered the liquidations to be pooled on 5 December after finding the movement of monies between the three of them “would have no practical advantage”, in the first written ruling of its kind in the jurisdiction.

Richardson told the Florida court that the three companies had “no legitimate purpose” and were nothing more than vehicles to launder the proceeds of “wide-scale frauds” allegedly committed against the city of São Paulo by their controller, the city’s former mayor Paulo Maluf and members of his family.

Maluf, a right-wing populist and member of Brazil’s Progessives party, served as mayor from 1969 to 1971 and 1993 to 1997. He is now under house arrest after being convicted of fraud in 2017 and sentenced to seven years’ imprisonment.

It is alleged that during his latter term around US$200 million was misappropriated from public funds through “bribes, secret commissions and other fraudulent payments” in connection with the construction of the city’s Avenida Agua Espraiada, which divides the districts of Itaim Bibi and Campo Belo. The boulevard is now known as Avenida Jornalista Roberto Marinho following a 2003 renaming.

Richardson says Brazilian authorities became aware of the fraud in 1999 when they received inquiries from police in Jersey after the submission of a suspicious transaction report to the island territory’s money laundering authorities.

The governments of Brazil and São Paulo sought to prove the fraud in the Jersey courts by reference to a month’s sample of transactions flowing through Kildare and Durant. Based on those samples the Royal Court of Jersey found a constructive trust for US$10.5 million against the companies in 2012, and then the following year gave judgment against them for US$28.3 million in favour of the governments.

Although the governments recovered US$3.44 million from Kildare and Durant’s Jersey accounts, the companies made no attempt to pay the balance, leading the governments to seek the appointment of liquidators in the BVI.

Richardson said MacDoel had also played a role in the fraud as a conduit for funds, identifying just over US$4 million in Kildare’s books that it had paid to the company without consideration or evidence of repayment. The pair obtained MacDoel’s liquidation after it failed to pay a statutory demand for that amount in April.

But Richardson said the money from the Jersey judgment “represents only a very small part of the total funds derived from the fraud”, because the judgment reflected only one month’s worth of transactions. He said the total amount of money derived from the frauds was “in the region of US$200 million” and claims against the three estates amount to at least US$172 million.

He said he was as yet unable to determine the total value or location of the companies’ assets, but said he had learned they “may be concealed in the United States” and foreign tax havens, under the names of Maluf’s relatives.

Richardson said he hopes to make recoveries by asserting proprietary claims in the US and possibly by bringing tracing claims against third parties.

In the US Bankruptcy Court for the Southern District of Florida

In re Durant International Corp (19-26542)

In re Kildare Finance Ltd (19-26545)

In re MacDoel Investment Ltd (19-26547)

Counsel to Grant Thornton

  • Sequor Law

Partner Gregory Grossman in Miami

In the High Court of Justice of the British Virgin Islands, Commercial Division

In the matter of Durant International Corp (in liquidation); and in the matter of Kildare Finance Ltd (in liquidation); and in the matter of MacDoel Investment Ltd (in liquidation)

• Justice Adrian Jack

Joint liquidators of Durant, Kildare and MacDoel

• Grant Thornton

Partner Kevin Hellard in London and director Matthew Richardson in the British Virgin Islands

Counsel to the joint liquidators

• Maples and Calder

Partner Alex Hall Taylor, of counsel David Welford and associate Scott Tolliss in the British Virgin Islands

To view the original article, click here.

Asset recovery column: The mechanics of the UNCITRAL Model Law on Enterprise Group Insolvency

Sequor Law shareholder Leyza Blanco and attorney Raul Torrao in Miami discuss the United Nations Commission on International Trade Law (UNCITRAL)’s newly approved Model Law on Enterprise Group Insolvency.

Purpose

The model law, approved in July 2019, is a new legal framework designed to address domestic and cross-border insolvency cases involving multiple debtors that are members of the same enterprise group.

Though it provides innovative tools to address the specific needs of proceedings involving enterprise groups, its practical use will be revealed throughout the next years by its implementation and actual application by the courts of states that adopt the model law.

UNCITRAL developed the Model Law on Enterprise Group Insolvency to fill a void left by the 1997 Model Law on Cross-Border Insolvency, with respect to the administration of multiple insolvency proceedings affecting different members of an enterprise group located in multiple jurisdictions. Indeed, in today’s global economy, the operations of the members of some enterprise groups are so interconnected and span so many  jurisdictions that the group can only be appropriately reorganised or liquidated if there is a plan that embraces the whole group – or at least the part of the group that is affected by the insolvency proceedings.

Both model laws provide for the cooperation of courts presiding over cross-border insolvency cases, although each applies in a different context. The Model Law on Cross-Border Insolvency focuses on single debtor insolvency proceedings, while the Model Law on Enterprise Group Insolvency is designed to address the specific needs of insolvency proceedings that involve multiple debtors that are members of the same enterprise group in different jurisdictions.

Concepts

To address such specific needs, the Model Law on Enterprise Group Insolvency provides directives on coordination and cooperation between courts and among insolvency representatives, development of a group insolvency solution for the whole enterprise group or part of it in a single planning proceeding, appointment of a single representative to coordinate the development of a group insolvency solution, and voluntary participation of enterprise group members in the planning proceeding regardless of whether they are affected by the insolvency of part of the enterprise group.

It also includes directives on access by foreign courts and insolvency representatives to the planning proceeding, cross-border recognition of foreign planning proceedings, and measures to minimize the commencement of non-main and main proceedings through the equal treatment of claims in a foreign main proceeding in an adopting jurisdiction.

The Model Law on Enterprise Group Insolvency uses some nomenclature and definitions from the Model Law on Cross-Border Insolvency, such as what is a main proceeding, a non-main proceeding, and the center of main interest (COMI) of a debtor. In addition, the Model Law on Enterprise Group Insolvency contains several articles similar to the Model Law on Cross-Border Insolvency, especially in the chapters regarding the cooperation and coordination between courts and among insolvency representatives and in the chapters that provide for the recognition of a foreign proceeding.

Among the new concepts introduced by the Model Law on Enterprise Group Insolvency, the “group insolvency solution” is one of the most relevant ones. Article 2(f) of the model law broadly defines a group insolvency solution as “a proposal or set of proposals developed in a planning proceeding for the reorganization, sale or liquidation of some or all of the assets and operations of one or more enterprise group members, with the goal of protecting, preserving, realizing or enhancing the overall combined value of those enterprise group members.”

The draft guide of enactment of the model law clarifies that the term is intended to be a flexible concept, that can be tailored to address the specific circumstances of the enterprise group, such as its structure, business model, degree and type of integration between enterprise group members and other factors.

The group insolvency solution is developed in a “planning proceeding,” which is an insolvency proceeding commenced with respect to an enterprise group member that meets certain criteria. It must be a main proceeding taking place in the jurisdiction where an enterprise group member debtor has the COMI, in which the enterprise group member likely is a necessary and integral participant of the solution (although the concept is still undefined). It must include the voluntary participation of enterprise group members for the development of a group insolvency solution (although they may opt out at any point), and include the  appointment of a group representative, which may be the same person as the insolvency representative appointed in the main proceeding or a different person.

Once a planning proceeding is established, the group representative may seek relief from the court that is either needed to preserve the possibility of developing or implementing a group insolvency solution, or  to protect, preserve, realize, or enhance the value of assets of an enterprise group member subject to or participating in a planning proceeding or the interests of the creditors of such enterprise group member.

Relief

The model law provides for a non-exhaustive list of relief that are typically granted in insolvency proceedings. This includes empowering the group representative to seek recognition of the planning proceeding in other jurisdictions and seek any relief available to support the development and implementation of a group insolvency solution, as well as seek to participate in foreign proceedings relating to an enterprise group member regardless of whether the latter is participating in the planning proceeding.

Despite the model law’s aim to centralize an enterprise group’s insolvency proceeding, nothing in the model law prevents more than one planning proceeding from being established. Obviously, the immoderate commencement of multiple planning proceedings would destroy the purpose of having a centralized proceeding where all parties can meet and develop a group insolvency solution. However, the special circumstances driven by the way enterprise groups are structured might justify the exceptional establishment of more than one planning proceeding to obtain the proper insolvency solution for the group.

To aid its goal of centralizing and streamlining insolvency proceedings of members of an enterprise group, the model law also provides a mechanism to minimize the commencement of non-main proceedings in other jurisdictions. A creditor of any enterprise group member may choose to bring its claim directly in the main proceeding commenced in a jurisdiction that adopted the model law. The claim will be treated in the main proceeding in accordance with the treatment it would be accorded in its original jurisdiction; that is, the foreign claim will receive the same distribution and priority rights in the main proceeding as it would receive in its original jurisdiction.

To accomplish such treatment of claims, the claim treatment must: be presented by the insolvency representative appointed in the main proceeding – or jointly by the insolvency representative and the group representative; meet any additional formal requirements established by the jurisdiction of the main proceeding; and be approved by the court of the main proceeding. Once the claim treatment is approved, it is enforceable and binding on the insolvency estate of the main proceeding, this way protecting the creditor of the foreign claim.

In addition to the above described mechanism, the model law allows the court of the foreign forum where the creditor could have brought the aforementioned foreign claim to approve the treatment accorded in the main proceeding and to stay any non-main proceedings already commenced or to decline the commencement of new non-main proceedings. The effect of this implementation is that creditors of similar foreign claims may only file such foreign claims before the court of the main proceeding. This measure is not mandatory and it is the option of the court of the original jurisdiction of the foreign claim to use such tool.

The model law also provides for this undertaking on the treatment of foreign claims and the possibility of the court to stay or decline to commence a new insolvency proceeding also in relation to a main proceeding. In other words, creditors of a claim that may be brought in a main proceeding in one jurisdiction also have the option to file the claim in another main proceeding affecting one of the enterprise group members in another jurisdiction that adopted the model law, and courts of the first jurisdiction may approve the undertaking on the treatment of that claim and stay or decline to commence a main proceeding.

This measure is counter intuitive and is inconsistent with the expectations of creditors, the enterprise group members, and third parties that expect that insolvency proceedings should be conducted in the jurisdiction where the COMI of the enterprise group is located. Thus, the draft guide to enactment of the model law advises that such measure should only be taken in exceptional circumstances, specifically when the efficiency benefits largely outweigh the negative effects on the creditors’ expectations. The provisions that refer to minimizing the commencement of main proceedings are located in part B of the model law, and are available for adoption by jurisdictions that want to take this extra step on the centralization of cross-border insolvency proceedings.

It is important to note that the Model Law on Enterprise Group Insolvency is not a workaround from the formalities of the insolvency laws of the adopting jurisdiction. The fact that a planning proceeding may address the reorganization or liquidation of a participating enterprise group member does not grant unrestrictive access by creditors to the assets of that enterprise group member.

Under the model law, relief in the planning proceeding may not be granted with respect to the assets of participating enterprise group members if the entity is not subject to an insolvency proceeding under the forum’s applicable laws, unless the reason that such proceeding has not commenced was for the purpose of minimizing the commencement of insolvency proceedings in accordance with the Model Law. In addition, if the participating enterprise group member has its COMI in another jurisdiction, relief will only be granted in the jurisdiction that adopted the model law if it does not interfere with the administration of insolvency proceedings taking place in other jurisdictions.

Impact

The framework presented by the Model Law on Enterprise Group Insolvency not only creates new legal tools for specific insolvency cases, but also creates a new international cooperation system to enhance the insolvency proceedings of an enterprise group. Though issues regarding the jurisdiction and the power of courts may be minimized in a single-debtor cross-border insolvency case under the Model Law on Cross-Border Insolvency, such issues are more prevalent when members of an enterprise group are subject to insolvency proceedings in different jurisdictions.

Indeed, in a multi-debtor cross-border insolvency case under the Model Law on Enterprise Group Insolvency, several issues regarding the jurisdictional power of the courts involved are likely to arise. This is because there are potentially multiple main proceedings, each located in a different jurisdiction, and only one – or a few – of them can be qualified as a planning proceeding for the development of a group solution, which will determinate the outcome of the insolvency proceedings.

It is unclear if the Model Law on Enterprise Group Insolvency’s cooperation system will only be useful if all jurisdictions involved have adopted its text. With regard to the Model Law on Cross-Border Insolvency, generally only the jurisdiction of the court that is providing assistance to the foreign proceeding must have adopted it in order for that cooperation system to work.

On the other hand, the cooperation between courts of different jurisdictions in a group insolvency case might not work if one of the involved jurisdictions has not adopted the Model Law on Enterprise Group Insolvency. It is possible that jurisdictions that do not adopt provisions relating to centralized planning proceedings will be reluctant to defer their jurisdiction over an insolvency proceeding involving an enterprise group member to another jurisdiction.

Hopefully, jurisdictions will see the benefits of having a group insolvency solution for maintaining or adding value to the whole group, or even to the group members that are affected by the insolvency proceeding in that jurisdiction, and utilize the new tools provided by the new model law.

To view the original article, click here.