One concept—“center of main interests,” or COMI for short, one of the more significant elements borrowed from international law and incorporated into Chapter 15 of the Bankruptcy Code—sits at the heart of the latter, enacted in 2005 as the latest U.S. legislative attempt to handle cross-border insolvencies and international restructurings.
In spite of this notion’s importance, however, bankruptcy and appellate federal courts have long divided over a thresholder issue: as of which date should a foreign debtor’s COMI be determined?
An apparent majority insists that only one day makes sense, legally, practically, even logistically: the one on which a petition for recognition of the foreign debtor’s already commenced non-U.S. insolvency was filed in a U.S. bankruptcy court.
Regarding this as happenstance, a substantial minority instead favors the date on which the relevant debtor’s foreign insolvency proceeding actually began, whenever and wherever that happened to be.
And, of course, a handful refuse to commit, instead preferring to make their pick on a case-by-case basis.
In an article entitled “Chapter 15’s Comi-Undrum: The Temporality of a Foreign Debtor’s True Nucleus,” Amir Shachmurove analyzed the merits and demerits of each side in light of Chapter 15's prose, purpose, and past.