§ 304. Cases Ancillary to Foreign Proceedings

     (a) A case ancillary to a foreign proceeding is commenced by the filing with the bankruptcy court of a petition under this section by a foreign representative.

     (b) Subject to the provisions of subsection (c) of this section, if a party in interest does not timely controvert the petition, or after trial, the court may—

     (1) enjoin the commencement or continuation of—

     (A) any action against—

     (i) a debtor with respect to property involved in such foreign proceeding; or

     (ii) such property; or

     (B) the enforcement of any judgment against the debtor with respect to such property, or any act or the commencement or continuation of any judicial proceeding to create or enforce a lien against the property of such estate;

     (2) order turnover of the property of such estate, or the proceeds of such property, to such foreign representative; or

     (3) order other appropriate relief.

     (c) In determining whether to grant relief under subsection (b) of this section, the court shall be guided by what will best assure an economical and expeditious administration of such estate, consistent with—

     (1) just treatment of all holders of claims against or interests in such estate;

     (2) protection of claim holders in the United States against prejudice and inconvenience in the processing of claims in such foreign proceeding;

     (3) prevention of preferential or fraudulent dispositions of property of such estate;

     (4) distribution of proceeds of such estate substantially in accordance with the order prescribed by this title;

     (5) comity; and

     (6) if appropriate, the provision of an opportunity for a fresh start for the individual that such foreign proceeding concerns.

(Pub. L. 95–598, Nov. 6, 1978, 92 Stat. 2560.)

     Section 304(b) adopts a provision contained in the Senate amendment with modifications. The provision indicates that if a party in interest does not timely controvert the petition in a case ancillary to a foreign proceeding, or after trial on the merits, the court may take various actions, including enjoining the commencement or continuation of any action against the debtor with respect to property involved in the proceeding, or against the property itself; enjoining the enforcement of any judgment against the debtor or the debtor’s property; or the commencement or continuation of any judicial proceeding to create or enforce a lien against the property of the debtor or the estate.

     Section 304(c) is modified to indicate that the court shall be guided by considerations of comity in addition to the other factors specified therein.

     This section governs cases filed in the bankruptcy courts that are ancillary to foreign proceedings. That is, where a foreign bankruptcy case is pending concerning a particular debtor and that debtor has assets in this country, the foreign representative may file a petition under this section, which does not commence a full bankruptcy case, in order to administer assets located in this country, to prevent dismemberment by local creditors of assets located here, or for other appropriate relief. The debtor is given the opportunity to controvert the petition.

     Subsection (c) requires the court to consider several factors in determining what relief, if any, to grant. The court is to be guided by what will best assure an economical and expeditious administration of the estate, consistent with just treatment of all creditors and equity security holders; protection of local creditors and equity security holders against prejudice and inconvenience in processing claims and interests in the foreign proceeding; prevention of preferential or fraudulent disposition of property of the estate; distribution of the proceeds of the estate substantially in conformity with the distribution provisions of the bankruptcy code; and, if the debtor is an individual, the provision of an opportunity for a fresh start. These guidelines are designed to give the court the maximum flexibility in handling ancillary cases. Principles of international comity and respect for the judgments and laws of other nations suggest that the court be permitted to make the appropriate orders under all of the circumstances of each case, rather than being provided with inflexible rules.

     This section is referred to in sections 101, 305, 306 of this title; title 28 section 1410.