By Hogan Lovells From JD Supra

The bankruptcy court in In re Ocean Rig UDW Inc., 17-10736 (Bankr. S.D.N.Y. Aug. 24, 2017) determined that a decision by an offshore drilling company from the Republic of the Marshall Islands (RMI) to shift its Center of Main Interest (COMI) to the Cayman Islands prior to defaulting on bonds and initiating reorganization proceedings there and in the U.S., was “prudent.” The Court held that the change offered the debtors the best opportunity for successful restructuring and survival under difficult financial conditions and did not preclude U.S. recognition of the Cayman Island scheme of arrangement as the foreign main proceeding.

Foreign Debtors’ Decision to Restructure

The foreign debtors in these proceedings had significant debt payments due during 2017. They did not expect to have sufficient cash available to make these payments and failure to make any of these payments when due would trigger cross-default provisions under the Credit Agreements. Faced with expected payment defaults and cross-defaults, the debtors explored their restructuring alternatives.

The Republic of the Marshall Islands, where the debtors previously had their COMI, has no statutory laws or procedures for reorganization, making liquidation the only possible outcome. Meanwhile, the Cayman Islands provide statutory authority for schemes of arrangement as a way of permitting companies in financial distress to restructure their financial debt. Accordingly, the debtors concluded that transfer of their COMIs to the Cayman Islands offered the company the best chance of survival and they proceeded to do so.

To determine if the U.S. bankruptcy court could recognize the foreign proceeding as such, it performed a COMI analysis of the debtors’ operations and current connections with the RMI and Cayman Islands. The court determined that the debtors conducted their management and operations in the Cayman Islands, had offices in the Cayman Islands, held their board meetings in the Cayman Islands, had officers with residences in the Cayman Islands, had bank accounts in the Cayman Islands and maintained their books and records in the Cayman Islands, and thus each of the foreign debtors had established by a preponderance of the evidence that each of their COMIs as of the filing of the chapter 15 petitions, was the Cayman Islands.

In conclusion, the Chapter 15 court held that the Cayman Islands provisional liquidation proceedings were “foreign proceedings”, that the center of main interests (COMI) of the foreign debtors had been properly and prudently changed to the Cayman Islands, and thus Chapter 15 recognition was appropriate.

SOURCE: http://www.jdsupra.com/legalnews/court-permits-strategic-transfer-of-48509/