February Edition 2022

35 While theU.S.Bankruptcy Code and caselawmake clear that Section 108(a) applies in Chapter 15 proceedings,9 at issue was whether claims arising before the filing of a chapter 15 petition but created by foreign bankruptcy law qualify as “non-bankruptcy law” such that Section 108(a) could apply. Judge Glenn held that, while the claims at issue arose under Norwegian insolvency law, they do not derive their limitations period from the U.S. Bankruptcy Code itself and, therefore, Section 108(a) properly applies to extend the statute of limitations with respect to such claims. In support of this, the court pointed to the goal of section 108(a), which is to allow a trustee to step into the shoes of a debtor and have access to the remedies available to the debtor at the time of filing the petition.10 The judge found that the tolling was triggered by the filing of the Chapter 15 petition, and because the Chapter 15 proceeding is distinct from the Norwegian Bankruptcy, the trustee should not lose his non-Bankruptcy Code claims to a foreign limitations period that would have expired after the Chapter 15 proceedingwas filed.11 Accordingly, in a Chapter 15 proceeding,Bankruptcy Code Section 108(a) applies to extend the statute of limitations as to a claim that otherwise might have expired in the foreign proceeding. The Court, in dicta, also explored the unsettled issue of the scope of the Section 564(e) safe harbor in Chapter 15 proceedings. The Section 564(e) safe harbor prohibits avoidance of transactions in certain instances where there is a qualifying transaction and a qualifying participant.12 A “qualifying transaction” includes a transfer that is a margin payment or a settlement payment, or that is made in connection with a securities, commodity or forward contract.13 A “qualifying participant” is a “commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency.”14 However, Section 546(e) expressly excepts claims under Section 548(a)(1)(A), which – generally 9 See 11 U.S.C. § 103(a). See also In re Banrktupcy Estate of Norske Skogindustrier ASA, --- B.R. ---, at --- (2021); 2021 WL 1687903 at *15. 10 See In re Bankruptcy Estate of Norske Skogindustrier ASA, --- B.R. ---, at --- (2021); 2021 WL 1687903 at *17. 11 See id. 12 11 U.S.C. § 546(e) provides, “Notwithstanding sections 544 , 545 , 547 , 548(a)(1)(B) , and 548(b) of this title, the trustee may not avoid a transfer that is a margin payment, as defined in section 101 , 741 , or 761 of this title, or settlement payment, as defined in section 101 or 741 of this title, made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, or that is a transfer made by or to (or for the benefit of) a commodity broker, forward contract merchant, stockbroker, financial institution, financial participant, or securities clearing agency, in connection with a securities contract, as defined in section 741(7) , commodity contract, as defined in section 761(4) , or forward contract, that is made before the commencement of the case, except under section 548(a) (1)(A) of this title.” (emphasis added). 13 11 U.S.C. § 546(e). 14 Id.

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