In re Ennia Caribe Holding N.V.

594 B.R. 631
CourtUnited States Bankruptcy Court, S.D. New York
DecidedDecember 20, 2018
DocketCase No. 18-12908 (MG)
StatusPublished
Cited by11 cases

This text of 594 B.R. 631 (In re Ennia Caribe Holding N.V.) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ennia Caribe Holding N.V., 594 B.R. 631 (N.Y. 2018).

Opinion

MARTIN GLENN, UNITED STATES BANKRUPTCY JUDGE

R.M. Hermans, Ph.D., LL.M., M.Sc. ("Hermans" or "Foreign Representative"), filed chapter 15 petitions and asks the Court to recognize what is essentially an insurance company rehabilitation proceeding in Curaçao as a "foreign main proceeding" and to recognize him as the "foreign representative," both as defined in the Bankruptcy Code. (The "Petitions," ECF Doc. # 4.)

Hermans filed the Petitions on behalf of ENNIA Caribe Holding N.V. ("ENNIA"), the largest insurance company in Curaçao.2 ENNIA consists of three Curaçao-based insurance companies ("Insurer Debtors")3 and three of their unregulated *634affiliates ("Asset Manager Debtors,"4 collectively with the Insurer Debtors, the "Foreign Debtors"). All the Foreign Debtors are directly or indirectly owned by non-debtor Parman International B.V. ("Parman"). Parman filed an objection to the motion for recognition. (The "Objection," ECF Doc. # 24.) The Central Bank of Curaçao and St. Maarten ("CBCS") regulates Curaçao insurance companies, including the Insurer Debtors.

The genesis of the dispute between the parties-which has been building over the last two or more years-is the liquidity levels of the Insurer Debtors. In July of 2018, the CBCS' solvency concerns grew so great that they revoked the insurers' licenses and initiated a procedure to rehabilitate the companies under a statute known as the LTV, which authorizes a court upon the application of the CBCS to pronounce "Emergency Regulations." Upon receiving approval from a Curaçao court to implement the Emergency Regulations, the CBCS replaced most of the Insurer Debtors' management, effectively removing Parman's control. The CBCS is now in control of the Insurer Debtors' continued operation during the pendency of the rehabilitation proceeding, which will hopefully avoid liquidation. The CBCS appointed the Foreign Representative and supports recognition.

The CBCS authorized the Foreign Representative to file chapter 15 petitions on behalf of the Foreign Debtors because, allegedly, over $240 million of the Foreign Debtors' assets are held in accounts at Merrill Lynch in New York. Some of this money is in accounts in the names of the Insurer Debtors and some is in accounts in the names of the Asset Manager Debtors. The Foreign Representative wants the funds at Merrill Lynch returned to Curaçao to help the Insurer Debtors satisfy policyholder claims. Parman wants to block the return of the funds, or at least the portion of these funds that are in the accounts of the Asset Manager Debtors.5 Parman also is attempting to use the proceeding in this Court-improperly, in the Court's view-as an opportunity to relitigate issues of Curaçao law that it has so far lost in Curaçao, although various judicial proceedings remain pending in Curaçao.

The principal issue before this Court is whether the Curaçao insurance company rehabilitation proceeding is a "foreign proceeding" under chapter 15 of the Bankruptcy Code. A "foreign proceeding" is "a collective judicial or administrative proceeding in a foreign country, including an interim proceeding, under a law relating to insolvency or adjustment of debt in which proceeding the assets and affairs of the debtor are subject to control or supervision by a foreign court, for the purpose of reorganization or liquidation." 11 U.S.C. § 101(23). Parman argues that *635the Curaçao proceeding is not a "collective proceeding," and that it is not a proceeding in which "the assets and affairs of the debtor are subject to control or supervision by a foreign court ...." Parman also argues that even if the Curaçao proceeding would satisfy the requirements to be a "foreign proceeding," this Court should nevertheless refuse to recognize the Curaçao proceeding because, in Parman's view, it is "manifestly contrary to the public policy of the United States," 11 U.S.C. § 1506, because the Curaçao statutory procedure violates due process.

For the reasons explained below, Parman's Objection to recognition is overruled, the Curaçao proceeding is recognized as a foreign main proceeding, and Hermans is recognized as the Foreign Representative.

I. BACKGROUND

A. The Foreign Debtors

The Foreign Debtors are part of ENNIA. ENNIA is the largest insurance company in Curaçao and St. Maarten. (Foreign Representative Declaration ¶ 7.) ENNIA is considered to be systemically important to Curaçao and St. Maarten. (Id. ¶ 8.) ENNIA's total assets constitute approximately 50% of the total assets of the insurance sector of Curaçao and St. Maarten. (Id. ) ENNIA's total assets are estimated to be greater than 50% of annual revenue of the government of Curaçao and St. Maarten, and approximately 25% of the annual gross domestic product of Curaçao and St. Maarten. (Id. ) Furthermore, ENNIA is, to a large extent, responsible for the provision of pensions in Curaçao. (Id. ¶ 8.)

ENNIA's corporate structure includes at least two types of entities: Insurer Debtors and Asset Manager Debtors. The Insurer Debtors provide insurance products and are subject to the regulatory authority of the CBCS. (Id. ¶ 6.) The Insurer Debtors have invested most of their assets with the Asset Manager Debtors. (Id. ¶ 12.)

B. Relevant Curaçao Law6

Curaçao is a constituent country of the Kingdom of the Netherlands. (Declaration of Professor Arthur Hartkamp, ECF Doc. # 51, Ex. B-4 (the "Hartkamp Declaration"), ¶ 22.) The codes of Curaçao and the Netherlands share the same origins, contain a large number of almost identical articles, and have been developed in largely the same manner. (Id. ¶ 25.) The Supreme Court of the Netherlands is the highest court of the Kingdom of the Netherlands. (Id. ¶ 26.) The insolvency landscape in the Netherlands and Curaçao is significantly similar. (Id. ¶ 30.)

The Curaçaoan insolvency code, the Faillissementsbesluit 1931 (which means "Bankruptcy Decree 1931"), contains the following two insolvency proceedings: the *636faillissement (which means "bankruptcy") and surseance van betaling (which means "suspension of payments"). (Id. ) The Curaçaoan insolvency code allows for insurance companies to declare bankruptcy, but it does not permit insurance companies to initiate suspension of payment proceedings. (Id. ¶ 31.) Instead, insurance companies may be restructured only through a special insolvency proceeding known as the noodregeling ("which means, "emergency regulation" ("Emergency Regulations"). (Id.

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Bluebook (online)
594 B.R. 631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ennia-caribe-holding-nv-nysb-2018.