How Foreign is Too Foreign? Extraterritorial Limits on the Recovery of Fraudulent Transfers

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Global Restructuring Review


Section 550(a)(2) of the US Bankruptcy Code allows a trustee to recover property that is the subject of an avoided transfer from ‘any immediate or mediate transferee’ of an initial transferee. Whether this power to recover extends to property that was transferred from a foreign initial transferee to a foreign subsequent transferee has long been an unresolved question. In recent years, several courts have weighed in on the question, clarifying and refining the framework for answering it with respect to individual transfers in specific cases. While the recent case law has provided more guidance to litigants, several open questions remain. In this chapter, we discuss the current landscape with respect to the application of section 550(a)(2) to foreign-to foreign transfers, the questions that remain unanswered, and how an appeal currently pending before the Second Circuit could alter the terrain dramatically.


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