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Nysba Spring 2012 | Vol NYSBA SPRING 2012 | VOL. 25 | NO.1 International Law Practicum A publication of the International Section of the New York State Bar Association Practicing the Law of the World from New York Transcript: The Madoff Fraud: A Ground-Breaking Case in Cross-Border International Litigation ............................................................................................................................. 3 PERSPECTIVES ON THE MADOFF CASE Chapter 15 and Coordinating a Complex Global Bankruptcy Proceeding ......................... 35 David Sheehan, Mark Kornfeld, Natacha Carbajal, Nikolaus Pitkowitz, and Nick Moser Offshore Asset Recovery: Investigations and Legal Proceedings ....................................... 56 Timothy S. Pfeifer, Denise D. Vasel, and Ralph A. Siciliano The Madoff Feeder Fund Cases—Chapter 15, Comity, and Related Bankruptcy Issues ... 67 Richard Levin, James L. Garrity, Jr., and Susan Power Johnston The New Law of Arbitration in France: New Features to Reaffirm Paris as a Venue for International Arbitration ...................................................................................................... 92 Luc Bigel, Julien Soupizet, and Todd J. Fox A Survey of Recent Canadian Developments in Cross-Border Litigation .............................. 98 Ken MacDonald Distribution Laws in Central America ....................................................................................... 105 Hernán Pacheco Orfila Also available online at: www.nysba.org/IntlPracticum PRACTICUM: FORM AND POLICY The International Law Practicum is a semi-annual publication of the International Section of the New York State Bar As so ci a tion. The Practicum welcomes the submission of articles prepared by practicing attorneys. The length of an article, as a general rule, should not exceed 3,500 words, footnotes in clud ed. Shorter pieces, notes, reports on current or regional developments, and bibliographies are also wel- comed. All manu scripts must be sent either (i) in laser printed triplicate accompanied by a CD formated in Microsoft Word or WordPerfect to: The Practicum, c/o Daniel J. McMahon, Esq., New York State Bar Association, One Elk Street, Al ba ny, N.Y. 12207-1096; or (ii) by e-mail in Microsoft Word or Wordperfect format to either the Editor-in-Chief ([email protected]) or the Senior Executive Editor (amber. [email protected]). Both text and endnotes must be double-spaced. Endnotes must appear at the end of the manuscript and should conform to A Uniform System of Citation (the Harvard Bluebook). Authors are responsible for the correctness of all citations and quotations. Manuscripts that have been accepted or published elsewhere will not be considered. The Practicum is primarily interested in practical issues facing law yers engaged in international practice in New York. Topics such as international trade, licens- ing, direct investment, fi nance, taxation, and litigation and dispute resolution are preferred. Public in- ter na tion al topics will be considered to the extent that they involve private international transactions or are of general interest to our readership. Manuscripts are submitted at the sender’s risk, and the New York State Bar Association, International Section, assumes no responsibility for the return of material. Material accepted for publication becomes the property of the New York State Bar Association, International Section. No compensation is paid for any manuscript. The Practicum reserves the right (for space, budgetary, or other reasons) to move an ac- cepted manuscript from an earlier issue to a later issue. Articles, reports and other materials refl ect the views of the authors or com mit tees that prepared them and do not necessarily represent the position of the New York State Bar Association, International Section, or the Editorial Board of the Practicum. Deadlines Manuscripts intended for publication in the Spring and Autumn issues must be received by the Editor-in-Chief by the preceding 1 December and 1 June, respectively. Reprints Each author will receive three complimentary copies of the Practicum issue in which the author’s material is published. Additional copies may be ordered at cost before an issue goes to press by commu- nicating with Daniel J. McMahon, Esq., at the New York State Bar Association, One Elk Street, Albany, N.Y. 12207-1096 (telephone (518) 487-5582). Back Issues and Advertising Requests for back issues, advertising and subscription information and general correspondence should be sent to the Newsletter Dept., New York State Bar Association, One Elk Street, Albany, N.Y. 12207-1096. Back issues (2000 to present) of the International Law Practicum are available, in pdf format, online to Section members on the New York State Bar Association’s Web site at www.nysba.org/IntlPracticum. A searchable index is also available. 2 NYSBA International Law Practicum | Spring 2012 | Vol. 25 | No. 1 The Madoff Fraud: A Ground-Breaking Case in Cross-Border International Litigation [Editor’s Note: The following is an edited transcript of a program held on 25 January 2012 at the Hilton Hotel in New York City as part of the Annual Meeting activities of the International Section of the New York State Bar Association.] I. Welcome BVI fund, is also currently the subject of liquidation pro- ANDRE JAGLOM: Good morning. My name is Drew ceedings in the British Virgin Islands. Jaglom. I’m a partner at Tannenbaum Helpern Syracuse & Using these Madoff cases to provide context, our Hirschtritt, and I’m the Chair of the International Section speakers, who include lawyers from both sides of the this year. We’ve got a terrifi c program this morning. I’m Madoff litigation as well as a judge from the U.S. Bank- going to turn it over to one of our program chairs, Megan ruptcy Court, will discuss some of the complicated juris- Davis of Flemming Zulack, in just a moment. dictional, discovery, enforcement and comity issues that I do want to thank Megan and Jerry Ferguson for all practitioners are likely to face when litigating a com- all their work in putting it together. And I also want to plex cross-border international case. particularly thank Jack Zulack, who suggested this pro- With that brief overview, I’ll turn it over to Gonzolo gram many months ago when we fi rst started talking to introduce our fi rst panel. about what would make an interesting Annual Meeting program. II. The Madoff Fraud: A Ground-Breaking Case in Cross-Border International Litigation Without further ado, let me turn it over to one of our program chairs, Megan Davis, to kick us off. Thanks very GONZOLO ZEBALLOS: Thank you, Megan. much. Our fi rst panel this morning will address the issue MEGAN DAVIS: Thank you, Drew, and welcome ev- of coordinating a complex international bankruptcy pro- eryone. Drew also mentioned Jerry Ferguson, my co-chair ceeding in the context of how counsel and the trustee for today’s program. Unfortunately Jerry couldn’t be here have reacted tactically to the complexities of such a pro- at the last minute, so I wanted to introduce Gonzolo Ze- ceeding. As the last few years have shown us, internation- ballos, who has graciously stepped in at the last minute. al frauds and their eventual and inevitable insolvencies We have a full program for you today, and Gonzolo and are being uncovered and litigated on an unprecedented I don’t want to take time away from our three panels of scale. distinguished speakers. As a result, we’ll give you a brief Chapter 15 of the U.S. Bankruptcy Code, which is our overview of the topics that will be covered today, and implementation of the UNCITRAL Model Law on Cross- then we’ll turn things over promptly to our fi rst panel. Border Insolvency, represents our jurisdiction’s statutory Today’s speakers will address some of the many solution to the challenge of managing and litigating a thorny legal and procedural issues that arise in most multinational insolvency. Frauds like Madoff’s scheme cross-border international litigations. But instead of dis- test to the absolute limit statutes like Chapter 15 and their cussing these issues only in the abstract, our panelists foreign counterparts around the world. will explain how they have been playing out in one of the Given the globalization of modern economies and the largest and most complex cross-border litigations to be speed and ease by which funds can be transmitted back fi led to date: The liquidation of Bernard L. Madoff Invest- and forth across international borders, the question of ment Securities. which law applies where has never been more complex, Since the discovery of Bernard Madoff’s fraud in diffi cult or important to resolve. Panel one will discuss December 2008, the Trustee for BLMIS, Irving Picard, has the Madoff fraud and our real-life experiences working fi led more than one thousand avoidance actions in the with Chapter 15 and its international equivalent in con- United States Bankruptcy Court for the Southern District nection with asset recovery and investigation efforts. of New York. He seeks in these cases to recover more than Our moderator for the panel is David Sheehan. He is ninety billion dollars, and many of these actions name as chief counsel of the team at Baker Hostetler for the court- defendants individuals and entities located abroad. appointed counsel for the Trustee, Mr. Irving Picard. He The largest of the Madoff feeder funds, Fairfi eld Sen- leads more than three hundred attorneys and numerous try, has separately fi led more than two hundred lawsuits, foreign counsel engaged in the multinational investi- both in New York and in the British Virgin Islands, alleg- gation and litigation connected with the largest Ponzi ing common-law claims and claims under the BVI insol- scheme in history. I am pleased and honored to introduce vency law against mostly foreign defendants. Fairfi eld, a Mr. David Sheehan. NYSBA International Law Practicum | Spring 2012 | Vol. 25 | No. 1 3 DAVID SHEEHAN: Thanks, Gonzolo. nard Madoff became was part of the fi nancial fabric of the international fi nancial community.
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