2. Foreign Court

A "foreign court," as defined in 11 U.S.C. § 1502(3), is a court as we understand it in the United States, but also includes administrative agencies, which in some foreign jurisdictions control the insolvency process. Thus, a "foreign court" under Chapter 15 need not be an actual "court" but instead some "other authority competent to control or supervise a foreign proceeding." Thus far, the inclusion of other authorities in the broad definition of "foreign court" has been subject to little discussion within Chapter 15 jurisprudence*(52).

3. Foreign Proceeding

The term "foreign proceeding" is not found in 11 U.S.C. § 1502, but rather in 11 U.S.C. § 101(23). 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 and liquidation*(53).

A "foreign proceeding" is the bankruptcy case or insolvency matter-judicial or administrative - that is being tended to by a "foreign court." For a proceeding to be deemed "collective" within the meaning of a "foreign proceeding," it must be "instituted for the benefit of creditors generally rather than for a single creditor or class of creditors"*(54).

The definition of foreign proceeding requires that it be conducted in a way to allow control and supervision of the assets and affairs of the debtor by the foreign court. In In re Betacorp, Ltd.*(55), the bankruptcy court for the District of Nevada used the definition of "foreign court" under 11 U.S.C. § 1502(3) to interpret a "foreign proceeding" under 11 U.S.C. § 101(23), and concluded that a "foreign court" includes competent authorities other than a court*(56). The Court observed in a footnote that the separation of the definitions of "foreign proceeding" and "foreign court" in Chapter 1 and 15 of the Bankruptcy Code "does not appear to have been done with the intent of limiting the scope of [a "foreign proceeding]"*(57). The Court held that:

section 1501(a)'s instruction is to interpret chapter 15 in line with Model Law so as to promote, among other things, "greater legal certainty." That certainty would be undermined if the United States courts refused to recognize, as a foreign proceeding, foreign liquidations and reorganizations simply because they are being administered by an administrative agency rather than a judicial officer*(58).

The court recognized appointing individual liquidators in debtor's case under Australian law was done by a foreign court within the context of a 'foreign proceeding"*(59). Notwithstanding the discussion in Betacorp, Ltd., courts routinely skim over whether a proceeding qualifies as a "foreign proceeding," being more concerned about if a foreign proceeding would qualify as a "foreign main proceeding" or "foreign non-main proceeding" for recognition purposes. This is explained below in the definitions of "foreign main proceeding" and "foreign non-main proceeding".