Pope & Talbot Ltd. (Re)

Pope & Talbot Ltd. (Re)

The court held that the existing cross-border protocol applies to the issues in the joint hearing, ordered the protocol be amended to address attornment and to clarify application, directed that the British Columbia court will make the initial determination of the proper law of the transactions (to be reviewed de novo by the U.S. court), required parties to confer and submit proposed amendments and a mechanism and evidentiary record by June 1, and placed U.S. avoidance proceedings in abeyance without prejudice with all other rights tolled pending the proper-law determination.

Citation
2010 BCSC 757
Parties
Monitor/applicant (canadian Monitor): PricewaterhouseCoopers Inc.; Chapter 7 Trustee (united States Trustee/plaintiff): George Miller; Secured Lender/party: Ableco Finance LLC; Creditor/respondent: British Columbia Hydro Authority; Creditor/respondent: Teck Metals Ltd.; Creditor/respondent: Canadian Western Bank; Creditor/respondent: FortisBC Inc.; Creditor/respondent: Western Forest Products Inc.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
12 May 2010
Procedural Posture
Companies' Creditors Arrangement Act and Receivership; Cross Border Insolvency/avoidance Proceedings / Interlocutory (joint Hearing); Oral Reasons Addressing Cross Border Protocol, Choice of Law and Temporary Abeyance of U.s. Avoidance Actions
Outcome
Cross-border protocol applies and is to be amended; British Columbia court to make initial proper-law determination; U.S. avoidance actions placed in abeyance without prejudice; parties ordered to submit proposals and filings by June 1; participation under protocol not a submission to jurisdiction.
Legal Topics
Cross Border Protocol, Choice of Law (proper Law of Transactions), Avoidance Actions, Stay/abeyance and Tolling, Attornment, Jurisdictional Submission
Source Language
English
Bankruptcy and Insolvency Private International Law Civil Procedure Cross Border Insolvency Cross Border Protocol Choice of Law (proper Law of Transactions) Avoidance Actions Stay/abeyance and Tolling +2 more

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Parties

PricewaterhouseCoopers Inc.

Monitor/applicant (canadian Monitor)

George Miller

Chapter 7 Trustee (united States Trustee/plaintiff)

Ableco Finance LLC

Secured Lender/party

British Columbia Hydro Authority

Creditor/respondent

Teck Metals Ltd.

Creditor/respondent

Canadian Western Bank

Creditor/respondent

FortisBC Inc.

Creditor/respondent

Western Forest Products Inc.

Creditor/respondent

Procedural Posture

Companies' Creditors Arrangement Act and Receivership; Cross Border Insolvency/avoidance Proceedings / Interlocutory (joint Hearing); Oral Reasons Addressing Cross Border Protocol, Choice of Law and Temporary Abeyance of U.s. Avoidance Actions

Legal Issues

  1. 1 Whether the existing cross-border protocol applies to the issues raised by the joint hearing
  2. 2 Whether the protocol should be amended to address attornment and to clarify application
  3. 3 Which court should determine the proper law governing the transactions

Ratio Decidendi

The court held that the existing cross-border protocol applies to the issues in the joint hearing, ordered the protocol be amended to address attornment and to clarify application, directed that the British Columbia court will make the initial determination of the proper law of the transactions (to be reviewed de novo by the U.S. court), required parties to confer and submit proposed amendments and a mechanism and evidentiary record by June 1, and placed U.S. avoidance proceedings in abeyance without prejudice with all other rights tolled pending the proper-law determination.

Court Disposition

Cross-border protocol applies and is to be amended; British Columbia court to make initial proper-law determination; U.S. avoidance actions placed in abeyance without prejudice; parties ordered to submit proposals and filings by June 1; participation under protocol not a submission to jurisdiction.

Orders

  • The existing cross-border protocol applies to the issues raised in the joint hearing and is to be amended to address attornment and clarify application.
  • Counsel for parties in both jurisdictions must confer and agree the wording of the amended protocol and the court orders and file them with both courts by June 1.