Vol 22 (2025) - Issue 3

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Finding COMI: Lessons from InterCement Brasil

Synopsis
Where is a company's centre of main interests ('COMI') when insolvency or restructuring proceedings concerning that company are commenced in several jurisdictions? That was the question posed in the Chapter 15 cases concerning members of the InterCement group, where the company and certain affiliates commenced restructuring processes in Brazil, the Netherlands and Spain, but sought to have the Brazilian proceeding recognised as 'foreign main proceeding' with respect to all such affiliates. An ad hoc group of the company's noteholders objected on the basis that two of the Chapter
15 debtors – a Dutch special purpose financing entity and a Spanish sub-holding company – each had its COMI in the jurisdiction where the other restructuring process for that entity was commenced (the Netherlands and Spain, respectively) and that the Brazilian proceeding in respect of those entities should therefore not be recognised as a foreign main proceeding under Chapter 15.
On 31 March 2025, the United States Bankruptcy Court for the Southern District of New York overruled that objection and entered an opinion and order recognising as a foreign main proceeding the Brazilian recuperação judicial ('RJ') proceeding filed in respect of InterCement Brasil S.A. and its affiliates. As such, the court found that all Chapter 15 debtors' COMI was in Brazil. The key factor in the decision was the timing of the COMI determination, which in Chapter 15 is the date the Chapter 15 petition is filed rather than the commencement date of the proceeding that is the subject of the petition.