A debtor’s center of main interest (“COMI”) is not defined under title of 11 of the United States Code (the “Bankruptcy Code”). As a result, bankruptcy courts have taken a number of different approaches to determining a debtor’s COMI. The starting place for determining COMI is the statutory rebuttable presumption that a debtor’s registered office, or habitual residence is the debtor’s COMI. If the presumption is rebutted, the party seeking recognition as a foreign main proceeding must prove by a preponderance of the evidence that the debtor's COMI is in the jurisdiction where the proceeding is pending. Under chapter 15 of the Bankruptcy Code, there are two types of foreign proceedings: (i) a foreign main proceeding which is defined as a proceeding pending in the country where the debtor has its COMI, and (ii) a foreign nonmain proceeding which is defined as proceeding in a country where the debtor has an establishment.
Before a court will determine the location of COMI, the court must first determine the point at which COMI is considered. Most courts have found that the point in time for determining when to look at COMI is the chapter 15 petition date, not the filing date for the foreign bankruptcy proceeding, with a possible look back period to thwart manipulation. However, not every court follows this approach. After, the court will determine the location of COMI under various non-exhaustive factors.
This memorandum examines the different aspects of COMI in a twofold approach. Part I discusses the implications of the timing of when COMI is determined. Part II discusses the various factors courts may examine when determining where COMI is located.