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Managing Cross-Border Insolvency in India UPSC NOTE

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  Effective Cross-Border Insolvency Regulation Global trade growth has intensified cross-border insolvency issues , requiring a robust legal...

 Effective Cross-Border Insolvency Regulation

  • Global trade growth has intensified cross-border insolvency issues, requiring a robust legal framework.

  • A predictable insolvency system is vital for economic stability, attracting foreign investments, and supporting corporate restructuring

Historical Development of Insolvency Laws in India

  • India's first insolvency law was the Indian Insolvency Act of 1848, followed by the Presidency-Towns Insolvency Act (1909) and the Provincial Insolvency Act (1920), which didn't address cross-border insolvencies.

  • Post-Independence, laws remained outdated, despite recommendations for modernization in the 1964 Third Law Commission Report.

Evolution of Cross-Border Insolvency Provisions

  • Economic liberalization in the 1990s triggered discussions on cross-border insolvency.

  • Committees like the Eradi (2000), Mitra (2001), and Irani (2005) recommended adopting the United Nations Commission On International Trade Law (UNCITRAL) Model Law on Cross-Border Insolvency.

  • The Insolvency and Bankruptcy Code (IBC) of 2016 focused on domestic insolvencies, later incorporating provisions for cross-border cases with Sections 234 and 235 for reciprocal agreements and foreign court assistance.


Challenges in Cross-Border Insolvency Framework

  • The Jet Airways case (2019) highlighted gaps: no reciprocal agreement with the Netherlands and unenforceable Sections 234 and 235, making them effectively useless.

  • Expert committees like the Insolvency Law Committee (2018) and Cross-Border Insolvency Rules Committee (2020) recommended adopting the UNCITRAL Model Law, but progress remains slow.

The Need for Structural Reforms

  • Ad hoc protocols have been used to address cases, but they are inefficient, leading to high costs and delays.

  • Judicial communication between Indian and foreign courts needs modernization to enhance efficiency. 

  • Adoption of Judicial Insolvency Network (JIN) Guidelines (2016) is suggested.

  • The National Company Law Tribunal's  (NCLT) limited powers prevent it from recognizing or enforcing foreign judgments, creating barriers in handling cross-border insolvency effectively.

  • Expanding the NCLT's powers is crucial for improving the enforcement of cross-border insolvency decisions.

Recommendations for Strengthening Cross-Border Insolvency Management

  • Adopting the UNCITRAL Model Law and modernizing court-to-court communication methods 

  • Expanding NCLT's powers and ensuring timely rule implementations 

  • Implementing these reforms would create a strong, sustainable insolvency framework, crucial for India's participation in global trade and investment.

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Learnerz IAS | Concept oriented UPSC Classes in Malayalam: Managing Cross-Border Insolvency in India UPSC NOTE
Managing Cross-Border Insolvency in India UPSC NOTE
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Learnerz IAS | Concept oriented UPSC Classes in Malayalam
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