BREAKING BORDERS: CRAFTING A ROBUST CROSS-BORDER INSOLVENCY FRAMEWORK FOR INDIA THROUGH GLOBAL INSIGHTS

1. INTRODUCTION

Cross-border bankruptcy is a growing issue in a globalized economy, requiring robust legal structures to manage multinational corporations’ financial difficulties.

The lack of a unified and thorough structure to manage such matters may result in legal ambiguities, inefficiencies, and unequal treatment of creditors and debtors. India, a rapidly expanding economy, faces significant cross-border bankruptcy issues due to its growing global commerce and investment. The existing framework, majorly governed by the Insolvency and Bankruptcy Code of 2016 (“IBC”)  is inadequate for dealing with cross-border insolvency. India should place a structure that fits in with global best practices and facilitates seamless coordination with other authorities.[1]

The UNCITRAL Model Law on Cross-Border Insolvency (“Model Law”), adopted by countries around the globe, offers a viable framework for India. The Model Law aims to create efficient arrangements for cross-border insolvency cases, promote co-operation between the courts and other insolvency professionals of various jurisdictions, seek to secure fair and efficient resolution of cross-border insolvencies, and protect the interests of all stakeholders, including creditors and debtors.[2]

Using global insights, this study explores the challenges in creating a robust cross-border bankruptcy framework for India. It examines the established frameworks in Australia, the United States, and the United Kingdom that have effectively adopted the Model Law. This study, thereafter examines the Draft Z vis-à-vis the UNCITRAL Model Law.

II. PREVAILING INSOLVENCY REGIME IN INDIAAND ITS DEFECTS

The IBC incorporates two pivotal provisions to facilitate cross-border insolvency proceedings: Sections 234 and 235. These provisions were introduced as enabling provisions based on recommendations from the Joint Parliamentary Committee on the Insolvency and Bankruptcy Code, 2016.[3]

The Central Government has the authority to enter into agreements with foreign countries to implement the provisions of the Code as per Section 234. This law enables the government to extend the scope of the Code to assets beyond India’s borders, including those of the corporate debtor, individual debtor, and their personal guarantors, through agreements. In addition, Section 235 gives power to the Adjudicating Authority to issue a letter of request to a foreign court where the corporate debtor’s assets are present. Most importantly, the IBC in both provisions reiterate their application of the Principle of Reciprocity. Although this seeks to achieve mutual operation internationally, it has its own set of issues.[4]

On the one hand, the establishment of uniform bilateral arrangements reduces the load on courts. However, the effort to negotiate different deals with many countries is often lengthy and complicated, requiring trade-offs in other areas. In addition, different agreements with countries could create differences in standards. This makes the cross-border insolvency environment uncertain.

Despite these hurdles, these two provisions for the IBC are a big step ahead. However, there are still some hurdles that need to be addressed for the effective implementation and success of cross-border insolvency procedures.

A.  Development on Cross-Border Insolvency through Judicial Decisions

Moving on to the judicial front, we find that the development of cross-border insolvency laws in India has been considerably influenced by judgements in the absence of statutes. A case in point is Jet Airways v. State Bank of India and Anr^[5], which illustrates the challenges in the application of cross-border insolvency legislation as well as the view of the court.

In this landmark case, while Jet Airways underwent domestic insolvency proceedings in India, Dutch administrators sought the recognition of Dutch proceedings and a halt to the Corporate Insolvency Resolution Process (“CIRP”) in India from the National Company Law Tribunal (“NCLT”) in Mumbai. They claim jurisdiction under Article 2(4) of the Dutch Bankruptcy Act, arguing that simultaneous proceedings would hinder restructuring and negatively impact creditors.[6] The central issue was whether the Netherlands Court had authority to rule the bankruptcy of an Indian-registered airline and issue restructuring orders.[7]

The NCLT observed that Jet Airways has a registered office and substantial assets located in India. Therefore, the existing legal framework applies to Jet Airways. It refused to stay the Indian proceedings because there was no existing insolvency law in India for dealing with cross-border matters. Unsatisfied with this decision, the Dutch Court-appointed administrator challenged NCLT’s rule, leading to further developments in this case. Upon reviewing the appeal, the National Company Law Appellate Tribunal (“NCLAT”) took a more collaborative approach, instructing Jet Airways’ ‘Resolution Professional’ to work with Dutch Trustee to explore a joint CIRP. The parties agreed on a “proposed model of co-operation,” which the NCLAT approved to expedite the settlement process. This cross- border insolvency protocol^[8] marked a turning point in the case, acknowledging that Indian laws apply to foreign assets in the Netherlands and recognizing India as the “main insolvency proceeding” location due to the company’s center of main interest being in India.

In this context, it is crucial to consider the provisions of the Code of Civil Procedure, 1908 (“CPC”), which serve as the primary legal basis for recognizing foreign judgements in India. Section 13 outlines the conditions under which foreign judgements can be recognized and enforced in India, while Section 44A provides a mechanism for executing decrees from reciprocating territories, allowing enforcement as if delivered by domestic courts.

The CPC provides a statutory framework for the recognition of foreign judgements in India, the application of which in matters of insolvency may not be straightforward. Foreign judgment recognition and insolvency proceedings raises several legal questions, that are particularly complex in the context of insolvencies involving more than one country.

As Indian courts grapple with these issues, recent cases have begun to shed light on how foreign judgements and awards can be treated within the framework of Indian insolvency law. One such notable case that explores this intersection is the “Agrocorp International Pvt. Ltd. v. National Steel and Agro Industries Ltd.”[9] decision by the NCLT, Mumbai Bench. This case involved the execution of a foreign arbitral award under the IBC, with the NCLT ruling that overseas arbitral rulings fit as “debt” under the IBC’s broad criteria, allowing Agrocorp to submit its claims with the resolution professional. However, the Bench emphasized that the IBC requires equal treatment of creditors and that the collective insolvency process cannot be superseded by the execution of a foreign arbitral ruling.

In contrast to the Agrocorp decision, the case of “Adityaa Energy Resource Pte Ltd. v. Simhapuri Energy Ltd.”^[10] presents a different perspective on the treatment of foreign awards in insolvency proceedings. ‘In this case, the Hyderabad bench of the NCLT held that insolvency proceedings cannot be initiated based on a foreign award that has not been enforced and has attained finality in accordance with Part II of the Arbitration Act.’[11]

Further illuminating the complexities of recognizing foreign awards, the case of “Government of India v. Vedanta Limited & Ors.”^[12] demonstrates the challenges in enforcing significant awards involving sovereign organizations, particularly when such awards intersect with insolvency issues. The Supreme Court of India’s rejection of defenses against public policy and sovereign immunity under Section 48[13] of the Arbitration and Conciliation Act, 1996, emphasizes India’s adherence to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards Art. I, June 10, 1958, 330 U.N.T.S. 3^[14]. The decisions taken together show that the local insolvency rules of India and the obligations of international arbitration have a fundamental conflict that has not been taken care of by legislation in so many letters and spirit.^[15] This shows that the comity of cross-border insolvency requires considerable tinkering to solve these disputes.

The current legal landscape in India regarding cross-border insolvency and recognition of foreign judgements and awards reveals significant ambiguities and challenges. The Code has left uncertainty regarding the potential participation of foreign creditors in insolvency proceedings in India, and there is no clear mechanism for the recognition and enforcement of foreign judgements under the current regime. This situation undermines international recognition and enforcement of awards, emphasizing the urgent need for a more coherent and comprehensive approach to cross-border insolvency cases in India.

III. THE MODEL LAW ON CROSS- BORDER INSOLVENCY AND ITS KEY ELEMENTS

While there has been an increase in cross-border insolvency proceedings since the 1990s, there is no uniform framework that states could adopt to deal with the transnational insolvency. ‘Moreover, every nation had its own specific bankruptcy law and manner of managing the issues of cross-border insolvency, which were too varied.’[16] Thus, the UNCITRAL Model Law on cross-border Insolvency was enacted in 1997 to help nations design their insolvency laws in order to address issues stemming from cross-border proceedings.[17]

A. Brief Overview of the uncitral model law

The Model Law was formulated” to assist states in the management of the cross-border insolvency solutions in relation to debtors with assets or creditors in several jurisdictions with a contemporary legislative framework for transnational insolvency legislation.’[18] As of December 2020, 48 states and 51 jurisdictions have enacted laws modelled on this Model Law.

The Law offers a framework based on a modified universalist approach for the recognition of foreign proceedings and insolvency cases. While it does not provide for the formulation of a single insolvency statute, it enables insolvency specialists hired in one jurisdiction to be recognized and allowed to partake in proceedings in other nations. As per the Model Law, the recognition of proceedings is based on the Center of Main Interest (‘‘COMI’’) of the insolvent entity. COMI has not been defined under Model Law but is usually interpreted as the location of an entity’s key operations and assets. The statute then classifies them in foreign “main proceedings” and foreign “non- main proceedings”^[19] i.e., the country where the proceedings are taking place will recognize those proceedings as foreign main proceedings if the COMI of that debtor is in that country. Conversely, a foreign non-main proceeding, on the other hand, is a proceeding that occurs in a jurisdiction where the debtor has an ‘establishment’.^[20]

Moreover, the model law is based on four basic principles that reflect the preamble, which is universally accepted i.e. (a) “Access” Principle, (b) “Recognition” Principle, (c) “Relief” Principle, and (d) “Co-operation and Coordination” Principle.

In the earlier part of this article, it is mentioned that the model law does not provide that the convention offers a framework that allows each individual state to make their own determinations and would not be prescriptive in nature, so it would not introduce recommendations that might upset inter-state harmony. Their goal was to address the differences in different countries’ national insolvency laws. The law refers to the safeguard of the domestic interests of the state through which people cannot take advantage of the law. The provisions allow the nation-state laws to safeguard their domestic interests in terms of insolvency laws.

When business is easy, the state becomes an attractive destination for foreign investment. There would be more certainty surrounding the bankruptcy process, if such complications arose. Several countries such as Canada, New Zealand, the UK, and the USA have adopted the Model Law. Some nations that still do not use the Model Law include Brazil, China, India, and Russia. Countries such Mexico, Mauritius, New Zealand, Romania, Poland, Canada, Japan, and the United States have made various changes to the Model Law or have added it to their local law.^[21]

B. Other countries modelled on the model law

There are concrete laws governing cross-border insolvency, which does provide rigidity. However, different jurisdictions apply to them differently. By looking at Model Law’s foreign adoption, we can determine how exactly the legal framework has been used and made useful by other countries.

1. Australia (Implementation of the UNCITRAL Model Law).

Building on the principles of Model Law, Australia has adopted it in several ways:

1. 1. International Arbitration Act 1974,Commonwealth of Australia (“Cth”): In 1989, Australia included the Model Law, along with other provisions, in its International Arbitration Act 1974 (Cth) based on proposals from a Working Party. This Act establishes the legal basis for international arbitration in Australia and conforms to principles of UNCITRAL.
   2. Additional Notable treaties: In addition to arbitration, Australia embraced additional UNCITRAL treaties. These include several domains such as, electronic transactions, cross-border bankruptcy, and the international selling of products. These agreements facilitate the standardization of international trade regulations and enhance the efficiency of cross-border transactions.

2. United states (chapter 15 of the us bankruptcy code).

Similar to the approach taken by Australia, the United States incorporated the Model Law into, Chapter 15 of the U.S. Bankruptcy Code. According to Chapter 15, a “foreign representative” may seek recognition of a foreign insolvency case in a U.S. court according to section 1515.23 Under Chapter 15, a U.S. court may collaborate with a foreign counterpart by adjudicating either a “foreign main proceeding” or a “foreign non-main proceeding.” According to Section 1502(4) of the Code, a “foreign main proceeding” refers to a procedure “pending in the country where the debtor has the centre of its main interests,” generally known as its COMI. The Code stipulates in Section 1516(c) that, “[i]n the absence of evidence to the contrary, the debtor’s registered office, is presumed to be the [COMI].”

3. United Kingdom (Cross-Border Insolvency Regulations 2006):

‘In contrast to the US approach, the United Kingdom, Model Law was implemented by the Cross-Border Insolvency Regulations 2006 (“CBIR”). Instead of carving out an entirely new statutory section within a previously existing portion of the U.K. insolvency scheme, legislators proclaimed that the Model Law would “have the force of law,” and appended it to the CBIR, albeit “with certain modifications to adapt it for application in Great Britain.” [22]Similar to Chapter 15, there is a presumption under the CBIR that the locale of the company’s registered office is one and the same as its COMI. Again, this presumption is rebuttable.”[23]

While Australia, the U.S., and the U.K. have adopted the UNCITRAL Model Law, each country has its own adaptations. Thus, these variations show how flexible the Model Law is regarding different legal traditions, while maintaining a consistent framework for taking insolvency across borders. Further, after taking a look at the developed world implementing the UNCITRAL Model Law, it will be worthwhile to see how far India has come into having a cross-border insolvency regime. In contrast to the aforementioned nations, India continues to deploy the principles of Model Law effectively.

C. Steps Taken by India for inclusion of the UNCITRAL Model Law into Its Current Regime

To address the shortcomings of its existing cross-border insolvency mechanism, India has taken significant steps toward adopting a structured framework aligned with international best practices. To this end, India has come out with a draft set of guidelines, the IBC will have a new Part Z (“Draft Z”).

The guidelines are mostly based on the Model Law on Cross Border Insolvency (“CBI”), with certain modifications to suit Indian conditions. Several expert committees have examined the need for a cross-border insolvency regime to lay the foundation for these reforms. The Justice Eradi Committee suggested the incorporation of model laws in the Companies Act of 1956 around 2000 itself.[24] Similarly, in 2001, the Advisory Group on Bankruptcy Laws under the chairmanship of Dr. N. L. Mitra recommended its inclusion.[25] In 2017, the Government of India set up the Insolvency Law Committee (ILC), which recommended the integration of Model Law into the IBC.  The ILC’s 2018 report acknowledged that the framework, under Sections 234 and 235 of the IBC is inadequate.[26]The existing framework depends on bilateral agreements between countries and is likely to suffer from delays and uncertainties in both countries.[27] Moreover, provisions regarding the execution of foreign judgements are not sufficient for cross-border insolvency cases.

Knowing these limitations, the ILC recommended taking up the Model Law with additions in relation to the corporate insolvency framework. The draft chapter has 29 sections dealing with important issues, such as Access of foreign representatives & creditors to Indian courts, Recognition of foreign proceedings, Relief, Co-operation between Indian and foreign courts, and concurrent proceedings. Notably, Draft Z only applies to corporate debtors at the outset, as IBC presently does not apply to partnerships and individuals. The phased approach is similar to Singapore, which introduced cross-border insolvency laws for the first time for corporations before expanding their application. By incorporating Model Law, India seeks to introduce a clear framework for dealing with cross-border insolvency cases.[28] This would allow for recognition of foreign proceedings in India. This would also enable the recovery of assets located outside India through Indian insolvency professionals. We can expect these measures to help improve legal certainty, creditor confidence, and the efficiency of insolvency proceedings involving multinationals. As the system develops over time, India may look at adopting a similar provision for individual insolvency.

IV. STRENGTHENING DRAFT Z’S ADOPTION OF THE MODEL LAW: ADDRESSING GAPS, CHALLENGES & PRE-IMPLEMENTATION REFORMS

A. access principle

Chapter II of the proposed Draft Z deals with the access of foreign representatives and creditors to the Adjudicating Authority, wherein Clause 7 specifies that the foreign representative shall be entitled to apply to the Adjudicating Authority, subject to the prescribed code of conduct. While it seems to be in line with the access principle stipulated under Article 9 of the Model Law, one of its most debated aspects is the lack of direct access for foreign representatives to Indian courts. Unlike Model Law on CBI, which allows foreign representatives to approach courts directly, India’s draft framework requires them to act through Domestic Insolvency Professionals[29]. A blanket restriction on direct access could lead to delays, increased costs, and inefficiencies; rather than outright denying ‘Foreign Representatives’ direct access to Indian courts, a more structured and conditional framework could be implemented.

Moreover, Draft Z leaves the extent of foreign representatives’ right to access the discretion of the Central Government, which creates uncertainty. Therefore, a structured, well-regulated system that allows limited direct access to safeguards, that is., a balanced approach, can be incorporated in the legislation, rather than leaving them entirely to government discretion.

Instead of fully restricting direct access, India can implement a system in which foreign representatives are permitted to apply directly to courts, but only after fulfilling the strict eligibility criteria. For example, they could be required to register with a designated insolvency regulator in India, ensuring that only genuine, qualified foreign representatives can participate in the proceedings. Registration acts as a vetting mechanism to prevent misuse by unqualified individuals. Additionally, foreign representatives are required to present proof of official appointments from a foreign court before being allowed to file applications. This would ensure that only duly recognized representatives of insolvent companies or creditors can engage with Indian courts, preventing fraudulent claims. While allowing direct access, India can also impose limited participation rights, meaning that foreign representatives should only be allowed to act within the narrow scope of cross-border insolvency matters and should not interfere with domestic cases. Furthermore, to address urgent situations, such as cases in which assets are at risk of being unlawfully transferred or dissipated, courts should have the power to grant emergency access to foreign representatives.

This would allow them to apply for urgent relief, such as freezing assets, even if they have not yet completed all procedural formalities. For instance, when the Nirav Modi fraud case came to light, Indian authorities swiftly frozen assets worth millions to prevent their dissipation. A similar mechanism in cross-border insolvency cases would empower foreign creditors to take swift action against bad-faith asset transfers.

B. Reciprocity

The Reciprocity Principle[30] exerts considerable influence on cross-border insolvency practices, shaping the manner in which various jurisdictions acknowledge and implement insolvency proceedings initiated in foreign courts. Notably, the Model Law does not mandate reciprocity, granting nations autonomy to determine whether to impose such conditions. This discretionary approach aligns with “modified universalism,” prioritizing judicial collaboration among jurisdictions over restricting recognition based on a country’s adoption of the Model Law. In contrast, India’s Draft Z explicitly incorporates the Reciprocity Principle as an essential prerequisite for recognizing foreign insolvency proceedings, diverging from the more flexible approach advocated by Model Law.

One of the major issues in connection with this requirement is the exclusion of jurisdictions that do not adopt the Model Law. Currently, 48 countries have implemented the Model Law.[31] However, this excludes some major economies such as China and certain EU member states.  This limit may cause an imbalance in the playing field for foreign creditors and companies from non-reciprocating jurisdictions, and may ultimately deter foreign investment and cross-border transactions with Indian entities.

With global trade becoming more intertwined, a restrictive regime on cross-border insolvency may impose hurdles for MNCs and foreign creditors seeking to initiate proceedings in India. Countries such as Singapore and the UK have placed greater emphasis on co-operating with other countries’ judicial undertakings rather than reciprocity. Because of this flexibility, their status as global financial center has increased, a status that India also seeks to achieve. The requirement of absolute reciprocity may put India at a competitive disadvantage and restrict its ability to establish proper linkages with the global insolvency architecture.

The principle of reciprocity also poses a challenge of interpretation in determining whether reciprocity is satisfied. Lack of guidance on the assessment of reciprocity may also cause delays in insolvency resolution and inconsistencies in judicial order.[32] These problems make a compelling case for relaxing the rigidity of reciprocity contained in Draft Z. One way could be a discretionary approach, which confers on Indian courts the flexibility to judge foreign insolvency proceedings on a case-to-case basis rather than an absolute requirement of reciprocity. This approach would enable Indian courts to give effect in India to foreign proceedings wherever co-operation and judicial comity are justified, rather than being restricted by the limitations of reciprocal agreements. This would make India’s cross-border insolvency regime more aligned with the global trend of modified universalism.

In addition, although there is a proposal by the ILC, it may relax the reciprocity requirement over time, because there is no roadmap providing clarity for its relaxation, which will create uncertainty and unpredictability. A phased-out structure on reciprocity would help India strengthen its insolvency infrastructure and allow for movement towards a more open cross-border insolvency regime. In addition, India may look at entering into bilateral insolvency co-operation agreements with its key trading partners to overcome the limitations of the reciprocity requirement. This would create predictability in cross-border insolvency adjudications, while ensuring some degree of governmental control over foreign access to Indian insolvency courts.

C. Recognition

Recognition of foreign insolvency proceedings is at the heart of the cross-border insolvency framework in countries, enabling co-operation and coordination between jurisdictions. The Model Law provides a proper framework for recognizing foreign insolvency proceedings. India’s Draft Z modified the law with respect to the country’s conditions.

‘The Committee Report of 2018 refers to two types of foreign proceedings: (a) Foreign Main Proceedings and (b) Foreign Non-main Proceedings. This distinction helps determine the level of control exercised by a jurisdiction over insolvency resolution proceedings, and the type and extent of relief the NCLT may grant in foreign proceedings.’[33]A crucial distinction between the two frameworks is the extent of judicial discretion afforded to the courts in determining recognition. This has a significant bearing on foreign creditors legal predictability and treatment.

Recognition under Model Law is mainly procedural. Article 17 of UNCITRAL mandates that if a foreign insolvency proceeding meets certain conditions, such as the COMI, is in the foreign jurisdiction, the domestic court must grant recognition. However, the Model Law offers limited judicial discretion under Article 6, which allows the refusal of recognition on the grounds that it is manifestly contrary to public policy. In the United States and other jurisdictions, the clause has been interpreted narrowly to ensure the denial of recognition only in cases of fraud, gross denial of due process, or fundamental breach of law.[34]

By contrast, India’s Draft Z framework widened the scope of judicial discretion in more ways than one. Clause 15 of Draft Z relies heavily from Article 17 of the Model Law to determine whether the foreign proceedings are to be regarded as a foreign main proceeding or a foreign non-main proceeding. ‘Under Clause 15, NCLT has the power to decide if the foreign proceedings should be classified as foreign main proceedings or foreign non-main proceedings.’ [35] Foreign proceedings would be deemed to be a foreign main proceeding if the corporate debtor has COMI in the foreign country, and a foreign non-main proceeding if the corporate debtor has established in that country.[36]

D. Public Policy

Draft Z’s Public Policy exception must shield India’s essential legal principles while ensuring efficient recognition of cross-border insolvency.  As per the existing provision, recognition by the Adjudicating Authority can be refused if foreign proceedings violate the public policy of India. This large power may introduce an element of unpredictability that causes reluctance among foreign creditors. To counter this, Draft Z should interpret the clause in a narrower manner, as in U.S. jurisdictions, which provide that the courts will only invoke the clause in case of fraud, fundamental procedural unfairness, or breach of the constitution. Clear guidelines should be established that show the particular impediments (fraud, national security, or fundamental rights) that would be a violation of public policy. This provides greater predictability and prevents arbitrary rejection. Moreover, holding to international best practices, Draft Z must ensure that the exception to public policy does not become an overly restrictive impediment that prevents co-operation with foreign courts. Having a structure that requires judicial reasoning for refusals will bring about transparency and a reduction in interpretation. Instead of simply rejecting help, the courts may consider ‘partial recognition’ or ‘some other form of relief’ to balance the benefits of cross-border insolvency co-operation with the integrity of the domestic legal system. Given India’s evolving insolvency laws, a ‘cautious yet progressive approach’ may go a long way in instilling ‘confidence’ in India’s cross-border insolvency framework.

Authors:

Anshuman Gupta, Partner, Krishnamurthy & Co.

Hunaynah Shaikh, IV-year, B.A.LL. B (Hons.), Faculty of Law, The Maharaja Sayajirao University, Gujarat

Footnotes

[1]Export Committee on Bankruptcy, Report of the Advisory Group on Bankruptcy Laws (Mitra Report, May 2001) <https://rbidocs.rbi.org.in/rdocs//PublicationReport/Pdfs/20811.pdf> accessed 10 October, 2024.

[2]Jay Lawrence Westbrook, ‘Global Insolvency Proceedings for a Global Market: The Universalist System and the Choice of a Central Court’ (2018) Social Science Research Network < https://doi.org/10.2139/ssrn.3151805 >accessed 10 October 2024.

[3]Aparna Ravi, ‘Filling in the Gaps in the Insolvency and Bankruptcy Code – Cross Border Insolvency’ IndiaCorpLaw (17 May 2016) <https://indiacorplaw.in/2016/05/filling-in-gaps-in-insolvency-and.html>accessed 10 October 2024.

[4]Tatsiana Kliatskova, Loïc Baptiste Savatier & Michael Schmidt, ‘Insolvency Regimes and Cross-Border Investment Decisions’ (2022) 131 Journal of International Money and Finance 102795.

[5]Jet Airways (India) Ltd v State Bank of India and Ors (NCLAT) Company Appeal (AT) (Insolvency) No 707 0f 2019

[6]Reddy, S., ‘Understanding of the IBC, 2016’ (2019) Social Science Research Network <https://doi.org/10.2139/ssrn.3425370> accessed 10 October 2024.

[7] Manish Arora and Raushan Kumar, ‘India’s Tryst with Cross-Border Insolvency Law: How Series of Judicial Pronouncements Pave the Way?’ (16 April 2021) SCC Times <https://www.scconline.com/blog/post/2021/04/16/cross-border-insolvency-law/>accessed 10 October 2024.

[8]‘An insolvency protocol is an agreement between the local insolvency resolution professional and the foreign representative that sets out the mode and method of co-operation and communication. Such a protocol must ultimately be approved by the courts in accordance with the law and practice of each local jurisdiction, as it is unenforceable without judicial backing.’

[9](2020) SCC OnLine NCLT 8413 (India).

[10](2019) SCC OnLine NCLT 32473 (India).

[11] Mohammad Kamran and Ashish Kabra, ‘Singapore: Injunction Against Commencement of Winding Up Proceedings Based on a Foreign Award’ The National Law Review <https://natlawreview.com >accessed 10 October 2024.

[12](2020) SCC OnLine SC 749 (India).

[13]Arbitration and Conciliation Act, No. 26 of 1996, § 48 (India).

[14]‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention, 1958) Art I, 330 UNTS]. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)’ accessed 10 October 2024.

[15] Mohit Maheshwari, ‘Interplay Between Arbitration and Insolvency in India: Challenges and the Way Forward’ (2020) 12 Nalsar Law Review 110.

[16] Palak Jain, ‘Lacuna in the Insolvency & Bankcruptcy Code,2016 to deal with Cross Border Insolvency’ (2020) IBC Laws.

[17] Devika Sen, ‘Need for India to Adopt the UNCITRAL Model Law on Cross-Border Insolvency’ (2019) 6 NUALS IBC E-Newsletter<https://nualsrilj.wordpress.com/wp-content/uploads/2020/09/vol-6-nuals-ibc-e-newsletter-vol-vi-may-july-2019.pdf> accessed 10 October, 2024.

[18]UNCITRAL Model Law on Cross-Border Insolvency with Guide to Enactment and Interpretation,< https://www.uncitral.org/pdf/english/texts/insolven/1997-Model-Law-Insol-2013-Guide-Enactment-e.pdf > accessed 10 October 2024.

[19]Status: UNCIRAL Model Law on Cross Border Insolvency (1997) <https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency/status> accessed 10 October 2024.

[20]‘The term ‘establishment’ refers to any place of operation where the debtor carries on

business activities in that jurisdiction that are not transitory in nature.’

[21]S C Mohan, ‘Cross-border Insolvency Problems: Is the UNCITRAL Model Law the Answer?’ (2012) 21(3) International Insolvency Review 12.

[22] Bryan Rochelle, ‘Cross-Border Insolvency in the US and UK: Conflicting Approaches to Defining the Locus of a Debtor’s Center of Main Interests’ (2017) 50(2) International Lawyer <https://scholar.smu.edu/cgi/viewcontent.cgi?article=4542&context=til> accessed 10 October 2020.

[23]Vyapak Desai, Arjun & Bhavana Sunder, ‘Introduction to Cross-Border Insolvency’ http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research_Papers/Introduction-to-Cross-BorderInsolvency.pdf accessed 10 October 2024.

[24]High Level Committee on Law, ‘Report of the High Level Committee on Law relating to the insolvency and winding up of companies (Eradi Committee Report, 2000) <http://reports.mca.gov.in/Reports/24Eradi%20committee%20report%20of%20the%20high%20level%20committee%20on%20law%20relating%20to%20insolvency%20&%20winding%20up%20of%20Companies,%202000.pdf’> accessed 10 October 2024.

[25]Export Committee on Bankruptcy, ‘Report of the Advisory Group on Bankruptcy Laws (Mitra Report, May 2001) <https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/20811.pdf’>accessed 10 October

[26]Insolvency Law Committee, ‘Report of the Insolvency Law Committee (March 2018) <

http://www.mca.gov.in/Ministry/pdf/ReportInsolvencyLawCommittee_12042019.pdf’>  accessed 10 October 2024.

[27]ibid.

[28]Himanshu Handa, ‘Orchestrating the UNCITRAL Model Law on Cross-Border Insolvency in India’ (2018) 1 International Journal of Law, Management & Human 11 <Orchestrating-the-UNCITRAL-Model-Law-on-Cross-Border-Insolvency-in-India.pdf>.

[29]Insolvency Law Committee. (2018a, March). Report of the Insolvency Law Committee. http://www.mca.gov.in/Ministry/pdf/ReportInsolvencyLawCommittee_ 12042019.pdf (ILC, 2018b, pp. 26–29).

[30]‘Reciprocity is the implication of the recognition of judgements pronounced by foreign courts along with the power to enforce such judgements within a domestic court when the states concerned have adopted same or similar legislation.’

[31]UNCITRAL Model Law on Cross-Border Insolvency (1997), UN Commission on International Trade Law <https://uncitral.un.org/en/texts/insolvency/modellaw/cross-border_insolvency/status >accessed 7 November 2024.

[32]Debaranjan Goswami and Andrew Godwin, ‘India’s Journey towards Cross-Border Insolvency Law Reform’ (2024) 19(2) Asian Journal of Comparative Law 197 <https://doi.org/10.1017/asjcl.2024.12 >accessed 10 October 2024.

[33]Pinky Dhar and Bhupali Saikia, ‘Cross Border Insolvency Regime in India: An Overview and Study under UNCITRAL Model Law’ (2024) 4(3) International Journal of Advanced Legal Research <https://ijalr.in/wpcontent/uploads/2024/02/CROSS-BORDER-INSOLVENCY-REGIME-IN-INDIA-AN-OVERVIEW-AND-STUDY-UNDER-UNCITRAL-MODEL-LAW.pdf >accessed 10 October 2024.

[34]Ishita Das, ‘The Need for Implementing a Cross-Border Insolvency Regime within the Insolvency and Bankruptcy Code, 2016’ (2020) 45(2) Vikapala: Journal of Decision Makers 104 <https://doi.org/10.1177/0256090920946519>.

[35]Ibid. (ILC,2018b, p.35).

[36]Ibid. (ILC,2018b, p.35.