Cross Border Insolvency in India: A Critique of the UNCITRAL Model Law
Recently the Indian Ministry of Corporate Affairs (MCA) shelved its plan to introduce a cross-
border insolvency regime in India.2 Earlier, the MCA had constituted a Committee to plan and recommend the introduction of provisions on cross-border insolvency into the Insolvency and Bankruptcy Code.3 Prior to that, the earlier Committee constituted for the same purpose had drafted a framework wherein cross-border insolvency would have been facilitated only for Indian companies with substantial foreign assets and vice-versa.4 However, the new Committee has further expanded its scope to consider appropriate treatment for ‘enterprise groups’ under the IBC. In light of such interesting developments, this paper shall attempt to scrutinise the UNCITRAL Model Law on Cross-Border Insolvency. It will examine the impact the Model Law has had in terms of addressing the real-time problems associated with transnational transactions and resulting insolvency dilemmas. Further, it shall also try to understand why the Model Law, in spite of its universality and broad scope of application, has failed to be the popular model for cross-border insolvency resolution as it was envisaged to become.
FDI Limits in Airlines- A Boon or a Bane for the Industry?
Foreign Direct Investment (FDI) has been a boon for developing countries all over the world. The concept allows non-resident nationals and foreign citizens to invest in the businesses of a country primarily through the route of equity acquisition. FDI has allowed various businesses to flourish and stabilize in our country. However, while other businesses have no FDI limits in our country, the aviation sector states otherwise. This research paper will analyse the FDI limits in airline businesses and throw light on whether the same is a blessing or a curse for the beleaguered airline industry.
The Implications of Increasing Judicial Interference in Section 11 Proceedings
There has been an unending judicial debate over the scope of judicial examination at the stage of referring parties to arbitration. The Arbitration and Conciliation Act 1996 (“Act”) was amended in 2015 and a subsequent Section 11 (6A) was introduced. The objective of introducing this Section was to limit the Court’s interference at the reference stage to merely examining existence of an arbitration agreement.
Unstamped Arbitration Agreements in India: Navigating the Legal Landscape post N.N. Global Mercantile Pvt. Ltd. v. Indo Unique Flame Ltd. & Others
Arbitration has become more and more popular in India as a less expensive and more effective alternative to traditional judicial methods for resolving commercial disputes. The legal system of India supports arbitration with the intention of making it the centre of international arbitration. The enforceability of arbitration agreements, especially those that are not suitably or properly stamped, is still up for debate. In the absence of a clear legal position, there has been confusion and many interpretations, including inconsistent judgements by many High Courts, are being offered. In this article, I go over the Supreme Court’s recent historic ruling in the N.N. Global Mercantile Private Limited vs. Indo Unique Flame Ltd. & Ors. The enforcement of unstamped arbitration agreements is discussed in the case of Global Mercantile Private Limited vs. Indo Unique Flame Ltd. & Ors. It is crucial to emphasise that under Indian law, unstamped arbitration agreements are ruled unenforceable, and thus skipping the necessary stamp duty could have major repercussions on the enforceability of arbitration agreement
Prosecution of Corporate Crimes: Legal Challenges
Corporate crimes have significantly reshaped the public perception of corporations, with instances of misconduct permeating various industries and causing substantial harm. Industries such as transportation, technology, pharmaceuticals, financial services, and others have witnessed transgressions that highlight the far-reaching impact of corporate wrongdoing. This trend is not unique to a particular country but has been observed globally, including in India, where corporate crimes have increased in frequency and their detrimental effects are being felt. However, the development of effective solutions to combat these crimes has not kept pace with the growth of the problem. This article aims to explore the underlying theoretical and regulatory framework for corporate criminal liability, focusing on the Indian context. It begins by providing a summary of the background and context of corporate crimes, emphasizing the pervasive nature of such offenses.
It then delves into the question of liability, examining the legal principles and mechanisms through which corporations can be held accountable for their actions. The article also explores various legal defences available to corporations, acknowledging the complexities involved in determining the culpability of the company as a legal entity. It highlights for necessity of nuanced view to corporate criminal liability, one that takes into account the unique characteristics and dynamics of corporate entities. In conclusion, this article underscores the urgent need for a more comprehensive and tailored approach to addressing corporate crimes in India and identifies that despite the growing recognition of corporations’ capacity to engage in wrongdoing, the existing framework of criminal law has not been adequately adapted to address this issue.
Dynamic Interpretations of Avoidable Transactions and Look Back Period under Insolvency & Bankruptcy Code, 2016
This article shall highlight the changing trends of Insolvency and Bankruptcy procedures in India. The focal topic of the article revolves around chapter III, section 43 to 51 of Indian Insolvency and Bankruptcy Code; dealing with kinds of the transactions which have been put under the heading of avoidable transactions in order to eradicate any possible fraud or fabrication by the corporate debtor. These provisions are in the spirit of determining the rights of the creditors and the liabilities of the corporate debtor with utmost sophistication and in compliance with IBC, 2016. Preamble of IBC, 2016 warrants the establishment of different professional authorities in order to make sure of the appropriate functioning of corporate insolvency resolution process and liquidation procedure by adhering to the provisions of IBC, 2016. These professional bodies are identified as resolution professionals and liquidator who are given the task of blowing the whistle in the event of mal functioning in the process of CIRP/Liquidation by corporate debtor. The very intention of the IBC, 2016 was to compile all the insolvency related laws so that no scope remains for corporate debtor to intervene in the process of rehabilitation or winding up of the companies on the pretext of defences available in different laws (as happened back in those days prior to the 2016 enactment).