Cross-border insolvency rules: Govt mulls adopting UN legal model

The government is looking at the possibility of adopting a United Nations legal model for cross-border insolvency cases as it works on strengthening the insolvency resolution framework, according to a senior official.

The Insolvency and Bankruptcy Code (IBC) has sections pertaining to cross-border insolvency matters but they are yet to be made operational. The Insolvency Law Committee (ILC), headed by Corporate Affairs Secretary Injeti Srinivas, is studying the feasibility of introducing cross-border insolvency provisions.

"The committee is looking at adoption of the United Nations Commission on International Trade Law (UNCITRAL) model on dealing with cross border insolvency," Srinivas said in the ministry's latest monthly newsletter.

He also noted that the existing Code provides for two sections -- 234 and 235 -- relating to the cross border insolvency, which allows central government to enter into an agreement with a foreign country for enforcing the provisions of the Code, which is considered insufficient and time taking.

Established in 1966, UNCITRAL is a subsidiary body of the General Assembly of the UN with the general mandate to further the progressive harmonisation and unification of the law of international trade, as per its website.

According to UNCITRAL, 'harmonisation' and 'unification' of the law of international trade refers to the process through which the law facilitating international commerce is created and adopted.

"Harmonisation may conceptually be thought of as the process through which domestic laws may be modified to enhance predictability in cross-border commercial transactions.

"Unification may be seen as the adoption by States of a common legal standard governing particular aspects of international business transactions," the website said.
 

An official said that in case the UN model is adopted for cross-border insolvency matters, then sections 234 and 235 could be dropped from the Code as they pertain to only bilateral agreements.

While coming out with the draft norms in June, the Corporate Affairs Ministry had said it was keen to introduce a globally accepted and well-recognised cross-border insolvency framework, fine-tuned to suit the needs of aspirational Indian economy.

In a release, the ministry had said that the global experience demonstrates that cross-border investment decisions and their outcomes, are considerably affected by the insolvency laws in force in a country.

Inclusion of cross-border insolvency framework will further enhance ease of doing business, provide a mechanism of cooperation between India and other countries in the area of insolvency resolution, and protect creditors in the global scenario, it had said.

The Insolvency and Bankruptcy Board of India (IBBI) is the nodal body for the Code and it comes under the ministry.

The ILC mainly works on identifying and suggesting ways to address issues in the implementation of the Code.