Adding mediation to India's corporate resolution process

Abstract

India's new insolvency law, the Insolvency and Bankruptcy Code 2016 (‘IBC’) was introduced to improve the efficiency of the resolution process. Although there is much to be credited in the law, the practice of it has shown that the process is often delayed by excessive litigation. This article aimed to study delays under the IBC by looking at the application of the law and providing an alternative feminist assessment. This assessment highlights that a feminist value missing from the practice of the IBC is the inclusion of stakeholders, and particularly a non‐adversarial system that helps stakeholders manage and resolve conflict amicably (and expeditiously) during insolvency resolution. Litigation before tribunals and courts to adjudicate upon stakeholder conflict often leads to significant delays. The article proposes a model that nudges parties towards mediation during a Corporate Insolvency Resolution Process (‘CIRP’) within the IBC, in order to preserve relationships and reduce delays.

The future of corporate insolvency law: A review of technology and AI‐powered changes

“…Mediation has played a role in corporate insolvency cases in jurisdictions like the United States for many years now, and recent years have seen a push in this direction in other countries as well. 57 By contrast, arbitration in insolvency cases is not common, although there has been some academic interest in its potential use. 58 This article will therefore not discuss arbitration.…”