Corporate rehabilitation and insolvency laws are crucial for the smooth
functioning of any economy. In this comparative study, we will analyze corporate
rehabilitation and insolvency laws in India, the US, the EU, China, Japan,
Australia, and other major world economies including BRICS nations.
The study aims to provide a comprehensive overview of the legal framework in
these countries, highlighting similarities and differences in their approach to
corporate rehabilitation and insolvency. By examining the legal provisions in
these countries, we hope to identify best practices that can be adopted by other
countries to improve their corporate rehabilitation and insolvency laws.
Corporate rehabilitation is a process that aims to revive a financially
distressed company by restructuring its operations and finances. It is an
important tool for preserving jobs, protecting creditors' interests, and
promoting economic growth. Insolvency, on the other hand, refers to a situation
where a company is unable to pay its debts as they become due. It is a critical
issue that can have far-reaching consequences for the economy as a whole.
The United States has a well-established legal framework for corporate
rehabilitation and insolvency. The Bankruptcy Code provides for two types of
bankruptcy proceedings: Chapter 7 (liquidation) and Chapter 11 (reorganization).
Chapter 11 allows companies to restructure their debts while continuing their
In conclusion, this comparative study will provide valuable insights into the
legal framework governing corporate rehabilitation and insolvency in India, the
US, the EU, China, Japan, Australia, Russia, Brazil, South Africa and other
major world economies including BRICS nations. By identifying best practices
from these countries, we hope to contribute towards improving corporate
rehabilitation and insolvency laws worldwide.
Statement of Problem
In today's globalized economy, businesses are increasingly expanding their
operations across borders. As a result, it has become crucial to understand and
analyze the corporate rehabilitation and insolvency laws in different
jurisdictions, including India, the United States, the European Union, and other
This comparative analysis aims to explore the similarities and differences in
these legal frameworks, with a specific focus on cross-border insolvency, in
order to identify the challenges and opportunities that arise for businesses
One of the key challenges in cross-border insolvency is the complexity
associated with dealing with assets and creditors in multiple jurisdictions. The
analysis will explore the approaches taken by India, the US, the EU, and other
major economies to address cross-border insolvency issues. This will help
identify the challenges faced by businesses and the potential for harmonization
or convergence of laws to streamline cross-border insolvency proceedings.
The analysis will also include case studies to illustrate the practical
implications of cross-border insolvency and the application of different laws.
These case studies will provide real-world examples of the challenges faced by
businesses and the outcomes of cross-border insolvency cases, contributing to a
deeper understanding of the topic.
In conclusion, this comparative analysis of corporate rehabilitation and
insolvency laws in India, the US, the EU, and other major economies seeks to
provide valuable insights into the challenges and opportunities presented by
cross-border insolvency. By examining the similarities, differences, and
practical implications of these legal frameworks, this analysis aims to
contribute to the ongoing discussions around harmonization and convergence of
laws, ultimately benefiting businesses engaged in international operations.
Scope and Limitation of Study
The Insolvency and Bankruptcy Code of 2016 defines companies and financial
entities as being subject to bankruptcy and insolvency legislation. Individual
bankruptcy and insolvency proceedings are not included in the scope of this
study. In this study, the legislative actions, judicial rulings, and best
practises developed in the United States of America, the European Union, and the
BRICS countries are compared and critically analyzed. Instead of analyzing
different consumer and RERA regulations for the purpose of homebuyers under the
2016 Insolvency and Bankruptcy Code, the study focused on corporations that deal
with real estate building rather than the consumer element of homebuyers.
To assess whether the Insolvency and Bankruptcy Code of 2016 will make it easier to leave a situation where doing business is uncomplicated.
To ensure that the Insolvency and Bankruptcy Code, 2016 will enhance the country's economic situation by easing the problem of non-performing assets and bad loans, as well as by further facilitating banks.
To propose recommendations for new policies that could strengthen and improve cross-border insolvency proceedings.
To analyze the bankruptcy predictive models and use them for the Indian context and track the outcomes.
To advocate the successful application of the business rehabilitation and insolvency framework through the use of predictive modeling.
To review laws from the US, EU, and other major countries that help to draw conclusions about the best practices for bankruptcy and insolvency.
- Whether it is possible to recover non-performing assets and bad loans in a practical and effective way within the purview of the Insolvency and Bankruptcy Code of 2016.
- How effectively will the Insolvency and Bankruptcy Code of 2016 support insolvency and rehabilitation processes, given the prior mandate did little to address the issue of non-enforcement.
- The concern of whether India can align its policies with the UNCITRAL Model Law on Insolvency and overcome the "centre of main interest" issue in order to create a strong cross-border insolvency process.
- Whether financial institutions or companies should anticipate and identify financial difficulty as soon as feasible to avoid bankruptcy.
Only if the "center of main interest" of a foreign debtor can be codified and
brought into compliance with the UNCITRAL Model Law on cross-border bankruptcy
would cross-border insolvency be successful in India.
The research methodology used in this study is a hybrid technique. The
researcher will carry out doctrinal study on the legal system regarding
bankruptcy and insolvency law with a focus on corporate rehabilitation using
critical analysis of primary and secondary sources. Additionally, the researcher
will use prediction models to experimentally assess decisions regarding
liquidation, insolvency, and similar actions (et cetera).
With the aid of decided judicial pronouncements, several listed firms, and their
current financial situations, this will be done to determine whether the
decision to exit/declare bankruptcy and insolvency was the right one in order to
make the case for the use of such models.
- Sumant Batra, Corporate Insolvency Law And Practice (1 ed. Easter Book
This book does study on the historical concepts of insolvency and debt
collection under earlier laws like SARFAESI, SICA, etc. The author also
makes an argument for how corporate insolvency is now handled in India. The
author concludes by providing a roadmap for the future of corporate
- Richard Sheldon, Cross-Border Insolvency (4 ed. Bloomsbury Professional
This book offers a thorough overview of international insolvency. The EC
Insolvency Regulation, the UNCITRAL Model Law on Cross-Border Insolvency,
section 426 of the UK's Insolvency Act 1986, and common law are among the
important cross-border insolvency regimes described in the first part. The
book's second portion concentrates on a few key topics in further detail,
including the court's insolvency jurisdiction, ancillary winding up,
enforcement of foreign insolvency judgements, enforcement of foreign
discharge of debts, and insolvency set-off.
- Insolvency resolution and doing business reforms in BRICS Nations: A
comparative study" by S. K. Gupta and R. K. Gupta:
This article analyzes the factors responsible for the efficacy of resolving
insolvency issues, influencing the ease of doing business reforms in BRICS
- Restructuring & Insolvency Laws & Regulations - Japan Chapter by ICLG:
This article covers common issues in restructuring and insolvency in Japan,
including issues that arise when a company is in financial difficulties,
restructuring options, insolvency procedures, tax, employees, and
- Corporate Restructuring And Insolvency: Critical Analysis Of Laws In
India by Anushka Rastogi : This article provides a critical analysis of the
current insolvency laws in India along with judicial pronouncements to
scrutinize if the legislations have achieved their intended purpose.
- Astudy of the insolvency laws and corporate rehabilitation in India
This chapter delves into the evolution of corporate insolvency laws in
India, leading up to the enactment of the Insolvency and Bankruptcy Code
(IBC) in 2016. It highlights the inadequacies of previous legislations, such
as the Companies Act of 1956 and the Sick Industrial Companies Act, which
were ineffective in dealing with insolvency issues and led to a low recovery
rate, contributing to a non-performing asset (NPA) crisis.
The lack of enforcement and several Supreme Court decisions adversely
affected banks' ability to recover money from hypothecated assets, resulting
in a downward spiral of insolvency proceedings. India's global ranking in
Ease of Doing Business suffered due to the inefficiency of insolvency
processes and low recovery rates.
The chapter also explores various methods of bankruptcy prediction, which
have evolved over time, aiding in the understanding of insolvency
proceedings and their potential juxtaposition with rehabilitation schemes.
The IBC, introduced as a new regime, shifted towards a
creditor-in-possession model. It established a Committee of Creditors (CoC)
to vote on resolution plans under the guidance of a resolution professional.
The chapter discusses key decisions of the Supreme Court, NCLAT, and NCLT
related to the IBC, including cases like Swiss Ribbon�, Pioneer
Infrastructure, Essar Steel, and Jaypee Infratech.
Subsequent amendments to the IBC aimed to enhance its effectiveness,
including eligibility criteria for resolution applicants, the inclusion of
homebuyers as financial creditors, and stricter adherence to timelines. The
chapter also acknowledges the IBBI's efforts to plug regulatory loopholes.
Furthermore, it emphasizes the need for ongoing reforms to improve India's
insolvency laws. The chapter contextualizes the rise of NPAs in the Indian
economy, primarily due to under-reporting by banks, and underscores the
critical role of the IBC in addressing these issues and streamlining the
- Financial institution performance analysis in relation to
non-performing assets from a bankruptcy and insolvency standpoint
The chapter discusses India's economic transformation from socialism to
liberalization in 1991, leading to increased foreign investment, job
creation, and greater capital flow in the banking sector. However, it also
led to the emergence of Non-Performing Assets (NPAs) as a significant
The researcher analyzes the pre-IBC regime, examining court decisions, RBI
circulars, and the surge in NPAs due to underreporting. The chapter also
delves into the 2008 financial crisis, citing Bear Stearns and Lehman
Brothers' failures, and highlights cases of corporate defaulters like Vijay
Mallya and Nirav Modi. It mentions legislative efforts to address these
issues and suggests improvements for the IBC regime.
- A comparison of the laws in the US, EU, and BRICS countries governing
corporate bankruptcy and insolvency
The researcher extensively analyzed normative frameworks related to
corporate insolvency in countries like the US, EU member states, and BRICS
nations. The focus was on tracing the evolution of bankruptcy filing in the
US, highlighting its shift from a creditor-based model to a more robust
system that facilitated business efficiency.
In contrast, the European Union developed its unique framework for corporate
and cross-border insolvency, raising debates on debtor-based vs. creditor-based
models and the feasibility of a common framework within a regional bloc. The
EU's model law, influenced by UNCITRAL, has emerged as a robust cross-border
The researcher also delved into the legal framework of BRICS nations and
contemplated the potential for a cross-border insolvency framework within this
bloc. International institutions like the World Bank and World Economic Forum
provided data analysis to offer a global perspective on insolvency regimes and
Award Winning Article Is Written By:
- Mr.Mayank Kansal, Semester: 1st, LLM Constitution - ICFAI Law School
- Mr.Ashish Kumar Singhal
Authentication No: OT329333095363-20-1023