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When Justice Meets Commerce: Unraveling the Mysteries of Foreign Arbitral Awards in India’s Cross-Border Insolvency Arena
( Abeer Tiwari ) , ( Ovi Tashildar )
The Asian Business Lawyer 36권 143-163(21pages)
DOI 10.36532/ABL.2025.36.143

The interaction of insolvency laws and International Arbitration in the Indian context presents a stiff jurisprudential web of issues under the Insolvency and Bankruptcy Code, 2016 (“IBC”) and the Arbitration and Conciliation Act, 1996 (“Arbitration Act”). The jurisprudential tussle emanates from the IBC prioritising safeguarding the assets via the statutory moratorium period as envisaged under section 14 of the Act, along with collective creditor resolution. In contrast, the Arbitration Act focuses on the autonomy of the parties along with the cross-border enforceability per the New York Convention. The analysis circumnavigates the issues about the provision of the automatic moratorium as envisaged under section 14 of the IBC, which halts all the debt-enforcement mechanisms, including that of arbitration proceedings against a corporate debtor. This provision is often surpassed by foreign creditors owing to a lack of a formal cross-border insolvency framework along with reciprocal agreements of foreign states with India, as was made evident in the ‘Go First Airlines’ insolvency proceedings. This loophole transgresses the IBC’s creditor-parity principle and risks asset fragmentation. Additionally, contravention to public policy in India as envisaged under section 48(2)(b) of the Arbitration Act as established in Cruz City 1 Mauritius Holdings v. Unitech.1 This paper argues that the lack of uniformity of orders as passed by the national Company Law Tribunal (“NCLT”) alongwith the exclusive jurisdiction of the NCLT requires a systematic legal overhaul, especially with regard to the claims pertaining to cross-border insolvency.2 This paper explores possible avenues to reconcile the insolvency framework with the basic tenets of arbitration to ensure that foreign arbitral awards are enforced in a manner that aligns with the insolvency landscape by drawing inspiration from a comparative jurisdictional assessment from that of the United Kingdom (Riverrock doctrine) and Singapore (integrated arbitration-insolvency frameworks). Additionally, as a part harmonisation of the procedure whilst any insolvency proceedings are initiated on the basis of foreign awards, this paper proposes a three- step test specifically for the NCLT. The aforementioned test shall be presented in contrast to similar jurisprudence evolved in the United Kingdom and Singapore to ensure that the objectives of both the acts, namely the Arbitration Act and IBC are met, and align with the UNCITRAL Model Law.

Ⅰ. Introduction
Ⅱ. Meaning and Definition of Cross-Border Insolvency
Ⅲ. Enforcement of Foreign Arbitral Awards in India
Ⅳ. Enforcement of Foreign Awards in Cross-Border Insolvency
Ⅴ. The Way Forward & Concluding Remarks
Ⅵ. Conclusion
[자료제공 : 네이버학술정보]
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