The Indian Restructuring Growth Story

Introduction

In 2016, with the birth of the Insolvency and Bankruptcy Code, 2016 (“IBC”), for the first time in its history, the country witnessed a comprehensive legislation which provided for a consolidated insolvency regime, whether it be for companies, partnership firms or individuals.

This article discusses the applicability of IBC to companies in which the Government of India has a stake.

What the law does not say

The legal market in Scotland has changed over the last year, although perhaps not to the extent that anyone would have predicted. Firms have, in general terms, coped well with remote working and are beginning to cope well with hybrid working too. Traditional streams of work have been maintained and while some practice areas, such as insolvency and restructuring, have been quieter than anticipated, that has not had a significant impact on the bottom line. So, what can we expect in 2022?

1. Insolvencies will rise – even if we don’t experience the “tsunami”

Introduction

The Insolvency & Bankruptcy Code, 2016 (“IBC”) has been one of the most talked about debated, evolving legislations of recent times. It has brought with itself, a sea change in the manner that debt is resolved in India. From its very advent in late 2016, IBC has been embroiled in long fought interpretational tussles which have resulted in various gaps being filled in by the Supreme Court of India. In fact, the legislation itself has undergone several and frequent amendments.

Different countries frame the exact description of the role of directors of a company in different terms. One feature is common to all – the obligation not to continue trading if a company is insolvent. Again, the detailed implications of doing so vary from one jurisdiction to another. However, this obligation not to continue wrongful trading is at the heart of trust in a market-based economic system

During 2020, many countries revamped their insolvency laws, introducing temporary or permanent measures to aid and assist companies in financial distress. Governments acted quickly to put in place measures that changed laws, relaxed or suspended legal obligations and introduced new provisions aimed at supporting businesses during the pandemic and avoiding large scale insolvencies. 

1. State of the Restructuring Market

1.1 Market Trends and Changes

State of the Restructuring and Insolvency Market

There were 27,359 insolvencies in France as of the end of September 2021, down 25.1% from the same period in 2020, and down 47.9% from September 2019. Such reduction is relatively stable across all sectors, including those most severely affected by the health-related restrictions, such as accommodation and food services (down 44.2% year-on-year) and trade (down 28.1% year on year).

In relation to a secured party enforcing its rights under a mortgage or charge of shares in a BVI company, the secured party will typically exercise its rights under BVI law to sell the shares or to appoint a receiver in respect of them. Such rights may generally only be exercised after a default has occurred and has continued (without rectification for 14 days following notice of the default) for a period of at least 30 days. These time periods can be shortened by contractual agreement in the relevant security document.

Legislation Update

As foreshadowed in the last edition of Insolvency Insight the legislative provisions easing the restrictions on the presentation of winding up petitions entered into effect on 1 October 2021.

Passing the Golden Thread through the Eye of a Needle In Singularis 1 , as is well known, the Privy Council Board considered the doctrine of modified universalism whereby, broadly speaking, a court will give such assistance as it can to foreign insolvency proceedings, as is consistent with local law and local public policy, so as to ensure that a company's assets are distributed under a single system; and held by a majority that there is a common law power to assist a foreign insolvency, although the power could not be used to enable foreign liquidators to do something that they could not d