Adding Mediation to India's Corporate Resolution Process

Abstract

India’s new insolvency law, the Insolvency and Bankruptcy Code, 2016 (“IBC”) was introduced with the aim of improving the efficiency of the resolution process. While there is much to be credited in the law, the practice of it has shown that the process is often delayed by excessive litigation. The aim of this article is 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.

Keywords: Insolvency, Mediation, India, Feminist Analysis, IBC