INSOLVENCY MEETS ARBITRATION Convergence, Conflict, And Co-Existence In Asia

1. Introduction

Insolvency and arbitration have traditionally occupied separate spaces: one collective and court-supervised, the other private and consent-based. That separation is breaking down.

Across Asia, distressed companies are parties to ongoing arbitral proceedings, arbitral awards are being pursued against insolvent entities, and restructuring moratoria are colliding with arbitral proceedings in ways that neither the law of insolvency nor the law of arbitration has cleanly resolved.

This paper explores the points of convergence and conflict between insolvency and arbitration in Asia, and examines how practitioners, officeholders, courts and tribunals can navigate both systems simultaneously.

2. Primary Aspects interdicting Insolvency and Arbitration proceedings

2.1 The effect of the commencement of insolvency proceedings on a pending arbitration

In India, the moratorium under section 14(1)(a) of the IBC is drafted deliberately widely. It prohibits the "institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority".¹ The Supreme Court in P. Mohanraj v. Shah Brothers Ispat confirmed that this language is deliberately broad, extending even to quasi-criminal proceedings under the Negotiable Instruments Act, and by clear implication to arbitral proceedings against the corporate debtor.²

The practical fault line is not whether the moratorium applies, but at what stage of the arbitration it applies. Tribunals in India have distinguished between (a) claims brought by the corporate debtor, which may continue since they are for the debtor's benefit; (b) counterclaims against the debtor, which may be adjudicated but not executed during the moratorium; and (c) challenge and enforcement proceedings under sections 34 and 36 of the Arbitration and Conciliation Act, 1996, which are themselves treated as proceedings against the debtor and therefore barred.

In Jharkhand Bijli Vitran Nigam Ltd. v. IVRCL Ltd., the NCLAT permitted an arbitral tribunal to adjudicate both a claim and counterclaim, directing that the award be kept in sealed cover, with any sum found payable by the corporate debtor incapable of recovery until the moratorium is lifted.³ The Delhi High Court adopted the same reasoning in SSMP Industries v. Perkan Food Processors, asking whether continuation of the proceeding would endanger, diminish, or dissipate the debtor's assets, rather than applying section 14 mechanically.

2.2 Control and pursuit of claims by liquidators and insolvency officeholders in the arbitral context

A related and increasingly litigated question is whether a corporate debtor facing an admitted insolvency petition can resist that petition by invoking an arbitration clause and seeking a reference under section 8 of the Arbitration and Conciliation Act (Power to refer parties to arbitration where an arbitration agreement exists). In Indus Biotech Private Limited v. Kotak India Venture (Offshore) Fund, the Supreme Court held that once a section 7 petition has been admitted on a finding of debt and default, the dispute becomes non-arbitrable; but where the NCLT has not yet recorded such a finding, and the underlying dispute is genuinely contractual, a simultaneous section 8 application can succeed, and the insolvency petition can be dismissed.⁴ The decision creates a structured, sequential test: default first, arbitrability second, a sequencing that officeholders now use to resist speculative or strategically-timed insolvency filings designed to sidestep an arbitration clause.

For officeholders once appointed, the practical questions are different: whether the resolution professional or liquidator has standing to continue, defend, or newly commence an arbitration on the corporate debtor's behalf, whether committee of creditors' approval is required for settlement of arbitral claims that form part of the estate, and how an arbitral claim receivable is valued and disclosed in the information memorandum for resolution applicants. These questions remain largely unlegislated in India and are resolved case by case by the adjudicating authority.

2.3 Enforcement of arbitral awards against distressed or insolvent parties

This is the point of sharpest current conflict, both in India and across the common law world. Until 2024, the leading English authority, Salford Estates (No 2) Ltd v Altomart Ltd (No 2), held that a winding-up petition should ordinarily be stayed or dismissed in favour of arbitration wherever the underlying debt was not admitted and was covered by an arbitration clause, even absent any genuine dispute on the merits.

The Privy Council overturned this position in Sian Participation Corp v. Halimeda International Ltd, holding that a winding-up petition should be stayed or dismissed in favour of arbitration only where the debt is "disputed on genuine and substantial grounds", a materially higher threshold. The Board reasoned that "none of the general objectives of arbitration legislation... are offended by allowing a winding up to be ordered where the creditor's unpaid debt is not genuinely disputed on substantial grounds."⁵

Hong Kong has explicitly departed from the UK Privy Council’s ruling in the Sian Participation Judgment. Its Court of Final Appeal in Re Lam Kwok Hung Guy had already established that a winding-up petition will be stayed where the debt is covered by an exclusive jurisdiction or arbitration clause, unless there is a risk of prejudice to other creditors or the dispute is frivolous or an abuse of process.⁶ This was reaffirmed by the Hong Kong Court of Appeal in Re Simplicity & Vogue Retailing and Re Shandong Chenming Paper Holdings in 2024, meaning that Hong Kong and Singapore have continued to apply the Guy Lam approach rather than the Sian approach.⁷ Malaysia's Federal Court adopted the Sian approach in V Medical Services v Swissray Asia Healthcare in January 2025. This is now a live, first-order regional split that Asian practitioners and courts will need to navigate: the same disputed debt could be treated very differently depending on whether the relevant petition is filed in a Sian-following or a Guy Lam-following jurisdiction.

India has no directly equivalent line of authority because the IBC's moratorium operates automatically on admission rather than through a discretionary stay mechanism triggered by an arbitration clause. But the underlying policy tension, whether to privilege the collective, court-supervised insolvency process or the parties' private bargain to arbitrate, is identical, and Indian tribunals draw on this comparative learning.

2.4 Public policy considerations at the intersection of the two regimes

Two distinct public policy strands recur across the jurisdictions surveyed. First, the concern that arbitration, being confidential and consent-based, should not be permitted to override the collective and pari passu character of insolvency distribution, effectively allowing a single creditor to extract preferential treatment or dissipate the estate before other creditors can act. Second, the competing concern is that treating an arbitration clause as automatically defeated by a debtor's mere assertion of insolvency, or by a unilateral filing, invites strategic and defensive insolvency filings designed purely to escape an unfavourable forum or a looming adverse award.

The Sian Participation Board addressed the first concern directly, finding that existing safeguards in the company’s court are sufficient to prevent abuse of the insolvency process without also handing debtors a low-threshold route to defeat legitimate claims via arbitration.⁸ The Indian courts' distinction between adjudication and execution during the moratorium, permitting the former but not the latter, represents a comparable compromise: it protects the collective process at the point of actual asset depletion while allowing the arbitral process to do the work it is best suited for, namely determining liability.

2.5 The role of courts and tribunals in managing parallel processes where neither is clearly subordinate

The clearest Indian illustration remains Jet Airways (India) Ltd. v. State Bank of India, discussed in detail in Part 4 below, where the NCLAT, faced with simultaneous Indian and Dutch insolvency proceedings and no statutory basis for recognition, directed the resolution professional and the Dutch trustee to negotiate a bespoke cross-border insolvency protocol modelled on the UNCITRAL Model Law.⁹ The Singapore Court of Appeal's 2025 ruling in Sapura Fabrication Sdn Bhd v. GAS performs an analogous function for the insolvency-arbitration interface specifically, holding that a court asked to carve arbitration out of a Model Law moratorium retains full discretion and is not bound to prefer arbitration merely because the parties agreed to it.¹⁰ Both decisions share a structural insight: in the absence of clear legislative hierarchy, courts have tended to fashion multi-factor discretionary tests, timing of the application, nature and merits of the claim, risk of prejudice to other stakeholders, rather than a bright-line rule favouring either regime.

3. Challenges Facing India

3.1 The moratorium and arbitration

India has developed a workable but doctrinally unclear body of case law rather than a codified answer. The current position can be summarised as follows:

• Claims by the corporate debtor: may generally continue, since they are for the debtor's benefit and do not threaten the estate.
• Counterclaims against the corporate debtor: may be adjudicated alongside the debtor's claim, but any resulting liability cannot be recovered or executed during the moratorium.
• Section 34 challenge proceedings against an award favouring the debtor: held in Mohanraj to be a proceeding against the corporate debtor since it could result in an arbitral award against the debtor being upheld, and is accordingly treated as barred.
• Enforcement or execution under section 36: squarely barred, since execution is exactly the harm section 14 is designed to prevent.

There has also been internal inconsistency at the NCLAT itself. In Sobodh Kumar Agrawal v. EIH Ltd., the bench appeared to depart from the flexible approach upheld in Jharkhand Bijli, holding that a counterclaim against the corporate debtor could not be determined at all during the moratorium.¹¹ This area should therefore be treated as continuing and evolving, not a settled doctrine.

3.2 Section 238 overriding effect versus contractual autonomy

Section 238 of the IBC provides that the Code overrides anything inconsistent in any other law.¹² This creates a structural asymmetry with the Arbitration and Conciliation Act's own non-obstante clauses and with India's broader pro-arbitration posture since the 2015 and 2019 amendments. It is still a continuing point of consideration whether section 238's blunt overriding effect is calibrated finely enough for the arbitration context, given that most jurisdictions surveyed above have moved toward more nuanced, fact-sensitive tests rather than blanket statutory subordination.

3.3 Absence of a cross-border insolvency framework

India's cross-border insolvency framework remains, as of this note, largely aspirational. Sections 234 and 235 of the IBC, inserted at the recommendation of the Joint Parliamentary Committee, permit the Central Government to enter bilateral agreements and issue letters of request, but no such agreement has been operationalised in a way that gave the NCLT a basis to recognise the Dutch trustee's proceedings in Jet Airways.¹³ The Insolvency Law Committee's 2018 report recommended a draft Part Z, modelled on the UNCITRAL Model Law, and the Cross-Border Insolvency Rules/Regulations Committee refined this in 2020, but the chapter was never enacted.¹⁴

IBC Amendment 2026 - The most recent development is section 240C, inserted by the Insolvency and Bankruptcy Code (Amendment) Act, 2026, an enabling provision empowering the Central Government to frame cross-border insolvency rules; however, the provision has not yet been brought into force.¹⁵  Importantly, Section 240C does not itself codify the substantive mechanics of cross-border insolvency within the primary statute. Instead, it delegates rule-making authority to operationalise the framework.¹⁶ A central question remains as to whether the eventual rules will adopt the reciprocity-first approach recommended in 2018, recognising only proceedings from countries with a notified bilateral arrangement or their own Model Law enactment,¹⁷ or will move to the broader, non-reciprocal recognition model that most Model Law jurisdictions have adopted. (including the United States under Chapter 15, operates under a “universal access’ model, i.e. unlike India's requirement for a notified bilateral treaty or reciprocal Model Law enactment, the United States does not require reciprocity to grant recognition under Chapter 15)

4. The UNCITRAL Model Law on Cross-Border Insolvency, COMI, and Its Application

The UNCITRAL Model Law on Cross-Border Insolvency (1997) is the principal international instrument in this space. Its core architecture rests on four pillars: access for foreign representatives and creditors to the courts of the enacting state; recognition of foreign proceedings as either main (in the state of the debtor's Centre of Main Interests, or COMI) or non-main (in a state where the debtor merely has an establishment); automatic and discretionary relief on recognition, including a moratorium; and cooperation and direct communication between courts and officeholders in different jurisdictions.¹⁸ It has been adopted, in some form, in more than sixty jurisdictions, including the United States, the United Kingdom, Singapore, Japan, Korea, the Philippines, and Australia. India, China, and Hong Kong have not adopted it.

4.1 COMI as a contested, fact-sensitive concept

COMI is not statutorily defined with precision even in Model Law states; it is generally presumed to be the debtor's registered office, but that presumption is rebuttable by evidence of where the debtor's central administration, and the interests it is intended to protect, actually are. This is precisely the kind of fact-sensitive determination that produces disputes when a group's operating reality, and its treasury, financing, and board decision-making, sit in a different jurisdiction from its place of incorporation.

4.2 Case study: Jet Airways and India's ad hoc, judge-made COMI solution

Jet Airways, an Indian carrier with a substantial Amsterdam hub, entered insolvency proceedings in India before the NCLT Mumbai. At the same time, a Dutch bankruptcy administrator simultaneously commenced parallel proceedings in the Netherlands. When the Dutch administrator sought recognition before the NCLT, the tribunal refused, holding that the IBC contained no provision permitting recognition of a foreign proceeding absent a notified reciprocal arrangement under sections 234 and 235.¹⁹

On appeal, the NCLAT did not purport to manufacture a statutory recognition power the legislature had not granted. Instead, it directed the resolution professional and the Dutch trustee to negotiate a Cross-Border Insolvency Protocol, explicitly built on Model Law principles, under which India was recognised as Jet Airways' COMI and the Dutch proceeding was treated as a non-main proceeding; the Dutch administrator was permitted to participate in the Committee of Creditors.²⁰

The Jet Airways protocol demonstrates both the promise and the limits of judicial innovation in a legislative vacuum. It shows Indian tribunals are willing and able to apply Model Law concepts, including COMI, cooperative case management, and creditor participation, by consent even without a codified framework. But it also shows the limits of that approach: a case-specific, negotiated protocol is available only when both officeholders are willing to cooperate, provides no relief to a party that refuses to negotiate, offers no certainty for future cases, and creates no binding precedent on recognition as a matter of right.

4.3 Issues in India's proposed cross-border insolvency regime

• Reciprocity threshold: Draft Part Z would, on the Insolvency Law Committee's 2018 recommendation, confine recognition to proceedings from jurisdictions that have themselves enacted the Model Law or with which India has a notified arrangement, a materially narrower approach than the non-reciprocal model most Model Law states have adopted.²¹
• Scope: The draft framework is confined to corporate debtors and excludes personal insolvency, and separately excludes financial service providers such as banks, mirroring exclusions common in other jurisdictions but leaving a gap for financial institution insolvencies with cross-border footprints.²²
• Interaction with the arbitration regime: Neither the 2018 committee report nor section 240C as presently enacted (via amendment) addresses how a Model Law style automatic moratorium on recognition of a foreign main proceeding would interact with a pending or contemplated arbitration seated in India or abroad.
• Delay and legislative sequencing: More than seven years separate the Insolvency Law Committee's 2018 report and the enactment of the enabling section 240C in 2026, with substantive rules still pending; this history is itself a useful case study for the panel on the practical difficulty of legislating in this space even where the policy direction is broadly agreed.

5. Foreign-Seated Arbitration and Its Impact on Insolvency: The Amazon-Future and Go First Case Studies

5.1 Amazon v. Future Retail: SIAC arbitration colliding with domestic insolvency

This dispute is the most closely watched instance of the insolvency-arbitration interface in India, precisely because it unfolded across every relevant forum: an SIAC (Singapore International Arbitration Centre) emergency arbitrator, the Delhi High Court, the Competition Commission of India, the NCLT, and the Supreme Court.

• October 2020: Amazon invoked arbitration under a shareholders' agreement with Future Coupons Pvt Ltd, seated in New Delhi under SIAC Rules, seeking to block Future Retail's proposed Rs. 24,713 crore asset sale to Reliance Retail. An SIAC emergency arbitrator granted interim relief restraining the transaction.
• 2021: After a single judge of the Delhi High Court enforced the emergency award and a Division Bench stayed that order, the Supreme Court in com NV Investment Holdings LLC v. Future Retail Ltd held that an emergency arbitrator's order is enforceable in India as an order under section 17(1) of the Arbitration and Conciliation Act, 1996, a landmark and now settled proposition for India-seated institutional arbitration.²³
• July 2022: Notwithstanding the arbitration, Bank of India's (Independent Creditor) own Section 7 petition against Future Retail was admitted by the NCLT Mumbai, which rejected Amazon's intervention, holding that the emergency arbitrator's order created no injunction against the lenders exercising their independent contractual or statutory rights, and that Amazon had no locus standi to resist the lenders' insolvency petition.²⁴
• July 2024: Future Retail was ordered into liquidation, the arbitration having, by that stage, become largely theoretical as to the company's control, though the underlying damages claim continued.
• June 2025: The SIAC tribunal issued its final award in the separate Future Coupons arbitration, finding the Reliance-linked (Mukesh Dhirubhai Ambani) group to be a "Restricted Person" under the shareholders' agreement, but awarding Amazon only around Rs. 23.7 crore in damages against a claim of Rs. 1,436 crore, plus roughly Rs. 77.3 crore in costs. Future Coupons challenged the award under Section 34 in November 2025; the parties subsequently settled.²⁵
• March 2026: Amazon and Future Coupons entered into a settlement agreement; the Section 34 challenges were withdrawn, and the Delhi High Court subsequently disposed of the proceedings.

The enduring lesson of Amazon v. Future Retail is that an emergency arbitral order could not prevent, delay, or bind a creditor-driven insolvency petition brought by parties who were strangers to the arbitration agreement. Insolvency, once triggered by an independent creditor with an independent statutory right, proceeded on its own track regardless of the parallel arbitral process, illustrating starkly that arbitral relief binds only the parties to the arbitration agreement while an admitted insolvency petition operates in rem against the company and all its stakeholders.

5.2 Go First v. Pratt & Whitney: non-compliance with a foreign-seated award as the trigger for insolvency

In May 2023, there was a financial collapse and voluntary insolvency of the Indian airline Go First, which was triggered after serial engine failures by manufacturer Pratt & Whitney grounded half of its fleet. This case study inverts the usual sequence: rather than insolvency interrupting an arbitration, non-compliance with an arbitral award was the airline's own stated proximate cause for filing for insolvency. Go First had obtained an SIAC emergency arbitrator's order, seated in Singapore, directing Pratt & Whitney to release serviceable spare engines. When Pratt & Whitney did not comply, citing prior commitments to other customers, Go First filed a voluntary petition under section 10 of the IBC before the NCLT Delhi, with its public statement attributing the filing directly to Pratt & Whitney's non-compliance with the SIAC order.²⁶

Go First separately sought to enforce the Singapore-seated emergency award in the United States District Court for the District of Delaware; that application was denied in July 2023, with Pratt & Whitney characterising the underlying claim as unfounded.²⁷ However, on 5 July 2023, the SIAC merits tribunal vacated the emergency awards. The Delaware court subsequently denied Go First's confirmation application as moot, in light of the vacation of the awards. The case illustrates a distinct but related structural problem: the practical ineffectiveness of even a favourable foreign-seated emergency award where the counterparty is a large multinational with limited enforceable assets in the claimant's jurisdiction and success in a third jurisdiction's enforcement court is not assured.

6. Comparative Analysis: Asian and Common Law Approaches

(Note - Sources for the table above are as separately footnoted at each relevant point in Parts 2 to 5, and, for the general Model Law overview and the China note, see the cited comparative sources.²⁸,²⁹,³⁰)

7. Pending Disputes and Matters Requiring Continued Attention

• India: cross-border insolvency rules under section 240C. The rules remain unnotified as of now. How the Central Government resolves the reciprocity question, and whether it addresses the arbitration-moratorium interface at all, will be a unique development for Indian practice.³¹
• Byju's / Think & Learn insolvency proceedings. The Supreme Court's intervention in Glas Trust Company LLC v. Riju Ravindran, arising from the BCCI settlement dispute within the Think & Learn CIRP, has given a further illustration of the practical cost of India's continuing absence of a cross-border insolvency framework, given the group's significant offshore creditor base and overseas asset holdings.³² The Byju's dispute underscores that without a formalized cross-border framework, offshore creditors are forced into adversarial, multi-jurisdictional litigation to protect their interests. The Byju's/GLAS litigation illustrates the practical complications that can arise when an Indian CIRP intersects with parallel proceedings concerning offshore subsidiaries and assets. The Delaware proceedings concerning Byju's Alpha and the disputed USD 533 million proceeded alongside the Indian insolvency proceedings, requiring the parties and courts to manage overlapping issues across jurisdictions. This institutional disconnect heavily increased costs, delayed asset maximization, and left the resolution professional struggling to manage a corporate debtor whose debt and asset footprint was fundamentally global, but whose legal rescue remained strictly provincial.
• Post-Sian divergence across common law Asia. With England applying a materially different (higher) threshold than Hong Kong and Singapore for staying a winding-up petition in favour of arbitration, and Ireland recently endorsing the Sian approach in San Leon Energy v. Brightwaters Energy, the region faces a live and widening split that will affect forum selection and drafting of arbitration and jurisdiction clauses in cross-border finance and investment documentation.³³
• Cape Town Convention alignment. The Cape Town Convention is a landmark international treaty designed to protect aircraft lessors and financiers by standardizing security interests and enabling the swift repossession of aviation assets upon a debtor’s default. Historically, India's domestic insolvency framework conflicted with this treaty, as the automatic moratorium under Section 14 of the Insolvency and Bankruptcy Code (IBC) froze all assets and prevented lessors from reclaiming their aircraft. While the Ministry of Corporate Affairs issued a reactive notification in October 2023 exempting Cape Town Convention transactions from the Section 14 moratorium, a move directly prompted by international leasing downgrades during the Go First crisis, the underlying statutory friction remains an incomplete alignment exercise. Recent legislative overhauls, including the replacement of the colonial Aircraft Act with the Bharatiya Vayuyan Adhiniyam, 2024, demonstrate that India's aviation and insolvency regimes are still in transition. This continuing statutory evolutionary phase means that the enforcement of dispute resolution and arbitration clauses embedded in cross-border aircraft lease and financing documentation remains a critical area requiring close attention, as the exact boundaries between international treaty mandates and domestic insolvency courts continue to be litigated and redefined.
• SIAC and other Asian institutions' handling of insolvent respondents. The Go First / Pratt & Whitney sequence, in which a validly obtained SIAC emergency award proved practically unenforceable against a well-resourced multinational respondent and materially contributed to the claimant's own insolvency, raises a broader institutional question about the adequacy of emergency and expedited arbitration as a remedy where the respondent can absorb enforcement delay and the claimant cannot.³⁴

8. Conclusion

The intersection of insolvency and arbitration in Asia is moving from a question of conflict to one of managed co-existence. The emerging approach is increasingly pragmatic: arbitration should ordinarily remain available to determine rights and liabilities, while insolvency law must retain priority where individual enforcement could prejudice the collective interests of creditors.

For India, the immediate challenge is to move beyond case-by-case judicial solutions towards a clearer statutory framework, particularly on the treatment of pending arbitrations, arbitral awards, cross-border proceedings and the role of insolvency officeholders. The implementation of the framework contemplated by section 240C of the IBC may therefore become an important opportunity to address not only cross-border recognition, but also the unresolved interface between insolvency moratoria and arbitration.

Looking ahead, the direction of Asian practice is unlikely to be towards making either regime completely subordinate to the other. Instead, courts, tribunals and legislators will increasingly need to develop coordinated, jurisdiction-sensitive mechanisms that preserve party autonomy without undermining collective insolvency administration. The real question for the next phase is therefore not “insolvency or arbitration?”, but “how can both regimes operate coherently when they inevitably meet?”

Footnotes

^{1 Insolvency and Bankruptcy Code, 2016, s. 14(1)(a): the moratorium prohibits, among other things, "the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, decree or order in any court of law, tribunal, arbitration panel or other authority."}

^{2 P. Mohanraj v. Shah Bros. Ispat (P) Ltd., (2021) 6 SCC 258, decided 1 March 2021. The Supreme Court held that the moratorium under s. 14(1)(a) is deliberately worded widely to cover "institution, continuation, judgment and execution" of proceedings, including quasi-criminal proceedings under s. 138 of the Negotiable Instruments Act, 1881. (para 19)}

^{3 Jharkhand Bijli Vitran Nigam Ltd. v. IVRCL Ltd. (Corporate Debtor) & Anr., Company Appeal (AT) (Insolvency) No. 285 of 2018, NCLAT; followed in SSMP Industries Ltd. v. Perkan Food Processors Pvt. Ltd., CS(COMM) 470/2016, Delhi High Court.}

^{4 Indus Biotech Private Limited v. Kotak India Venture (Offshore) Fund, Arbitration Petition (Civil) No. 48 of 2019 with Civil Appeal No. 1070 of 2021, Supreme Court of India.}

^{5 Sian Participation Corp (In Liquidation) v. Halimeda International Ltd, [2024] UKPC 16 (Judicial Committee of the Privy Council, on appeal from the British Virgin Islands), decided 19 June 2024, overruling Salford Estates (No 2) Ltd v Altomart Ltd (No 2), [2014] EWCA Civ 1575.}

^{6 Re Lam Kwok Hung Guy, ex p Tor Asia Credit Master Fund LP, [2023] HKCFA 9 (Hong Kong Court of Final Appeal).}

^{7 Re Simplicity & Vogue Retailing (HK) Co Ltd, [2024] HKCA 299; Re Shandong Chenming Paper Holdings Ltd, [2024] HKCA 352 (Hong Kong Court of Appeal).}

^{8 Sian Participation Corp (In Liquidation) v. Halimeda International Ltd, [2024] UKPC 16 (Judicial Committee of the Privy Council, on appeal from the British Virgin Islands), decided 19 June 2024, overruling Salford Estates (No 2) Ltd v Altomart Ltd (No 2), [2014] EWCA Civ 1575.}

^{9 Jet Airways (India) Ltd (Offshore Regional Hub/Office through its Administrator Mr Rocco Mulder) v. State Bank of India and Anr, Company Appeal (AT) (Insolvency) No. 707 of 2019, NCLAT, order dated 26 September 2019, approving a Cross-Border Insolvency Protocol between the Resolution Professional and the Dutch bankruptcy administrator, recognising India as the corporate debtor's Centre of Main Interest (COMI) and the Dutch proceedings as non-main proceedings.}

^{10 Sapura Fabrication Sdn Bhd v. GAS, [2025] SGCA 13 (Singapore Court of Appeal), on appeal from the Singapore High Court's decision in Re Sapura Fabrications Sdn Bhd concerning a carve-out application under Article 20(6) of the UNCITRAL Model Law as enacted in the Third Schedule to Singapore's Insolvency, Restructuring and Dissolution Act 2018.}

^{11 Jharkhand Bijli Vitran Nigam Ltd. v. IVRCL Ltd. (Corporate Debtor) & Anr., Company Appeal (AT) (Insolvency) No. 285 of 2018, NCLAT, order dated 2018; followed in SSMP Industries Ltd. v. Perkan Food Processors Pvt. Ltd., CS(COMM) 470/2016, Delhi High Court, order dated 18 July 2019.}

^{12 Insolvency and Bankruptcy Code, 2016, s. 238 (overriding effect of the Code notwithstanding anything inconsistent in any other law).}

^{13 Insolvency and Bankruptcy Code, 2016, ss. 234 and 235 (bilateral agreements with foreign countries and letters of request), which the NCLT held in the Jet Airways matter did not permit recognition of the Dutch proceeding absent a notified reciprocal arrangement.}

^{14 Report of the Insolvency Law Committee on Cross-Border Insolvency, Ministry of Corporate Affairs, Government of India (16 October 2018), recommending a draft "Part Z" modelled on the UNCITRAL Model Law on Cross-Border Insolvency (1997); refined thereafter by the Cross-Border Insolvency Rules/Regulations Committee (CBIRC) report of 2020.}

^{15 The Insolvency and Bankruptcy Code (Amendment) Act, 2026 inserts s. 240C, an enabling provision empowering the Central Government to frame rules for cross-border insolvency; the provision had not been notified, and the rules remained in draft, as of the date of this note.}

^{16 https://globallawexperts.com/cross-border-insolvency-regime-under-ibc-amendments/}

^{17 Draft Part Z, as recommended by the Insolvency Law Committee (2018), conditions recognition of a foreign proceeding on reciprocity, so that recognition would in the first instance be confined to jurisdictions that have themselves enacted the UNCITRAL Model Law, or to countries notified under s. 234 of the IBC.}

^{18 UNCITRAL Model Law on Cross-Border Insolvency (1997), Arts. 2(b) to (e) (definitions of foreign main and non-main proceedings and COMI), Art. 17 (recognition), Art. 20 (automatic relief on recognition of a foreign main proceeding), and Art. 21 (discretionary relief). Adopted, in some form, in more than 60 jurisdictions, including the United States (Chapter 15, Bankruptcy Code), the United Kingdom, Singapore, Japan, Korea, the Philippines, and Australia, but not yet in India, China, or Hong Kong.}

^{19 Insolvency and Bankruptcy Code, 2016, ss. 234 and 235 (bilateral agreements with foreign countries and letters of request), which the NCLT held in the Jet Airways matter did not permit recognition of the Dutch proceeding absent a notified reciprocal arrangement.}

^{20 Jet Airways (India) Ltd (Offshore Regional Hub/Office through its Administrator Mr Rocco Mulder) v. State Bank of India and Anr, Company Appeal (AT) (Insolvency) No. 707 of 2019, NCLAT, order dated 26 September 2019, approving a Cross-Border Insolvency Protocol between the Resolution Professional and the Dutch bankruptcy administrator, recognising India as the corporate debtor's Centre of Main Interest (COMI) and the Dutch proceedings as non-main proceedings.}

^{21 Draft Part Z, as recommended by the Insolvency Law Committee (2018), conditions recognition of a foreign proceeding on reciprocity, so that recognition would in the first instance be confined to jurisdictions that have themselves enacted the UNCITRAL Model Law, or to countries notified under s. 234 of the IBC.}

^{22 PTI/Drishti IAS, "Draft Framework for Cross Border Insolvency", summarising the Insolvency Law Committee's recommendation and its rationale, including the carve-out for financial service providers such as banks from the cross-border regime.}

^{23 Amazon.com NV Investment Holdings LLC v. Future Retail Ltd & Ors, Civil Appeal Nos. 4492-4493 of 2021, Supreme Court of India, decided 6 August 2021 (holding an emergency arbitrator's order enforceable as an order under s. 17(1) of the Arbitration and Conciliation Act, 1996).}

^{24 NCLT Mumbai order dated 20 July 2022 admitting the s. 7 IBC petition of Bank of India against Future Retail Ltd; liquidation ordered 29 July 2024. See also IPLINK Asia, "Enforcing SIAC Awards in India: Lessons from the Amazon Future Group Saga" (2026).}

^{25 SIAC final award dated 26 June 2025 in the Future Coupons arbitration, awarding Amazon approximately Rs. 23.7 crore in damages against a claim of Rs. 1,436 crore, plus Rs. 77.3 crore in costs; challenge under s. 34 of the Arbitration and Conciliation Act, 1996 filed by Future Coupons in November 2025, subsequently settled. IPLINK Asia, "Enforcing SIAC Awards in India: Lessons from the Amazon Future Group Saga" (2026), https://www.iplink-asia.com/article-detail.php?id=1526.}

^{26 SIAC Emergency Arbitrator order dated April 2023 directing Pratt & Whitney to release serviceable spare engines to Go Airlines (India) Ltd; Go First's s. 10 IBC filing before NCLT Delhi, 2 May 2023, expressly attributed non-compliance with the award as a precipitating cause of the insolvency filing. Business Today, "How Go First can return to full operations by Sept 2023" (2 May 2023); Bloomberg, "Tycoon Wadia's Airline Files for Insolvency Citing Engine Snags" (2 May 2023).}

^{27 Go Airlines' motion to confirm the SIAC emergency award in the US District Court for the District of Delaware was denied in July 2023; Pratt & Whitney disputed the claim as unfounded. Deccan Herald, "US court denies Go First emergency arbitration in Pratt & Whitney dispute" (28 July 2023).}

^{28 UNCITRAL Model Law on Cross-Border Insolvency (1997), Arts. 2(b) to (e) (definitions of foreign main and non-main proceedings and COMI), Art. 17 (recognition), Art. 20 (automatic relief on recognition of a foreign main proceeding), and Art. 21 (discretionary relief). Adopted, in some form, in more than 60 jurisdictions, including the United States (Chapter 15, Bankruptcy Code), the United Kingdom, Singapore, Japan, Korea, the Philippines, and Australia, but not yet in India, China, or Hong Kong.}

^{29 For China's approach, mutual recognition and assistance in cross-border insolvency currently proceeds primarily through limited bilateral arrangements, most notably the 2021 Mainland China, Hong Kong SAR mutual recognition mechanism for insolvency proceedings in pilot cities, rather than through adoption of the UNCITRAL Model Law; Mainland courts have historically been cautious about recognising and enforcing foreign arbitral awards or insolvency orders against domestic assets, a caution frequently noted in comparative commentary on the region.}

^{30 Latham & Watkins, "Arbitration or Winding-Up? Privy Council Decision in Sian Participation Corp v Halimeda Overrules Traditional English Approach" (2024), noting that Hong Kong (together with Singapore and Malaysia) has, since Guy Lam, largely continued to apply a variant of the pre-Sian approach that favours a stay or dismissal in favour of arbitration or an exclusive jurisdiction clause, subject to defined exceptions.}

^{31 The Insolvency and Bankruptcy Code (Amendment) Act, 2026 inserts s. 240C, an enabling provision empowering the Central Government to frame rules for cross-border insolvency; the provision had not been notified, and the rules remained in draft, as of the date of this note.}

^{32 Glas Trust Company LLC v. Riju Ravindran, Civil Appeal No. 9986 of 2024, Supreme Court of India, order dated 23 October 2024, arising out of the BCCI settlement and insolvency proceedings against Byju's parent Think & Learn Pvt Ltd, cited as illustrating the continuing absence of a settled cross-border insolvency framework in India.}

^{33 San Leon Energy PLC v. Brightwaters Energy Ltd, [2026] IEHC 1, Irish High Court (Kennedy J), endorsing the Sian Participation approach in the context of a Nigerian pipeline project dispute.}

^{34 SIAC Emergency Arbitrator order dated April 2023 directing Pratt & Whitney to release serviceable spare engines to Go Airlines (India) Ltd; Go First's s. 10 IBC filing before NCLT Delhi, 2 May 2023, expressly attributed non-compliance with the award as a precipitating cause of the insolvency filing. Business Today, "How Go First can return to full operations by Sept 2023" (2 May 2023); Bloomberg, "Tycoon Wadia's Airline Files for Insolvency Citing Engine Snags" (2 May 2023).}

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