Differing insolvency regimes across jurisdictions have a very real effect on the conduct of international arbitration proceedings. Apart from sprouting parallel litigation, all-encompassing moratoriums and the threat of guerilla tactics, the arbitration itself may see increased costs, time and enforceability issues. The relevance of international arbitration in the event an insolvency of a party becomes crucially important in a world where arbitration remains as the most widely used mode for resolving cross border disputes. The interaction between insolvency and arbitration in England and Wales, and the BVI were recently harmonized by the UK Privy Council its decision in Sian Participation Corp (In Liquidation) v. Halimeda International Ltd (Virgin Islands). This article shows that the Sian standard aligns to some extent with the Indian treatment of insolvency and arbitration. First, the article provides an overview of the current insolvency regime under the Indian Insolvency and Bankruptcy Code, 2016. Second, it examines the case law interpretations of the IBC in context of an arbitration. Third, it concludes by tracing the similarities in the treatment of arbitration in context of an insolvency in these major common law jurisdictions, and the benefits that may accrue from such harmony.
Asian International Arbitration Journal