Kristin van Zwieten

Abstract: India is poised for significant reform to its corporate insolvency laws, including the introduction of a new rescue procedure. The reforms follow two decades of sustained criticism of the law, critics complaining of lengthy delays and a range of related costs in the disposal of proceedings. This article focuses on the most notorious of India’s existing insolvency procedures, a corporate rescue procedure established under the Sick Industrial Companies (Special Provisions) Act 1985. On the eve of its repeal, the article presents the results of an investigation into how this Act operated over time, and why. Its central contribution is to report new evidence of the influence of the courts on the operation of the Act. The article reveals how key provisions of the Act were interpreted and reinterpreted by judges in attempts to rescue companies destined for liquidation, and to protect some of their stakeholders (especially employees) in the interim. The evidence of these innovations offers a new and compelling explanation for why the rescue procedure became slow and costly. Acknowledging and understanding the influence of the courts on the operation of this procedure may help to guard against India’s new corporate rescue procedure suffering a similar fate.

Abstract: The insolvency provisions of the Cape Town Convention and associated Protocols are considered integral to the achievement of the economic objectives of the Convention project. This article begins with the history of the insolvency provisions, tracing their evolution from a modest rule for the recognition of Convention interests in insolvency to a robust package of substantive rules on the effectiveness, priority, avoidance, and enforcement of Convention interests in insolvency proceedings. It then turns to consider the provisions in detail, illustrating their likely application with some hypothetical scenarios featuring airline and railroad debtors. The concluding section discusses the perceived significance of the insolvency provisions to the Convention project as a whole, and their predicted economic impact.