Abstract

Cross-border insolvency refers to the process of legally adjudicating with respect to debtors, creditors, or assets across multiple jurisdictions. With globalisation, the existing legal frameworks often do not keep pace with the complexities of the insolvency of a multinational enterprise. This paper assesses the important developments in cross-border insolvency from the perspective of doctrinal approaches, especially territorialism and universalism, and increasingly relevant modified universalism which foregrounds judicial cooperation. The study examines the development of important international instruments, including the UNCITRAL Model Law on Cross-Border Insolvency and the EU Insolvency Regulation, as well as domestic regimes in the USA, UK, and India. The case studies of Jet Airways, Lehman Brothers, Videocon, and Evergrande demonstrate the difficulty of cross-border insolvency in practice and identify issues including the COMI determination, the Rule in Gibbs, the public policy exception, and the approach to digital assets. The paper is a call for appropriate adoption of harmonised cross-border insolvency frameworks especially in India, and concludes by articulating that incremental legal convergence in the realm of cross-border insolvency is necessary to provide fair, efficient and predictable outcomes for firms in multinational insolvencies.

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