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    possibility of mediation in corporate insolvency

    Aug 05, 2020.

    31 March 2020

    By: Varuna Bhandari, Advocate, Supreme Court of India & Sumedh Yasaswi, Principal Associate, Atharva Legal

    The book "The Richest Man in Babylon", written by George S. Clason, is a classic in terms of personal finance and wealth management. It was written in the year 1926 and lists a few principles for accumulation and building of wealth and methods to navigate oneself in a financial crisis. It is more or less a "back to the basics" book on finance. The book at one-point talks about how one needs to deal with cases where their debts are more than their income and about how to deal with times when they are unable to discharge their debts when asked to repay. Clason mentions how an individual could deal with his inability to repay debts through the following story: "…Therefore have I visited my creditors and explained to them that I have no resources with which to pay except my ability to earn, and that I intend to apply two-tenths of all I earn upon my indebtedness evenly and honestly. This much can I pay but no more. Therefore, if they be patient, in time my obligations will be paid in full.

    Ahmar, whom I thought my best friend, reviled me bitterly and I left him in humiliation. Birejik, the farmer, pleaded that I pay him first as he didst badly need help. Alkahad, the house owner, was indeed disagreeable and insisted that he would make me trouble unless I didst soon settle in full with him. All the rest willingly accepted my proposal. Therefore, am I more determined than ever to carry through, being convinced that it is easier to pay one's just debts than to avoid them. Even though I cannot meet the needs and demands of a few of my creditors I will deal impartially with all."[i]

    What this story tells us is that sometime in 1926, the foundation was perhaps laid to a more amicable way of resolving insolvency. If one were to closely observe, the story above more or less resembles the modern insolvency framework, however, with the story showing more control exercised by the parties and the absence of any adjudicating authority. The similarities of the story with the modern-day insolvency framework are as follows:

    1. Constitution of a committee of creditors is similar to bringing the knowledge of the individual's inability to pay to all of his creditors.
    2. The Resolution plan in this case came from the individual himself stating that he would work and slowly but surely pay off the debts.
    3. The current version of the story does not mention this but in a few other versions, it was also mentioned that the individual had approached all the creditors and requested them not to pursue them any further because he wished to pay all of them in due course. This is similar to a modern-day moratorium under the code.

    What is very inspiring from the above story is how the parties have settled the issue amongst themselves without any interference from a third party and if such a model could be brought to light in today's setting, although easier said than done, would definitely push the rate of settlement of disputes.

    In an article written by J. A.K. Sikri, attention was drawn to how if the current IBC regime today is mostly used as debt recovery and not debtor rehabilitation then the true purpose ad objective of the code is lost. He says that this may result in a situation of tyranny of the Code, when it is otherwise a well-considered legislation.[ii]

    The Lehman Brothers, before filing for Bankruptcy in 2008, was the 4th largest investment bank in the United States. One of its arms was a counterparty to at least 1.2 million derivative transactions with more than 6,500 parties. In September 2009, the court ordered compulsory mediation for derivative contract disputes. As of 2016, 110 mediations have brought in $333 million from an outstanding claim of $9 Billion. 8 other Lehman Brothers companies were put in liquidation in Hong Kong with an estimate of 48,000 investors holding more than HKD 20 Billion in minibonds. In 2008, The HKMA (Hong Kong Monetary Authority) appointed the Hong Kong International Arbitration Centre (HKIAC) to administer a mediation scheme of the claims subject to references made by the HKMA and SFC and consent of both the parties for mediation. The scheme also provided for arbitration in case mediation failed, commonly known as 'med-arb' model. By 2009, 85 cases proceeded to mediation, of which full settlement was reached in over 85% of cases.[iii]

    Various countries are also moving towards adopting mediation in resolving insolvency disputes. For example, in the case of Singapore, about 17 recommendations were provided in the Report of the Committee to Strengthen Singapore as an International Centre for Debt Restructuring (the "Committee") [iv], all of which have been accepted by the Singapore Ministry of Law.[v]

    Mediation is a powerful tool in Individual insolvency cases. The challenge lies in implementing mediation schemes in a corporate setting. A simple example is that, many of the recommendations put forth by Singapore to promote out of court settlement of insolvency disputes have already been tried, implemented and abolished[vi] by India. The best illustration is that of the CDR[vii], SDR[viii], S4A[ix] and 5/25[x] schemes. Even the Joint Lenders Forum (JLF) as an institution for the resolution of stressed assets also stands discontinued.[xi] This is because the RBI had decided to harmonize all the provisions relating to handling of stressed assets under new guidelines directed by the Insolvency and Bankruptcy Code, 2016 since, in resolving the insolvency of an entity, time is of the essence and previously, this was ignored. Through the current regime, banks or other financial creditors are best equipped to understand the financial viability of a debtor and decide the best course of action[xii]. This is by far better than an attempt to mediate.

    Under the Indian Context, mediation is best possible before the appointment of the Committee of Creditors ('CoC'). For example, in Parvinder Singh v. Intec Capital Limited and another[xiii]a section 7 application was filed by Intec Capital Limited against Jagtar Singh & Sons Hydraulic Private Limited which was admitted by the Adjudicating Authority. Parvinder Singh, the authorized representative of the promoters of the Corporate Debtor, filed the present appeal and submitted that they were ready to settle the claims of the financial creditor. This was done before the CoC was constituted. The Hon'ble NCLAT directed the interim insolvency resolution professional to ensure that the corporate debtor remains a going concern. He was also directed not to constitute the CoC. Since the parties to the case agreed to mediate, a retired judge was appointed to mediate a settlement between the parties to the appeal. The proceedings were held and a settlement agreement was reached. The Appellate Tribunal held that the terms of the settlement recorded by the mediator should be treated as the order and directions of the Appellate Tribunal to be complied by all the parties. It was also noted that the corporate insolvency process can be revived by the petitioner in case of breach of the terms of the settlement agreement. The Tribunal directed the interim resolution professional to allow the corporate debtor to be operated through its Board of Directors on the condition that the Corporate Debtor and its board or officers shall not alienate or sell or transfer or create third party encumbrance on any of the movable or immovable property of the corporate debtor during the period of settlement are complied. The status of compliance is unknown.

    However, it is essential to remember that resolution of stressed assets are best possible if a time-bound effort is made. What happens when one goes back and forth while filing applications before the NCLT - going for mediation, defaulting obligations, filing a fresh application, fresh hearing, fresh appointment of interim resolution professional, fresh issue of public notices and then finally calling for the constitution of CoC (provided no appeals are made in between), is that a lot of time is wasted, which can be best utilized by creditors to ascertain the viability of the business and determine its course – whether to go for resolution or proceed with liquidation.

    Therefore, while mediation as an exercise can be carried out and while it may offer its own benefits, the relevancy of mediation in resolving the issue of stressed assets of a body corporate still remains a question. So far, other than the mentality of the creditors using the Code as a recovery mechanism instead of a rehabilitation framework, the Code is best suited for handling corporate insolvency.

    [i] 'The Richest Man In Babylon', George S. Clason, Signet, at Pg. 110.

    [ii] "Mediation in Corporate Insolvency: A Game Changer", Justice A.K. Sikri and Anuroop Omkar, BW BUSINESSWORLD, January 28,2020, available at http://www.businessworld.in/article/Mediation-In-Corporate-Insolvency-A-Game-Changer/14-06-2019-171872/

    [iii] Ibid

    [iv] Recommendations of The Committee, available at https://www.mlaw.gov.sg/files/news/public-consultations/2016/04/Recommendations%20of%20the%20Committee.pdf

    [v]  'Mediation in Singapore Insolvency Matters', Justin Yip, WithersWorldWide, available at https://www.withersworldwide.com/en-gb/insight/article/pdf/7647

    [vi] RBI/2017-18/131, DBR.No.BP.BC.101/21.04.048/2017-18, 12.02.2018, available at https://www.rbi.org.in/scripts/BS_CircularIndexDisplay.aspx?Id=11218

    [vii] Corporate Debt Restructuring – the reorganization of a company's debts and outstanding obligations

    [viii] Strategic Debt Restructuring – enacted with a view to revive stressed companies and provide lending institutions with a way to initiate change of management in companies which fail to achieve the milestones under CDR.

    [ix] Scheme for Sustainable Structuring of Stressed Assets – an optional framework, which envisages determination of the sustainable debt level for a stressed borrower, and bifurcation of the outstanding debt into sustainable debt and equity/quasi-equity instruments.

    [x] https://www.livelaw.in/law-firms/articles/possibility-of-mediation-in-corporate-insolvency-154575?infinitescroll=1

    [xi] Supra note 6.

    [xii] "4. All lenders must put in place Board-approved policies for resolution of stressed assets under this framework, including the timelines for resolution. As soon as there is a default in the borrower entity's account with any lender, all lenders − singly or jointly − shall initiate steps to cure the default. The resolution plan (RP) may involve any actions / plans / reorganization including, but not limited to, regularization of the account by payment of all over dues by the borrower entity, sale of the exposures to other entities / investors, change in ownership, or restructuring4. The RP shall be clearly documented by all the lenders (even if there is no change in any terms and conditions)." – Supra note 6.

    [xiii] 2020 (1) TMI 150 – National Company Law Appellate Tribunal, New Delhi.