Recovery of Dues to Foreign Creditors under IBC Code: An Insightful Guide

Are you a foreign creditor seeking to recover your dues from an Indian debtor under the Insolvency and Bankruptcy Code (IBC)? Navigating the complexities of cross-border insolvency can be challenging. But worry not, this blog post is here to help! Recovery of Dues to Foreign Creditors under IBC Code made easy

We will discuss the IBC Code’s provisions for foreign creditors, the process of recovering dues, and answer some frequently asked questions. So, let’s dive in and explore the recovery of dues for foreign creditors in the Indian context.

Table of Contents

1. Overview of the Insolvency and Bankruptcy Code
2. Foreign Creditor: Definition and Recognition under IBC
3. Recovery Process for Foreign Creditors under IBC
4. Challenges Faced by Foreign Creditors
5. Frequently Asked Questions (FAQs)

1. Overview of the Insolvency and Bankruptcy Code

The Insolvency and Bankruptcy Code (IBC) is a comprehensive legal framework enacted in 2016 to consolidate and amend the laws relating to insolvency and bankruptcy in India. The IBC Code aims to resolve insolvency in a time-bound manner, maximize asset value, and promote entrepreneurship. It applies to individuals, partnership firms, and companies, providing a single window for the resolution of insolvency and bankruptcy issues.

2. Foreign Creditor: Definition and Recognition under IBC

A foreign creditor is a person or entity residing or having a place of business outside India, who is owed a debt by an Indian debtor. Under the IBC Code, a foreign creditor is recognized and treated at par with domestic creditors, enabling them to initiate insolvency proceedings against an Indian debtor. This recognition is in line with the principle of non-discrimination and ensures a level playing field for both domestic and foreign creditors according to section 5(20) of IBC 2016 THE INSOLVENCY AND BANKRUPTCY CODE, 2016 , “operational creditor” means any person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred to.

3. Recovery Process for Foreign Creditors under IBC (Recovery of Dues to Foreign Creditors)

The recovery process for foreign creditors under the IBC Code is broadly similar to that for domestic creditors. Here’s a step-by-step guide to help you understand the process:

1. 1. 1. Filing the petition: Before filing the claim, the foreign creditor must file a petition with the National Company Law Tribunal (NCLT) to initiate the Corporate Insolvency Resolution Process (CIRP) against the debtor. The petition should include relevant documentation, proof of the debt, and a statement of the default. It’s essential to engage an experienced insolvency professional or a legal expert in India to help you navigate the process and ensure compliance with local regulations.
      2. Admission of the petition: If the NCLT is satisfied that a default has occurred and the petition meets the required criteria, it will admit the petition, appoint an IRP, and declare a moratorium on the debtor’s assets. The moratorium prohibits any legal actions or proceedings against the debtor during the CIRP.
      3. File a claim: As a foreign creditor, you must file your claim with the Interim Resolution Professional (IRP) or the Resolution Professional (RP), as the case may be. You can file your claim in the prescribed form, providing necessary details and proof of the debt owed.
      4. Verification of claims: The IRP or RP is responsible for verifying and admitting the claims filed by creditors, including foreign creditors. If the claim is found to be valid, it will be admitted and included in the list of creditors.5.
      5. Formation of the Committee of Creditors (CoC): A CoC is formed, comprising all financial creditors, including foreign creditors. The CoC plays a crucial role in the insolvency resolution process, including the approval of the resolution plan.
      6. Resolution plan: A resolution plan is prepared, outlining the proposed measures for the revival of the debtor or the liquidation of its assets. The CoC must approve the resolution plan with a 66% majority vote.
      7. Implementation of the resolution plan: Once the CoC approves the resolution plan, it must be submitted to the NCLT for final approval. Upon approval, the resolution plan is binding on all stakeholders, and the RP oversees its implementation.
      8. Recovery of dues: As a foreign creditor, your recovery of dues will depend on the resolution plan’s terms and the priority of your claim. Secured creditors generally have priority over unsecured creditors, while operational creditors may receive lower priority. Ensure that your claim is correctly classified to maximize your chances of recovering dues.

   4. Challenges Faced by Foreign Creditors

   Despite the IBC Code’s inclusive provisions, foreign creditors often face challenges in recovering their dues. Some of the common challenges include:

   1. 1. • Lack of familiarity with Indian laws and regulations: Foreign creditors may find it challenging to navigate India’s complex legal system, especially if they are unfamiliar with the IBC Code and other relevant laws.
         • Language barrier: Communication issues may arise due to language barriers, as most legal documents and proceedings in India are conducted in English, which might not be the foreign creditor’s native language.
         • Time-consuming process: While the IBC Code aims for a time-bound resolution process, delays may occur due to procedural complexities and legal challenges, prolonging the recovery of dues.
         • Exchange rate risk: Foreign creditors are exposed to exchange rate fluctuations, which could impact the value of their recovered dues in their home currency.

   5. Frequently Asked Questions (FAQs)

   1. Can foreign creditors initiate insolvency proceedings against Indian debtors under the IBC Code?

   Yes, foreign creditors can initiate insolvency proceedings against Indian debtors under the IBC Code, as they are recognized and treated at par with domestic creditors.

   2. What is the role of the Committee of Creditors (CoC) in the insolvency resolution process?

   The CoC, comprising all financial creditors, including foreign creditors, plays a crucial role in the insolvency resolution process. Their responsibilities include appointing and replacing the Resolution Professional, approving the resolution plan, and making decisions regarding the debtor’s assets and liabilities.

   3. How can foreign creditors recover their dues under the IBC Code?

   Foreign creditors can recover their dues by filing a petition with the NCLT to initiate the CIRP against the debtor, submitting their claims to the IRP or RP, and participating in the CoC. The recovery of dues will depend on the resolution plan’s terms and the priority of the creditor’s claim. Secured creditors generally have priority over unsecured creditors, while operational creditors may receive lower priority. Ensure that your claim is correctly classified to maximize your chances of recovering dues.

   4. What steps should foreign creditors take to ensure a smooth recovery process under the IBC Code?

   Foreign creditors should take the following steps to ensure a smooth recovery process under the IBC Code:

   1. 1. • Engage an experienced insolvency professional or a legal expert in India to help you navigate the process and ensure compliance with local regulations.
         • File a petition with the NCLT, providing relevant documentation, proof of the debt, and a statement of the default.
         • Submit your claim to the IRP or RP in the prescribed form, providing necessary details and proof of the debt owed.
         • Participate actively in the CoC and stay informed about the insolvency resolution process.

   Conclusion

   Recovering dues as a foreign creditor under the Insolvency and Bankruptcy Code can be a complex and time-consuming process. However, with the right knowledge and guidance, foreign creditors can successfully navigate the Indian legal system and maximize their chances of recovering dues. By understanding the IBC Code’s provisions, the recovery process, and addressing potential challenges, foreign creditors can effectively protect their interests and ensure a favorable outcome.