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Lok Sabha passes the Insolvency and Bankruptcy Code (Second Amendment) Bill 2020

The Ordinance prohibits the initiation of insolvency proceedings for defaults arising during the six months from March 25, 2020 (extendable up to one year).

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The Lok Sabha has passed The Insolvency and Bankruptcy Code (Second Amendment) Bill, 2020.

The Insolvency and Bankruptcy Code allows a corporate debtor as well as its creditors to initiate an insolvency resolution process. The Ordinance prohibits the initiation of insolvency proceedings for defaults arising during the six months from March 25, 2020 (extendable up to one year).

A director or a partner may be held liable if despite knowing that insolvency proceedings cannot be avoided, he did not exercise due diligence in minimising the potential loss to the creditors. The Ordinance removes this provision for defaults in the above period.

Key Issues and Analysis

The suspension of the insolvency resolution process raises several issues. First, it prohibits resolution even in cases where that may be the best way to preserve the value of assets. Second, it removes the option of a debtor to avail of the insolvency process for restructuring. Third, it is unclear why insolvency proceedings against specified defaults have been prohibited forever.

It may be questioned whether a personal guarantor to a corporate debtor should undergo insolvency proceedings for defaults for which insolvency proceedings are not allowed against the debtor

HIGHLIGHTS OF THE ORDINANCE

The Insolvency and Bankruptcy Code, 2016 provides a time-bound process to resolve insolvency among companies and individuals. Insolvency is a situation where an individual or company is unable to repay their outstanding debt. In light of the COVID-19 crisis, the World Bank identified two key challenges for an insolvency framework: (i) need to prevent otherwise viable firms from prematurely being pushed into insolvency and (ii) increase in the number of firms that will not survive the crisis without resolution of insolvency.

In India, the threshold of default for initiation of insolvency proceedings was raised from one lakh rupees to one crore rupees. Further, regulations were amended to provide that the lockdown period will not be counted in the timeline for ongoing proceedings for certain activities. In this context, the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2020 was promulgated on June 5, 2020. The Ordinance notes that COVID-19 has created uncertainty and stress for businesses for reasons beyond their control and it is difficult to find an adequate number of resolution applicants to rescue the corporate debtor who may default in discharging their debt.

Key Features Prohibition on the initiation of insolvency proceedings for certain defaults:

The Code allows the corporate debtor as well as its creditors to initiate insolvency resolution process. The Ordinance provides that for defaults arising during the six months from March 25, 2020 (extendable up to one year), no insolvency proceedings can ever be initiated by either the corporate debtor or its creditors.

Liability for wrongful trading:

A director or a partner of the corporate debtor may be held liable to make personal contributions to the assets of the company in certain situations. This liability will occur if despite knowing that the insolvency proceedings cannot be avoided, the person did not exercise due diligence in minimising the potential loss to the creditors. The resolution professional may apply to the NCLT to hold such persons liable. The Ordinance prohibits the resolution professional from filing such an application in relation to the defaults for which insolvency proceedings have been prohibited.

Bar on the initiation of insolvency resolution process for certain defaults

The Insolvency and Bankruptcy Code, 2016 (IBC) allows the corporate debtor as well as its creditors to initiate the insolvency resolution process. The Ordinance provides that for defaults arising during the six months (extendable up to one year) from March 25, 2020, no insolvency proceedings can ever be initiated by either the corporate debtor himself or any of its creditors. We discuss some related issues below.

Need for the complete suspension of the corporate insolvency resolution process

The Ordinance prohibits initiation of insolvency proceedings against defaults arising during the specified period. This raises the question whether a complete suspension is required. On one hand, there is a need to safeguard companies, which were viable before the pandemic and whose insolvency is temporary, from being prematurely pushed into insolvency. On the other hand, a complete suspension of insolvency proceedings may take away a distressed company’s opportunity to seek recourse under the IBC framework. For certain companies, the deferral of insolvency proceedings may lead to further deepening of their financial stress and the resultant loss in value.

The Ordinance also states that it is difficult to find an adequate number of resolution applicants during this period. This may increase the risk of liquidation of a company which could have been rescued by sale as a going concern in a normal situation. However, another possible outcome of an insolvency resolution process is debt restructuring where debt obligations are reorganised to resolve insolvency, but the company is not sold to a third-party buyer. In United Kingdom, for instance, the insolvency law was amended in June 2020 to provide certain new types of restructuring options for companies facing financial difficulty.

Further, it raises a question whether all defaults during the specified period need to be treated in the same manner. There may be defaults which were not induced due to COVID-19 related disruptions but are a result of distress in companies before the pandemic. That said, whether a default is induced by COVID-19 or not will be subject to interpretation and may lead to disputes which can result in increased litigation.

Corporate debtor is prohibited from initiating insolvency proceedings

The Ordinance prohibits the initiation of insolvency proceedings by the corporate debtor. The question is whether the corporate debtor should be prohibited from initiating insolvency proceedings. The corporate debtor may be better placed to assess whether the recourse under the insolvency framework is warranted. A voluntary and timely initiation of insolvency proceedings by an insolvent debtor could maximise the benefits for the debtor as well as creditors. Note that in countries such as Spain, Germany, and France, while creditor-initiated insolvency proceedings were restricted and the duty of the debtor to file for insolvency were relaxed, voluntary insolvency proceedings by the debtor have been allowed.

Insolvency proceedings against the specified defaults are prohibited forever

The Ordinance states that no insolvency proceedings can ever be initiated against defaults occurring during the specified period. This could result in a scenario where creditors are unable to hold the company liable for these defaults even after the company’s ability to repay has been restored. It is unclear why a debtor should be protected from the liability for these defaults even after its temporary adverse situation has been resolved.

Initiation of insolvency proceedings against the personal guarantor to a corporate debtor

Under the Code, insolvency proceedings can be initiated against the personal guarantor of a corporate debtor. This is an individual who provides a guarantee for the debt of a corporate debtor. While the Ordinance prohibits insolvency proceedings against the corporate debtor for the defaults occurring during the specified period, it does not disallow such action against the personal guarantor. The question is whether the personal guarantor should be held liable for defaults for which the original debtor’s liability itself has been relaxed.

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India extends $1 billion credit line to Central Asian countries for priority projects

Besides the $1-billion line of credit, India offered grant assistance for high impact community development projects to boost socio-economic development in Central Asia.

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India on Wednesday extended a $1-billion line of credit to Central Asian countries for priority projects in connectivity, energy, IT and health care, with the move being perceived as part of New Delhi’s efforts to boost its role as a transparent development partner.

The line of credit was welcomed by ministers of Kazakhstan, Tajikistan, Kyrgyz Republic, Turkmenistan and Uzbekistan during the second meeting of the India-Central Asia Dialogue held via video conference under the chairmanship of external affairs minister S Jaishankar. Acting Afghan foreign minister Haneef Atmar joined the meeting as a special invitee.

The meeting discussed cooperation in political and security matters, and all the countries called for settling the Afghan conflict on the principle of an “Afghan-led, Afghan-owned and Afghan-controlled peace process”, according to a joint statement. The countries also condemned terrorism and reaffirmed their determination to destroy terrorist safe havens, networks, and funding channels.

In a tacit reference to Pakistan, the joint statement said: “They also underlined the need for every country to ensure that its territory is not used to launch terrorist attacks against other countries.”

Jaishankar told the meeting: “India and Central Asia share ancient historical and cultural linkages. We consider Central Asia as India’s ‘extended neighbourhood’.” He added, “We face common challenges of terrorism, extremism, drug trafficking… All these commonalities make us a natural partner in our developmental journey.”

Besides the $1-billion line of credit, India offered grant assistance for high impact community development projects to boost socio-economic development in Central Asia.

The ministers emphasised the importance of connectivity in increasing trade and commerce between India and Central Asia, and appreciated New Delhi’s efforts to modernise Chabahar port in Iran as an important link in trade and transport between markets in Central and South Asia, the joint statement said. The ministers agreed to promote joint initiatives to create regional and international transport corridors.

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Failing to pay property tax by Oct 31 may land Gurugram property owners in trouble

Charitable educational institutions, charitable hospitals and special schools for children, which charge the same fees as government schools and hospitals, are given a 100 per cent exemption.

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Gurugram: Property owners in Gurugram can lose their water and sewage connections if they fail to clear their property tax dues by October 31, officials of the Municipal Corporation of Gurugram (MCG) said on Wednesday.

According to the MCG officials, as per the notification issued by the Haryana government, only three days are left to avail the benefit of exemption in the payment of property tax issued by the MCG.

According to the notification, the government is giving an interest waiver and 25 per cent rebate to those paying their entire property tax dues by October 31.

“We have given a last opportunity to the property owners to pay their dues within the next three days. If they still do not pay their property tax, the process of cutting their sewer and drinking water connections will be initiated by the civic authority from November 1,” MCG Commissioner Vinay Pratap Singh said.

“A special drive to seal commercial buildings will be carried out and the process of auction can also be adopted by sealing the building,” he added.

As per the government notification, property owners who deposit their entire outstanding property tax by October 31 will be given a 25 per cent exemption on property tax from 2010-11 to 2016-17.

“Property owners who have deposited their property tax in the last three years till October 31, will be given an additional 10 per cent rebate along with the regular 10 per cent rebate. Those paying by auto debit mode will get the benefit of an additional 5 per cent discount,” an MCG official said.

Charitable educational institutions, charitable hospitals and special schools for children, which charge the same fees as government schools and hospitals, are given a 100 per cent exemption.

The officials further informed that the civic body has also started an incentive scheme for all the resident welfare associations (RWAs) of the city. Municipal corporations will give an incentive amount of Rs 5 lakh to the RWAs which submit property tax of more than 80 per cent.

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‘Who the hell are you?’, US lawmakers scold Twitter, Facebook, Google CEOs

In opening statements, Dorsey, Zuckerberg and Pichai spoke to the proposals for changes to Section 230. Zuckerberg said Congress “should update the law to make sure it’s working as intended.”

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New York, Oct 29 : “Baloney!”, “sham!” and “who the hell are you” scoldings dominated a Senate hearing on Wednesday where the CEOs of Twitter, Facebook and Google took heat in a talking match with US lawmakers over the idea of free speech and alleged anti-conservative bias on the companies’ mighty platforms.

The Congressional grilling quickly shifted into the realm of political circus around the social media content moderation dumpster fire.

With less than a week to go for the US election, Republican lawmakers got an earful from critics for the timing of the “sham” hearing.

At the heart of the heated arguments were 26 words tucked away in a 1996 US law – Section 230 of the 1996 Communications Decency Act.

Section 230 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

Under American law, Internet firms are typically exempt from liability for content that users post on platforms. President Donald Trump has challenged this via executive order which threatens to strip those protections if online platforms wade into “editorial decisions”.

For 3 hours and 42 minutes, the CEOs of Twitter, Facebook and Google were at the receiving end of a firehose version of bipartisan alarm over their phenomenal power to influence behaviour at scale.

The Republicans’ drumbeat centered on Facebook’s and Twitter’s decision earlier this month to slam the brakes on an unverified political story from the conservative-leaning New York Post about Democratic presidential nominee Joe Biden. The story cited unverified emails from Biden’s son Hunter.

Trump acolytes jumped on the chance to prove their loyalty. One of them called Twitter’s action on the newspaper “a pattern of censorship and silencing Americans with whom Twitter disagrees”.

For their part, Twitter, Facebook and Google have struggled to frame exactly how they would intervene and in how many scenarios. And what about content that doesn’t fall into their precast rubric or categories of bad stuff? The answers have been less than clear.

Of the three companies, Facebook’s sway over behavioural targeting has raised a string of red flags in the context of the US 2020 election.

Multiple lawmakers pushed back against the idea of “unelected San Francisco elites” deciding if content makes the grade or not.

In opening statements, Dorsey, Zuckerberg and Pichai spoke to the proposals for changes to Section 230. Zuckerberg said Congress “should update the law to make sure it’s working as intended.”

Google CEO Sundar Pichai said that if Google was “acting as a publisher”, he would be okay with the company being liable for content published on its platform.

Wednesday’s hearing comes barely a week after the US Justice Department’s landmark antitrust lawsuit against Google which argues that both advertisers and regular people are harmed by the tech giant’s position as “the unchallenged gateway to the Internet for billions of users worldwide.”

Warnings abound of the coming restrictions and for the “free pass” to end, maybe on the other side of the election results.

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