Tracing director liability framework during borderline insolvency & corporate failure in India

Abstract

The life of a company depends upon the fine balance between its management led by Board of Directors and shareholder, and non-shareholder constituencies acting as the risk bearers. The Board of Directors therefore are subjected to fiduciary duties towards both these constituencies at all financial phase of the company – solvency, insolvency and borderline insolvency. The director liability framework in India is currently split with obligations enshrined under the Companies Act, 2013 during solvency and Insolvency and Bankruptcy Code, 2016 during insolvency and borderline stage. The lack of judicial interpretation and scholarly discourse on the insolvent and borderline insolvent director liability framework has resulted in several practical challenges. To understand parallels, the paper comparatively analyzes the liability framework as existing under the corporate and insolvency laws of the United States and the United Kingdom with Indian insolvency law. The paper suggests that there is a need to align the Indian corporate and insolvency law through statutory measures to increase the remedial protections available to creditors during borderline insolvency. The paper also highlights mitigation measures which can be undertaken by the management to reduce the scope for director liability, until legislative or judicial clarity is provided on the framework.