Written By: Apoorv Agarwal, Aastha
I. Introduction:
In the ever-evolving landscape of mergers and acquisitions (M&A), one contentious and complex facet stands out as a unique legal and economic challenge: the failing firm defense. This defense technique, which is frequently used by companies seeking regulatory permission for planned mergers or acquisitions, presents important issues at the junction of antitrust law, market competition, and economic policy. In the pages that follow, we will dig into the multidimensional realm of the failing firm defense, investigating its historical origins, legal underpinnings, real-world applications, and consequences for market competition and public policy.
As a notion, the failing company defense stems from a larger discussion about the difficult balance between supporting economic competition and allowing enterprises to manage financial distress. It is especially relevant when enterprises in desperate financial problems seek refuge in the arms of healthier competitors, sometimes stating that the alternative would be their unavoidable insolvency or liquidation. Following that, we’ll look at the legal underpinnings that have molded its interpretation and implementation. We’ll look at the criteria and standards used to assess the defense’s legitimacy before delving into real-world case studies where it’s been used.
II. The Failing Firm Defense
A defense for the defenseless or a measure to get merger clearance, failing firm defense has been always a controversial topic. Allowing failing enterprises to merge with well-established, powerful firms in the market is another method that claims to protect the failing firms.[1]
The failing firm defense is an antitrust legal notion that acts as an exemption to the standard restrictions intended to encourage competition and avoid monopolistic activities. This defense permits a corporation to justify an anticompetitive merger or acquisition on the grounds that one of the enterprises involved is in financial difficulties and at risk of going out of business.
When a particular firm is at the verge of collapsing, the acquiring firm argues that such proposed combination with such a firm is not likely to have an appreciable adverse effect on competition, and in the absence of the proposed combination the collapsing firm would exit the relevant market. Thus, the idea behind such contention on the behalf of acquiring firm in such cases is that such a combination is not likely to affect the competition but instead it’s post-combination performance would help maintain the competition in the relevant market and non formation of the proposed combination would instead reduce the competition in the relevant market instead of affecting the relevant market adversely. This is called failing firm / business defense, taken by the acquiring firm.
III. Failing firm Defense jurisprudence in Abroad
The defense in the USA
It was initially recognized in the United States as a result of the ruling in the International Shoe Case in 1930[2]. The failing corporation was given the burden of proof to demonstrate that “its resources were so depleted and the prospect of rehabilitation so remote that it faced the grave probability of a business failure.”[3] The failing company doctrine next received considerable attention in 1969 when the Supreme Court decided Citizen Publishing Co. v. United States.[4] , The failed company Defense can be employed to dissociate the market’s post-merger status from the merger. This is accomplished by demonstrating that if the target firm were not bought and allowed to ‘collapse’ or depart the market, the market situation would worsen to an equivalent level. This test is implemented differently in different jurisdictions; nonetheless, it is employed in practically all developed economies when examining the implications of a financially failing firm’s merger or purchase.[5] Mergers and acquisitions that “significantly lessen competition or tend to create a monopoly” are prohibited under US law. Section 7 of the Clayton Act, United States. However, a prima facie illegal merger may occur if (1) the acquiree has “resources so depleted and the prospect of rehabilitation so remote that ‘it faces the grave probability of a business failure,'” (2) there is “no other prospective purchaser,” and (3) the firm’s “prospects of reorganization” under bankruptcy laws “would have had to be dim or nonexistent.”[6] The burdon of proof for establishing a failing firm and for this defence rests with the merging parties under the US Law.[7] The United States’ Horizontal Merger Guidelines support a less stringent version of this defence, (1) requiring that the failing firm “be unable to meet its financial obligations in the near future”—as opposed to the insolvency showing required by many U.S. courts—and (2) characterizing the lack of an alternative purchase element as met when the firm proves it “made unsuccessful good-faith efforts to elicit reasonable alternative offers”.[8] According to the concept, “the potential threat to competition resulting from an acquisition is deemed preferable to the adverse impact on competition and other losses if the company goes out of business.” This is known as the “lesser of two evils.”[9]
The Defense in the EU
This defense, which was first, addressed in the case of Kali und Saz[10] (and is now mirrored in the European Union’s Merger Guidelines), Each member of the EU has its own insolvency and competition laws and authorities. This means that each of them applies different versions of the failing firm defence when assessing the competitive effects of ‘rescue’ acquisitions thus it puts out a three-point test, which is as follows:
- whether financial difficulties would force the firm out of the market,
- whether there exists a less anticompetitive alternative purchase/transaction that could rescue the firm, and
- whether the assets of the firm would exit the market in the absence of a merger.
Once these three factors are met, it is possible to assert that there would be no loss in competition, and hence the proposed combination should be permitted. A comparable methodology is used in the United States (US) under Section 11 of its Horizontal Merger Guidelines from 2010. The failing firm defence is an exception to the general rule of merger control as it would allow competition authorities to approve mergers despite their anticompetitive effects.[11] The EC was considering a merger at Saint Gobain[12] that would generate a 60% concentration in the silicon carbide sector. The EC applied the three conditions outlined in Kali und Salz but was not convinced that they had been met. A significant development in the application of the failing firm defence occurred in the BASF/Euridol/Pantochim [13]case. The first two tests were kept the same as in Kali und Salz the EC determined that the company was likely to exit the market owing to financial issues and that there was no alternative acquirer. The EC stated that the third criteria could not be used in circumstances where a duopoly did not exist. In the absence of an alternative purchaser, not operating the target’s plants would decrease the supply of their chemical products in the market, thus raising prices and harming customers.[14] “A particular application of the general causality test under Article 2 of the Merger Regulation” is how the European Commission sees this defense.[15] Therefore, “a counterfactual analysis of what would be the development of the market absent the merger could still lead to the conclusion that the deterioration of competition in the market is not a causal effect of the merger, even if it cannot be shown that each of these indicative criteria are met.”[16]
V. Analysing the concept of failure
The most recent edition of the Companies Act, 2013, Chapter 19, deals with the Revival and Rehabilitation of Sick Companies. After it got announced the provisions of the Sick Industrial Companies (Special Provisions) [SICA] Act, 1985 will be superseded by this chapter on Sick Companies.[17] Section 253 (1)33[18] of the Companies Act, 2013 (Determination of Sickness) states that the National Company Law Tribunal may declare a company sick if it is unable to pay or secure a debt amounting to fifty percent or more of its total outstanding debt within thirty days of demand notice. Firms may experience distress for a variety of causes, including severe market rivalry, rapid expansion, and unplanned catastrophes such as natural disasters, currency rate changes, economic crises, war scenarios, and so on.
To be able to depend on this defense as a corporate rescue, the path to recovery in such a scenario must demonstrate extreme impossibility and a 100% chance of failure despite having explored all alternatives. The company must appear as if it is insolvent and unable to recover without assistance. India has a good merger regulation structure in place, and adhering to the rules would pave the way for more transparent and faster trial procedures.[19]
Inability to Meet Financial Obligations
The first criterion requires the notified parties to demonstrate their financial troubles from the standpoint of a failing company. One of the primary elements considered by the Agencies when considering whether a corporation can satisfy its financial responsibilities is cash flow. The Agencies also look at whether overall liabilities surpass total assets over time.[20] A drop in sales or even negative current profitability is inadequate evidence that the company would be unable to pay its financial obligations.[21] Furthermore, the competition authorities will not consider a simple display of the company’s financial statements. The desire for high-level evidence will be the requirement, failing which the analysis will not result in the first condition being met. The parties will be required to provide their internal paperwork that was to be used prior to the specific merger, as well as their other tactics selected as a last option towards the merger consideration, such as the minutes of the respective board meetings or investor presentations.
Inability to Reorganize in Bankruptcy
To qualify for the failing firm defense under the Merger Guidelines, the firm must be unable to restructure in bankruptcy.[22] The Agencies assess whether the reduction of the firm’s debt via the bankruptcy process might remedy the company’s financial concerns when determining whether a corporation can reorganize in bankruptcy. Reorganization may be impossible if, for example, the firm is unable to cover its present and planned operational expenditures from its predicted revenues, or if capital has been depleted. The Agencies may take into account the firm’s expectations for improving its situation and if the company has a realistic plan for the future. Furthermore, the Agencies may speak with the company’s creditors to see whether they can or will work out a plan to restructure the company’s obligations.
No Reasonable Alternative Less Detrimental to Competition
The third and final requirement requires the merging warning parties to demonstrate that there are no replacement purchasers and a firm to have made a good faith effort to seek “reasonable alternative” offers from other potential purchasers , even if there are alternatives[23], Any offer to acquire the failing firm’s assets for a price more than the liquidation value of those assets—the highest valued use outside the relevant market or comparable offer to purchase the failing firm’s stock—will be considered an acceptable alternative.[24] The result would have anti-competitive implications in the pertinent marketplaces. Although an alternate purchaser’s operations may not necessarily be in the same market as the existing firm, if such a purchaser is a neighboring party of such firm and expresses interest in the purchase and is familiar with the firm’s operations, such purchaser is deemed to be a credible alternate purchaser. The stake in market share will be the usual criterion of assessment for the second part of the statement. Higher market share than the capital purchaser merely means that there is no risk of anti-competitive behavior.[25]
V. Analyzing IBC in support of Failing Firm Defense
Nearly a week after the LokSabha enacted the new bankruptcy code in India, the RajyaSabha approved it on May 12, 2016, paving the way for the legislation that expeditiously resolves bankruptcies.45 inThere was no one comprehensive law addressing insolvency and bankruptcy in India prior to this one. While individual cases were handled under the Presidency Towns Insolvency Act, 1909, and Provincial Insolvency Act, 1920, the high courts handled the liquidation of businesses.[26]The recently established Insolvency and Bankruptcy Code, 2016 is thought to provide a unified approach to expeditiously address insolvent firms’ problems while simultaneously advancing the interests of all parties involved.
The IBC works to rescue the life of a firm in trouble. IBC is one of the most crucial methods there that was established to address the problem of stressed assets. The Insolvency and Bankruptcy Code, 2016, (IBC) has opened up new avenues for merger and acquisition (M&A) transactions in India for corporations seeking inorganic expansion. In normal times, the Code enables market forces to pursue twin complementary remedies in respect of failing firms: (a) rescue a viable firm, and (b) liquidate an unviable one. It searches for a white knight, who rescues a failing firm.[27]
In the case of Y. Shivram Prasad v S. Dhanapal & Ors[28]., the Appellate Authority ordered: “…during the liquidation process, step required to be taken for its revival and continuance of the ‘Corporate Debtor’ by protecting the ‘Corporate Debtor’ from its management and from a death by liquidation By compromise or arrangement with the creditors, or class of creditors or members or class of members in terms of Section 230 of the Companies Act, 2013. On failure, the liquidator is required to take step to sell the business of the ‘Corporate Debtor’ as going concern in its totality along with the employees. The last stage will be death of the ‘Corporate Debtor’ by liquidation, which should be avoided.”
The Hon’ble Supreme Court in the matter of Arcelor Mittal India Private Limited Vs. Satish Kumar Gupta & Ors [29]observed that:
“We must not forget that the corporate debtor consists of several employees and workmen whose daily bread is dependent on the outcome of the corporate insolvency resolution process. If there is a resolution applicant who can continue to run the corporate debtor as a going concern, every effort must be made to try and see that this is made possible.”
The expanded involvement of creditors is another significant issue to take into account following the enactment of the revised Insolvency and Bankruptcy Code, 2016. A significant departure from the former situation, when some obligations owing to the government and statutory dues took precedence over obligations owed to secured creditors, has occurred with the code’s modifications to the order of priority of creditors throughout the liquidation process. Reordering creditors’ priorities with respect to the distribution of the insolvent body’s assets is probably going to serve as a significant motivator for both creditors and investors since it significantly raises the chances of a successful debt recovery. [30] Because creditors are becoming more significant and vital parties involved in the failure of a company, the Commission will take their interests into account when a merger involves a potential failing enterprise.
The relationship between insolvency codes and the failing firm defense is indirect and stems from their intersection in the context of corporate mergers and acquisitions, especially in antitrust and competition law. The insolvency code can serve as a source of evidence and context when a company is using the failing firm defense to justify a merger or acquisition. It helps antitrust authorities and courts assess the validity of the defense by considering the company’s financial condition, the availability of alternative buyers, and the potential impact on competition. While the insolvency code and the failing firm defense operate in different legal domains, they intersect when a failing firm’s financial distress is used as a defense in merger control cases, where antitrust and competition law meet insolvency law.
VI. Failing Firm Defense and Competition Law
The most important aim for every business is to expand. While growth is a good attribute that leads to a variety of efficiencies, it may also result in a rise in a firm’s market power, allowing it to engage in anticompetitive acts. From limiting monopolies to encouraging competition, India has made significant strides toward modernizing the Indian competition law framework.
The reason for including the ‘possibility of a failing firm’ as a consideration may be seen in the report of the S.V.S Raghavan Committee on competition law (Raghavan Committee Report). According to the analysis, combining or taking over the assets of a failed business would result in no social welfare loss and thus will work efficiently. The framework for a possible Failing firm defence is not as prudent in India but Section 20(4) of the Competition act, 2002 specifies the elements to be considered in evaluating whether a combination would have the effect of or is likely to have an unfavorable impact on competition in the relevant market. Subclause (k) of the aforementioned provision states that the possibility of a ‘failed’ firm is one such reason. In July 2019, the Competition Law Review Committee submitted its report to the Ministry of Corporate Affairs (the Report), recommending a ‘Green Channel’ for merger approvals by the Competition Commission of India.[31] According to the Report, Insolvency Resolution Plans (IRP) should automatically qualify for the Green Channel. This means that even if the IRPs exceed the levels specified in the CCI’s Combination Regulations created under the Competition Act, 2002, they will not be scrutinized by the CCI.[32] According to the Report, the goal of this suggestion was to lower the transaction costs associated with mergers that are unlikely to have an Appreciable Adverse Effect on Competition (AAEC). India has a suspensory merger control regime because merger transactions are effectively suspended until CCI approval or the end of the standstill period[33]The failing business defense, which is a series of criteria used to establish whether an otherwise anti-competitive merger should be authorized owing to the imminent failure of a firm in the absence of the merger, serves as the theoretical basis for green-channelling IRPs. Green-channeling IRPs have been justified using this defense. The argument in favor of this is that because the IRP has gone through the insolvency resolution process, it may be presumed that the defense criteria have been satisfied.[34]
The notion of ‘failing firm defense’ involves three requirements that the Competition Commission, like the CCI, must be convinced of:
a) Failure of the business would result in its withdrawal from the relevant industry, reducing competition;
b) Other than the proposed merger/acquisition amongst rivals, there is no other effective alternative that would result in increased competition in the industry.
c) The failure of the failing business would have a negative impact on the industry’s competition and would be damaging to consumers.
One of the issues in the Blokker/Toys R Us and Saint Gobain Acquisitions in the EU was that the acquisition was already a major player in the market. As a result of increased market concentration, competition was projected to decrease following the merger. The second element of the failing firm argument was not fulfilled in Blokker/Toys R Us and Saint Gobain, and it was determined that less anti-competitive (smaller) acquirers would be more consistent with the EU’s merger control framework. Without a doubt, competitive examination of resolution plans can impede creditors’ ability to negotiate the best deal for themselves. Combinations with larger enterprises that have horizontal overlaps, on the other hand, are more likely to develop a dominating position in the market.The CCI has not entirely relied on the ‘failing firm defense’ to accept a specific merger or acquisition and in order to expedite merger and acquisition approvals, the CCI has implemented “green channel” submissions. The Competition Law Committee recommended this green channel permission for IBC-related mergers and acquisitions in its 2019 Report. As things stand, faltering corporations seeking survival through mergers and acquisitions may be able to gain presumed permission from the CCI if the entities involved are not engaged in identical businesses. As a result, if a company is unable to reorganize itself, is declared bankrupt, or a liquidation order is issued against the company, it may become a significant element for the CCI to evaluate the failing firm defense. In fact, the firm’s business does not have to be a total failure at the time of informing the CCI; rather, the mere chance that it would fail in the future is enough to empower the parties to claim the failing firm.
VII. A way forward
The defense was not effectively employed until March 2022, when it was a crucial component of the CMA’s unconditional Phase 1 approval of Freshways Group’s purchase of the Medina group. In this case, the parties successfully demonstrated that: (i) the troubled firm, Medina, would have exited the market soon and had exhausted all other options to remain viable absent the merger; and (ii) there were few ‘alternative purchasers’ of Medina who would run the business as competitively as Freshways.
As government assistance is withdrawn, companies are expected to repay portions of coronavirus assistance, and as we enter a period of high inflation and anticipated recession, many of them will face increased financial strain. They may search for help while they fight to survive.[35]
In other circumstances, the firm may have already failed, and the corporation may be trying to acquire the assets of an insolvent business rather than merging in the classic sense. In this circumstance, (i) does merger control still apply; and (ii) may the failing company defense be invoked?
Enforcing anticompetitive remedies on existing entities can be costly in insolvency law. The Competition Commission (CCI) can divide dominant entities to prevent abuse. The approval process for an Insolvency Resolution Plan (IRP) is sensitive, involving creditors forgoing loans, extending additional credit, or postponing due dates. IRPs are crucial for financially distressed companies as they indicate the scale of their operations. In a pre-merger notification regime, an IRP cannot be implemented until cleared by the CCI. However, if merger control occurs after the combination is implemented, creditors cannot renegotiate the plan. Unwinding mergers, including IRPs, increases legal uncertainty. Reduced predictability can reduce creditors’ willingness to invest in restructuring plans. The Combination Regulation Amendment, Regulation 5A, makes a merger non-compliant with green-channel requirements void ab-initio, increasing risks associated with investing in distressed assets. In the UK, all mergers are voluntary, while in Indian law, only some transactions are subject to it.
Regarding the failing firm defense, it is obvious that the first criteria has already been met because the firm has run out of money. To be valid, the defence would have to pass the third test (cost-versus-benefit) and the second test (alternative transaction).
VIII. Conclusion
The intersection of competition law and insolvency law, especially in the context of the failing firm defense, has become increasingly relevant as financially distressed or insolvent companies engage in merger and acquisition activities. This paper has delved into the complex dynamics of “Merger Control in Insolvency Scenarios,” providing an in-depth analysis of the failing firm defense, its legal and economic implications, and its role in reconciling the objectives of the Competition Act, 2002, and the Insolvency and Bankruptcy Code, 2016.
The failing firm defense, as an antitrust concept, provides a mechanism for financially distressed companies to justify anticompetitive mergers or acquisitions by arguing that the failure of the target firm is imminent and that the harm to competition resulting from the merger is outweighed by the potential harm of the firm’s collapse. This defense reflects a delicate balance between preventing anticompetitive behavior and facilitating the restructuring of financially distressed businesses.
This analysis has explored the failing firm defense within a global context, discussing its historical evolution, criteria for application, and its use in various jurisdictions. Notably, the failing firm defense has been recognized and applied in countries like the United States and the European Union, each with its unique set of criteria and tests to evaluate its legitimacy.
In the Indian context, the failing firm defense holds significant potential, especially within the framework of the Insolvency and Bankruptcy Code (IBC). The IBC serves as a crucial tool for the revival and rehabilitation of financially distressed companies. The failing firm defense can play a pivotal role in the acquisition and merger decisions of insolvent companies, potentially enabling their rescue.
The analysis also addressed the need for transparency, predictability, and guidelines in assessing failing firm claims, emphasizing the importance of a case-specific approach. While recognizing the potential misuse of the failing firm defense to bypass competition scrutiny, it is crucial to strike a balance between facilitating the rescue of financially distressed firms and preventing opportunistic acquisitions.
In conclusion, the failing firm defense is a nuanced and multifaceted concept that lies at the intersection of competition law and insolvency proceedings. It highlights the complex challenge of preserving market competition while addressing financial distress. The evolving legal and economic landscape, both domestically and internationally, demands a thorough understanding of the failing firm defense to navigate the intricate balance between safeguarding competition and facilitating the rescue of financially distressed businesses. As economies evolve and corporate landscapes transform, the failing firm defense will continue to be a critical component of antitrust regulation, insolvency proceedings, and the broader field of mergers and acquisitions. Its proper application and careful consideration of its implications are essential to ensure fair and effective competition while addressing the challenges posed by financially distressed firms.
[1] AgnieszkaZwirska, Failing firm defence 6 (2003) (unpublished Master thesis, Lund University) (on file with Lund University).
[2] International Shoe Co. v. Federal Trade Commission, 1930 SCC OnLine US SC 9 : 74 L Ed 431 : 280 US 291 (1930) wherein the International Shoe Co. acquired the capital stock of McElwain Co., which was in such distressed financial conditions that the only option available to it was of liquidation. The court held that the probability of a business failure with resulting loss to its shareholders, the purchase of stock by a competitor, is not with a purpose to lessen competition, but to facilitate the accumulated business of the purchaser and with the effect of mitigating seriously injurious consequences otherwise probable, is not in contemplation of law prejudicial to the public and does not substantially lessen competition or restraint commerce within the intent of the Clayton Act.
[3] International Shoe Co. v. FTC, 280 U.S. 291 (1930)
[4] 394 U.S. 131 (1969).
[5] KOKKORIS & OLIVARES-CAMINAL, supra note 18, at 106; See OECD Roundtable, supra note 23, at 11-12
[6] Citizen Pub. Co. v. United States, 394 U.S. 131, 136-38 (1940)
[7] (Citizen, 394 U.S. 138-39)
[8] (U.S. Dep’t of Justice & U.S. Fed. Trade Comm’n, Horizontal Merger Guidelines § 11 (2010)).
[9] United States v. Gen. Dynamics Corp., 415 U.S. 486, 507 (1974)
[10] Case No. IV/M.308, Kali+Salz/MdK/Treuhan (1993), O.J. (L 186) 38. The case was appealed, and the EC’s approach to the failing firm defense was upheld by the European Court of Justice in Case 68/94 French Republic v. Commission of the European Communities, 1998, E.C.R. I-1375.
[11] Organisation for Economic Corporation and Development (OECD), Policy Roundtables: The failing firm defense, at 11-12 (2009) https://www.oecd.org/competition/mergers/45810821.pdf [Henceforth OECD Roundtable].
[12] Case No. IV/M.744, Saint Gobain/Wacker-Chemie/NOM, 1997 O.J.(L 247) 1.
[13] Case No. COMP/M.2314, BASF/Euridol/Pantochim, https://ec.europa.eu/competition/mergers/cases/decisions/m2314_en.pdf BASF had purchased Euridol and Pantochim in this case. Euridol and Pantochim were SISAS group businesses that manufactured chemical products such as phthalic anhydride, gammabutyrolactone (GBL), and tetrahydrofuran. BASF was active in both distribution and manufacturing production of chemical products, nutrition and health products, and gas and oil.
[14] Id.
[15] Id., par. 15.
[16] Case COMP/M.4381– JCI/ Fiamm
[17] SICA is repealed because SICA exclusively applies to industrial firms, whereas the 2013 Act includes the revival and rehabilitation of all companies, regardless of industry, under its purview and thus was repealed through Sick Industrial Companies (Special Provisions) Repeal Act 2003- Not made effective
[18] Section 253 (1) Where, on a demand by a company’s secured creditors representing fifty percent or more of its outstanding amount of debt, the company fails to pay the debt within thirty days of the service of the notice of demand, or to secure or compound it to the reasonable satisfaction of the creditors, any secured creditor may file an application to the Tribunal in the prescribed manner, along with the relevant evidence for such default, non-repayability, or failure to secure or compound it.
[19] https://www.mondaq.com/india/corporate-and-company-law/929122/a-highway-heist-and-a-scot-free-let-go-the-failing-firm-defence-in-mergers
[20] California v. Sutter Health Sys., 130 F. Supp. 2d 1109, 1134-35 (N.D. Cal. 2001).
[21] Kevin J. Arquit, Director, Bureau of Competition, Federal Trade Commission, Before the American Bar Association, The Failing Firm Defense and Related Issues, Apr. 12, 1991 (“Arquit Remarks”), p. 9.
[22] Chapter 11 of the U.S. Bankruptcy Code, 11 U.S.C. § § 1101-1116 and under IBC, 2016(INDIA)
[23] United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)
[24] Merger Guidelines § 5.1 n.39. (US)
[25] Id.
[26] Other laws which deal with the issue include SICA (Sick Industrial Companies Act), 1985; Recovery of Debt Due to Banks and Financial Institutions Act, 1993, SARFAESI (Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest) Act, 2002 and Companies Act, 2013, http://indianexpress.com/article/india/india-news-india/insolvency-and-bankruptcy-code-a-legislation-topromote-investments-develop-credit-markets/#sthash.uZ6I9U3e.dpuf.
[27] https://www.manupatrafast.in/Pers/Personalized.aspx
[28] Y. Shivram Prasad v S. Dhanapal & Company Appeal (AT) (Insolvency) No. 224 of 2018
[29] Arcelor Mittal India Private Limited Vs. Satish Kumar Gupta CIVIL APPEAL NOs.9402-9405 OF 2018
[30] Jyoti Singh & Vishnu Shriram, India: Insolvency and Bankruptcy Code 2016: Well worth the Wait, http://www.mondaq.com/india/x/462788/Insolvency+Bankruptcy/Insolvency+And+Bankruptcy+Code+20 15+Well+Worth+The+Wait (last updated Feb. 2, 2016).
[31] MINISTRY OF CORPORATE AFFAIRS, REPORT OF THE COMPETITION LAW REVIEW COMMITTEE (July 2019), 127, http://www.mca.gov.in/Ministry/pdf/ReportCLRC_14082019.pdf.
[32] Competition Act, No. 12, Acts of Parliament, 2003 §5, https://www.cci.gov.in/sites/default/files/cci_pdf/competitionact2012.pdf
[33] Aditi Gopalkrishnan, Gaurav Bansal, Rahul Shukla, & Karan Sood, India: Merger Control, AZB & PARTNERS (JAN. 07, 2020). HTTPS://WWW.AZBPARTNERS.COM/BANK/INDIA-MERGER-CONTROL-4TH-EDITION/
[34] Divyansh Dev, Competition Act and Insolvency & Bankruptcy Code: Applying the Failing Firm Defence for Green Channel Approval for cases Bar & Bench (Feb. 23, 2020), https://www.barandbench.com/columns/competition-act-and-insolvency-bankruptcy-code-applying-the-failingfirm-defence-for-green-channel-approval-of-cases.
[35] https://www.grantthornton.co.uk/insights/the-failing-firm-defence-is-it-now-a-realistic-option/
