WHEN DOES INSOLVENCY LAW NUDGE? A MECHANISM-BASED ACCOUNT OF BEHAVIOURAL DESIGN IN INDIA'S INSOLVENCY AND BANKRUPTCY CODE
Ayush Verma, 5th-Year B.A. LL.B. Student at National Law Institute University, Bhopal (India)
Atul Wasnik, 5th-Year B.A. LL.B. Student at National Law Institute University, Bhopal (India)
Samyak Raj Nema, 5th-Year B.A. LL.B. Student at National Law Institute University, Bhopal (India)
Scholarship on India’s Insolvency and Bankruptcy Code, 2016 (‘IBC’ or ‘the Code’) routinely describes the statute as an exercise in behavioural design, arguing that its architecture ‘nudges’ debtors and creditors toward cooperative, value-preserving conduct. The claim is rarely tested against what nudge theory actually requires. Because almost every legal rule is meant to change conduct, behavioural influence alone cannot separate a genuine nudge, which works by reshaping choice architecture while leaving the underlying menu of options intact, from an ordinary command, an economic incentive, or a reallocation of institutional authority. This article argues that the failure to draw this distinction has produced an inaccurate picture of how the Code operates and an unreliable method for judging whether its behavioural claims hold up. It develops a two-stage framework, separating the classification of a mechanism from the validation of its effects, and applies that framework to four IBC mechanisms selected because each tests a different form of legal influence: creditor control through the Committee of Creditors, the procedural timelines governing the Corporate Insolvency Resolution Process, the settlement route under section 12A, and the Pre-Packaged Insolvency Resolution Process (PPIRP). The analysis also asks whether a framework built around individual decision-makers can be applied without modification to the institutional actors, banks, committees, insolvency professionals, and tribunals, who actually operate the Code. It finds that most of the Code’s central mechanisms are better explained as institutional redesign or procedural constraint than as choice architecture, that section 12A historically operated differently before and after constitution of the Committee of Creditors, but its substitution in 2026 removed the pre-CoC withdrawal route and converted the current mechanism into a CoC-gated coordination rule, and that PPIRP is best understood as a behaviourally informed institutional mechanism with nudge-like features rather than a pure nudge. The available evidence, drawn from Insolvency and Bankruptcy Board of India data and recent judicial and legislative developments, supports these classifications more confidently than it supports any claim about demonstrated behavioural effect. The article’s contribution is this framework itself, offered as a tool for evaluating behavioural claims in insolvency law with greater precision than the existing literature allows.
| 📄 Type | 🔍 Information |
|---|---|
| Research Paper | LawFoyer International Journal of Doctrinal Legal Research (LIJDLR), Volume 4, Issue 3, Page 2130–2163. |
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