Hybrid Pathways in Insolvency: Lessons from SIAC’s RIA Protocol and India’s Mediation Act, 2023

The Singapore International Arbitration Centre (SIAC) launched its Restructuring and Insolvency Arbitration (RIA) Protocol on 26 August 2025, the first-of-its-kind institutional framework designed specifically for disputes arising in insolvency, restructuring and adjustment of debt.

The RIA Protocol read with the SIAC Guidance Note is notable not only for its strict timelines and procedural innovations, but also because it promotes the use of mediation as a central step within the arbitral process. This makes it a hybrid tool – an arbitral mechanism with built-in settlement opportunities. For India, where insolvency law has rapidly developed under the Insolvency and Bankruptcy Code, 2016 (IBC), and where the Mediation Act, 2023 has introduced a statutory regime for mediation, the RIA Protocol offers timely lessons. It invites reflection on how India might better integrate arbitration and mediation into the resolution of non-core insolvency disputes (discussed below).

What the RIA Protocol Offers

The RIA Protocol adapts SIAC’s arbitration framework to insolvency contexts. It imposes expedited timelines: seven days for responses, fourteen days for tribunal constitution, and six months for final awards [RIA Protocol, paras 5, 7 and 24]. Draft awards undergo the registrar’s scrutiny within thirty days, maintaining procedural discipline [SIAC Guidance Note, para 26].

Importantly, the Protocol provides a specific cue to tribunals and parties to consider mediation to resolve their disputes — a three-week pause during which parties are encouraged to settle, with any settlement convertible into a consent award [RIA Protocol, paras 16 and 19]. The Protocol also allows disputes to be referred to arbitration in anticipation of insolvency, during restructuring, or upon recommendation by courts, or insolvency officeholders, in any jurisdiction [RIA Protocol, para 1].  Therefore, if parties from different jurisdictions are involved, and a foreign court or insolvency officeholder refers the matter to arbitration, the Protocol may govern the proceedings. Because awards rendered under the Protocol are enforceable under the New York Convention, they provide a neutral and internationally recognisable mechanism for resolving restructuring disputes that straddle multiple jurisdictions.

Finally, it contains an explicit waiver of objections that challenge arbitrability of insolvency related disputes, ensuring that jurisdictional challenges do not derail proceedings [RIA Protocol, para 30]; while also guiding that the waiver should not be read as extending to disputes over the existence or scope of the arbitration agreement [SIAC Guidance Note, para 18].

The Protocol thus represents soft-law innovation: without legislative amendment, SIAC has created an institutional mechanism that balances insolvency’s collective character (unlike ordinary contractual disputes which are in personam, insolvency is in rem)  with arbitration’s flexibility.

 Position in the Indian Context

In India, arbitration and insolvency have historically been viewed as doctrinally opposed. The Supreme Court, in Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. and Vidya Drolia v. Durga Trading Corp., confirmed that insolvency proceedings are matters of public policy and are thus, non-arbitrable once admitted under the IBC. The collective nature of insolvency, supervised by the adjudicating authority (AA) (being the National Company Law Tribunal (NCLT), Debt Recovery Tribunal and their respective appellate fora) and the committee of creditors, justifies this position.

However, not all insolvency disputes demand collective adjudication. Here, the distinction between core and non-core insolvency disputes is instructive. Core insolvency matters, such as, avoidance of impugnable transactions during a look-back period, approval of the resolution plan, withdrawal of insolvency, etc., which directly implicate the collective nature of insolvency proceedings should remain within the exclusive jurisdiction of the AA.

By contrast, there could be certain non-core disputes that can be resolved by arbitration where a pre-existing arbitration agreement exists, or by mediation if statutorily referred by the AA. Such non-core disputes could be bilateral or ancillary disputes that arise within insolvency but do not affect collective creditor decision-making. These disputes can often be resolved through alternate dispute resolution (ADR) mechanism, which could provide faster and more commercially sensitive outcomes – unlike proceedings before the AA, which are public, ADR is private and could allow parties to protect negotiations from market or reputational fall-out in a bilateral dispute.

For instance, in India, pre-admission disputes between the creditor and the corporate debtor – such as whether a debt is due and payable – can currently only be litigated before the AA as per the IBC. Similarly, post-admission into insolvency, while the moratorium under Section 14 of the IBC limits parallel proceedings against the corporate debtor before any forum other than AA, non-core disputes – such as, inter-creditor disagreements, disputes over distribution waterfalls, conflicts between two companies undergoing insolvency, or implementation disputes under resolution plans – remain to be litigated before the AA. If empowered, however, the AAs could direct such non-core disputes to ADR mechanisms.

The Mediation Act, 2023: An Untapped Tool

Recent policy developments suggest a gradual uptake of mediation in insolvency disputes in India. An Insolvency & Bankruptcy Board of India (IBBI) Expert Committee in 2024 recommended pre-institutional (voluntary) mediation by operational creditors (OCs) before filing petitions under Section 9 of the IBC for initiation of insolvency against the corporate debtor for its default of an operational debt due and payable.

This recommendation flows from the insight that many Section 9 petitions fail at admission stage due to a pre-existing dispute (which renders such Section 9 petition as non-maintainable as clarified by the Supreme Court in Mobilox Innovations Private Limited v. Kirusa Software Private Limited), or are settled only after formal filing.

Mediation could surface such disputes earlier, reduce unnecessary filing of petitions before AA, and align with IBC’s twin goal of time bound resolution and value maximization. This was echoed in a discussion paper by IBBI, proposing amendments to the regulations under the IBC, allowing OCs to undergo mediation with corporate debtors under the Mediation Act before admission. To date, no legislative or regulatory changes have been implemented following the IBBI’s discussion paper. These proposals, if implemented, could reduce the large volume of pre-admission settlements in Section 9 cases, which already account for nearly 80% of proceedings initiated under Section 9.

Until recently, India lacked a comprehensive statutory framework for mediation. The Mediation Act (discussed previously on this blog here and here) altered this landscape by institutionalising mediation, providing for pre-litigation mediation, setting up mediation councils and granting enforceability to mediated settlement agreements. The statute offers a strong foundation for integrating mediation into insolvency – Section 6 read with the First Schedule of the Mediation Act does not classify insolvency related disputes as not fit for mediation.

Unlike arbitration, which requires an agreement or the consent of all parties to arbitrate (as clarified by the Supreme Court in Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. (P) Ltd.), mediation can be directed by statute or courts, making it particularly suitable for non-core insolvency disputes such as inter-creditor conflicts that arise under the IBC. Having said this, while the Mediation Act has come into force, its institutional framework is still evolving. The Mediation Council of India, envisioned under the Act to regulate mediators and accrediting institutions, is yet to be established. This creates a transitional gap: although the statute provides a legal basis for mediation, its effective operationalisation will depend on the creation of robust institutional infrastructure.

Another underexplored avenue is Section 442 of the Companies Act, 2013, which empowers the Central Government and the NCLT (and its appellate forum) to refer disputes to the Mediation and Conciliation Panel under the Companies (Mediation and Conciliation) Rules, 2016 either upon the request of a party or suo moto. While designed for company law matters such as shareholder disputes or oppression and mismanagement disputes, this provision suggests that the legislature has already contemplated mediation in corporate disputes.

At present, however, Section 442 has not been invoked in insolvency proceedings as it was originally designed for company law disputes and because IBC has created a distinct, self-contained framework for insolvency resolution that does not contemplate referral to mediation. Yet, given that NCLT functions as the AA under the IBC and Companies Act, a pragmatic interim reform could be to explicitly permit use of Mediation and Conciliation Panels for non-core insolvency disputes until the Mediation Council under the Mediation Act becomes functional. To this end, the IBC could be amended to expressly provide an enabling framework such as Section 442 of the Companies Act, 2013, thereby authorising AAs to refer non-core insolvency disputes to Mediation and Conciliation Panels and/ or the Mediation Council, as the case may be. This would create a coherent mediation framework across corporate and insolvency law, avoiding duplication and leveraging existing institutional structures.

Lastly, the RIA Protocol’s built-in mediation window mirrors Singapore’s arb-med-arb model, specifically the SIAC-SIMC Arb-Med-Arb Protocol, where disputes are first mediated if the parties so wish to and, if unsuccessful, are referred back to arbitration. India could adopt a similar approach. The AAs could be given discretion to refer parties to mediation under the Mediation Act, particularly for disputes that lack contractual arbitration clauses. This would reduce the caseload of insolvency tribunals while promoting negotiated outcomes consistent with commercial realities.

Hard Law versus Soft Law in India

The RIA Protocol demonstrates how soft law can expand procedural options without statutory amendment. For India, however, hard-law changes may be necessary in IBC, which has been interpreted by the Supreme Court in Ghanashyam Mishra and Sons Pvt. Ltd. v. Edelweiss Asset Reconstruction Company Ltd. as a complete code on insolvency, leaving little scope for judicially crafted procedures absent statutory basis. The Arbitration and Conciliation Act, 1996 permits party autonomy in designing arbitral rules, but referring insolvency-related disputes would require amending the IBC to confer the AAs with discretion to channel non-core disputes to arbitration or mediation. At the same time, the Mediation Act already provides a statutory base. By contrast, arbitration remains dependent on party agreements, limiting its reach in statutory insolvency disputes. Section 442 of the Companies Act further underscores that India already possesses a mediation framework within corporate law, but this needs to be systematically aligned with the IBC and Mediation Act to create a coherent enabling statutory framework.

A calibrated reform could therefore be two-pronged: (i) statutory empowerment of the AAs to direct mediation under the Mediation Act or Section 442 of the Companies Act for disputes without arbitration clauses; and (ii) amendment of the IBC to permit arbitration of contractual, non-core insolvency disputes where arbitration clauses exist. Together, these reforms would replicate the hybrid approach of the RIA Protocol.

Comparative Perspectives

Other jurisdictions highlight similar calibrated approaches. In Brazil, the 2020 reform to its Bankruptcy Law introduced mandatory encouragement for conciliation and mediation, permitting debtor-creditor reconciliation prior to filing for judicial reorganization, including a 60-day stay of execution to facilitate mediated negotiation (discussed previously on this blog here).

The UK distinguishes between disputes that have in rem effect (non-arbitrable) and private disputes that may be arbitrated, as in Fulham Football Club v. Richards [2011] EWCA Civ 855. The US applies a “core vs. non-core” test wherein non-core disputes are arbitrable (Hays & Co. v. Merrill Lynch, 885 F.2d 1149 (3d Cir. 1989)), while core disputes remain within the exclusive jurisdiction of bankruptcy courts (In re National Gypsum, 118 F.3d 1056 (5th Cir. 1997)).

Singapore employs the SIAC-SIMC Arb-Med-Arb Protocol, where disputes are first mediated if the parties so wish to and, if unsuccessful, are referred back to arbitration; also embedded in its Insolvency, Restructuring and Dissolution Act, 2018. The EU, through its Preventive Restructuring Directive (2019/1023), promotes mediation and negotiated restructuring. Hong Kong, although court-centric, allows arbitration of non-core disputes even during winding-up, supported by its 2021 cooperation mechanism with Mainland China.

Seen in this light, India’s existing but underutilised Section 442 framework can be compared to Europe’s use of preventive restructuring directives or Singapore’s SIAC-SIMC Arb-Med-Arb Protocol: they all demonstrate that it is possible to incorporate consensual processes into statutory insolvency regimes by building on existing institutional tools. The difference is that India’s tools remain fragmented between the Companies Act, IBC and Mediation Act. Coherence, rather than invention, is the reform imperative.

Conclusion

The RIA Protocol is a significant institutional innovation: it embeds expedited procedures, mediation and adaptability into insolvency dispute resolution. For India, the lessons are clear. The Mediation Act provides a hard-law foundation for integrating mediation into insolvency contexts. Section 442 of the Companies Act already equips the NCLT (and its appellate forum) with mediation referral powers, which is currently underutilised. The IBC, meanwhile, could be amended to allow arbitration of non-core disputes where arbitration agreements exist. Together, these reforms would create a hybrid framework where, at least in theory, arbitration ensures speed and finality, and mediation facilitates commercial compromise.

By embracing such calibrated hybridity, India could alleviate the burden on its insolvency tribunals, reduce delays, and align with global best practices. Ultimately, insolvency need not be a zero-sum contest between creditors; instead, by properly integrating mediation and arbitration, it can become a more collaborative, efficient and commercially sustainable process.