Addressing the Unaddressed: An Analysis of the Confidentiality Void under Section 235 of the IBC in India’s Cross-Border Insolvency Regime

India’s Insolvency and Bankruptcy Code, 2016, has not yet incorporated the UNCITRAL Model Law on Cross-Border Insolvency, 1997. Meanwhile, Sections 234 and 235 are stopgap measures to allow international cooperation. Section 234 allows for reciprocal arrangements with foreign states to authorise Indian courts to issue letters of request for cross-border assistance with assets or evidence. No such arrangements have been established as yet. More importantly, Section 235, to make such requests operational, is devoid of crucial procedural protections, particularly for sensitive commercial and personal information being transferred transnationally. This is not simply a lacuna in practice; it is one of principle. Indian law has long recognised confidentiality as an equitable obligation. Courts in cases like John Richard Brady and Urmi Juvekar have protected technical and creative information even in the absence of express statutory backing. Globally, other jurisdictions have enacted such protection. For example, the UK in In Re Farfetch Ltd., limited cross-border disclosure by way of confidentiality undertakings. The U.S., under §107(b) of the Bankruptcy Code, permits protective orders to prevent commercial harm. To bridge this gap, this paper proposes the enactment of a “Protective Protocol” pursuant to Section 235. It encompasses: first, clear statutory mandate for confidentiality orders; second, stepped disclosure standards (“good cause” and “compelling reasons”); third, mandatory confidentiality provisions with automatic sealing; fourth, procedural rules for sealing dispositive documents by affidavit and judicial balancing tests; and lastly, provisions to quash third-party subpoenas involving protected information.