Statutory Exclusivity vs. Party Autonomy: Reconciling RERA’s Non-Arbitrability Doctrine with the Insolvency and Bankruptcy Code in Developer Defaults

The doctrinal confrontation between RERA’s (Real Estate (Regulation and Development) Act of 2016) non-arbitrability mandate and contractual party autonomy assumes foundational importance when developer defaults activate the Insolvency and Bankruptcy Code, placing specialised consumer safeguards against collective, time-bound resolution in a sector marked by chronic delays and fragile finances. Despite Pioneer Urban Land and Infrastructure Ltd. Vs. Union of India, (2019), recognising allottees as financial creditors and holding that RERA and the IBC coexist with the latter prevailing in conflict, and the four-fold non-arbitrability test in Vidya Drolia Vs. Durga Trading Corporation, (2021), scholarship has largely examined the regimes in isolation. The residual status of arbitration clauses under the Section 14 moratorium, survival of pending RERA proceedings, and post-resolution enforceability of awards remain underexplored. This study undertakes a systematic doctrinal reconstruction of the statutory texts, Supreme Court and NCLT/NCLAT decisions—including the Bombay High Court’s affirmation of RERA’s erga omnes character in Rashmi Realty Builders Pvt. Ltd. Vs. Rahul Rajendrakumar Pagariya—and comparative common-law approaches, aiming to delineate the outer limits of party autonomy and construct a coherent reconciliation principle preserving RERA’s protective core without fragmenting the IBC’s collective mechanism. Analysis shows RERA exclusivity ordinarily displaces arbitration pre-insolvency, yet CIRP commencement subordinates bilateral arbitral rights; residual uncertainty persists regarding pre-existing awards and residual RERA jurisdiction after plan approval. These insights compel refined judicial or legislative guidance to eliminate forum-shopping, restore predictability, and reinforce institutional coherence amid developer distress.