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2019 (4) TMI 462 - HC - Indian Laws


Issues Involved:
1. Interpretation of Section 2(1)(f)(i) of the Arbitration and Conciliation Act, 1996.
2. Determination of whether the arbitration is an international commercial arbitration.
3. Jurisdiction to appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996.

Issue-Wise Detailed Analysis:

1. Interpretation of Section 2(1)(f)(i) of the Arbitration and Conciliation Act, 1996:
The primary issue revolves around the interpretation of the term "habitually resident in, any country other than India" as stated in Section 2(1)(f)(i) of the Arbitration and Conciliation Act, 1996. The court emphasized that the expressions "national" and "habitual resident" are used disjunctively, implying that satisfying either condition qualifies the arbitration as an international commercial arbitration. The court clarified that even if one of the parties is habitually resident in a country other than India but is a national of India, the arbitration would still be considered international commercial arbitration.

2. Determination of whether the arbitration is an international commercial arbitration:
The court examined whether the applicant, who is a Non-Resident Indian residing and working in Dubai, UAE, qualifies the arbitration as an international commercial arbitration. The applicant argued that he is domiciled in India, holding an Indian passport, and frequently visits India, suggesting that his habitual residence should be considered India. However, the court relied on various legal definitions and judgments to conclude that habitual residence implies a regular physical presence with a degree of continuity, not necessarily requiring the intent to establish domicile. The court found that the applicant's residence in Dubai, his receipt of remuneration in USD in a Dubai bank, and his official residential status in Dubai collectively indicate that he habitually resides in Dubai.

3. Jurisdiction to appoint an arbitrator under Section 11 of the Arbitration and Conciliation Act, 1996:
Given the determination that the arbitration is an international commercial arbitration, the court addressed the jurisdiction issue under Section 11(12)(a) of the Act, which states that in cases of international commercial arbitration, applications under Section 11 should be made to the Hon’ble Supreme Court of India or the Chief Justice of India or their designate. As the applicant is habitually resident in Dubai, the court concluded that it lacks jurisdiction to entertain the applications for the appointment of an arbitrator.

Conclusion:
The court dismissed the applications under Section 11 of the Arbitration and Conciliation Act, 1996, concluding that the proposed arbitral proceedings constitute an international commercial arbitration due to the applicant's habitual residence in Dubai. Consequently, the applications should be made to the Hon’ble Supreme Court of India, as per Section 11(12)(a) of the Act.

 

 

 

 

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