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Case Comment on: TDM Infrastructure Private Limited Versus UE Development India Private Limited Arbitration Application No. 2 of 2008 Name: Suryakiran G Registration No.: 1316259 Class: 8 BALLB C Subject: Interpretation of Statutes Table of Content  Fact
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  Case Comment on: TDM Infrastructure Private Limited Versus UE Development India Private Limited  Arbitration Application No. 2 of 2008Name:Suryakiran GRegistration No.:! 2#$Class:8 %A&&% 'C'Sub(ect:)nterpretation of Statutes  *able of Content ã Facts ..........................................................................................................3 ã The Applicable Law ..................................................................................3 ã Judgement and reasoning of the Court.......................................................4 ã Critical Analysis of the Judgement............................................................5 ã Conclusion..................................................................................................  +acts !n the case both the parties were companies incorporated under the !ndian Companies Act #$5.%& 'e(elopment !ndia )ri(ate Limited *+%&'+, was awarded a contract for rehabilitation andupgrading by the -ational ighways Authority of !ndia a portion of which it subcontracted tothe T'/ !nfrastructure )ri(ate Limited *+T'/+,. The shareholders and directors of T'/ wereresidents of /alaysia. All the board meetings and the day to day management of the companywas also managed from /alaysia. The contracts between the parties contained an arbitrationclause which stated that the disputes between the parties would be referred to arbitration as per the pro(isions of the Arbitration and Conciliation Act #$$. The seat of the arbitration was to be -ew 'elhi.'isputes arose between the parties with regard to the appointment of an arbitrator. T'/approached the 0upreme Court for the appointment of an arbitrator in terms of 0ection ##*5, and0ection ##*$, of the Act which inter alia authorises the Chief Justice of !ndia or any other personor institution designated by him to appoint an arbitrator in case of an international commercialarbitration. !n all other matters the arbitrator was to be appointed by Chief Justices of the ighCourts. Thus the issue that came up in front of the court of /r. Justice 0. 1. 0inha was whether the present case was a case of international commercial arbitration. *,e Applicable &a-   Section 2/f/ of art ) of t,e Arbitration an1 Conciliation Act $$ 1efines)nternational Commercial Arbitration. (f) ‘international commercial arbitration’ means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under thelaw in force in India and where at least one of the parties is –  An individual who is a national of, or habitually resident in, any country other than India; or  A body corporate which is incorporated in any country other than India; or    A company or an association or a body of individuals whose central management and control is eercised in any country other than India; or !he overnment of a foreign country   Sections / #/ an1 $/ of t,e Arbitration an1 Conciliation Act $$ rea1 asun1er: ##$ Appointment of Arbitrators – (#) A person of any nationality may be an arbitrator, unlessotherwise agreed by the parties$(%) &ailing any agreement referred to in sub'section (), in an arbitration with a solearbitrator, if the parties fail to agree on the arbitrator within * days from receipt of are+uest by one party from the other party to so agree the appointment shall be made, uponre+uest of a party, by the hief -ustice or any other person or institution designated by him$(.) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the hief -ustice of India or the person or institution designated by him mayappoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities$ 3u1gement an1 Reasoning of t,e Court The 0upreme Court held that the present case is not a case of international commercialarbitration as both the parties ha(e been incorporated in !ndia and thus it does not ha(e the 2urisdiction under the Act to nominate an arbitrator in this case.The Court did not accept the contention of the petitioner that the court had the 2urisdiction toappoint an arbitrator in the present case as the central management and control of the companywas eercised in /alaysia and this would bring it under the definition of internationalcommercial arbitration pro(ided in section *#,*f,*iii,. The court held that in a case where such acompany is registered in !ndia and in a dispute where the opposite party is also an !ndian entity
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