In this post, we will first deal briefly with the facts in the case of Jivraj v Hashwani and the findings of the first instance judge and the Court of Appeal, which by now would be very familiar to anyone reading this blog. We will then look at the Supreme Court’s judgment ([2011] UKSC 40), in particular its observations on the “genuine occupational requirement” (GOR) issue (discussed below) which robustly support the broad autonomy of the parties inherent in consensual arbitration to appoint decision makers with an understanding of their legal systems, social traditions and commercial background.

The dispute arose out of an arbitration clause in a joint venture agreement which provided for [...]

There was no shortage of coverage of the recent English Supreme Court case Jivraj v Hashwani, the case concerning whether an arbitration clause was contrary to anti-discrimination legislation applicable to employees. But there was one issue which received little attention before the Supreme Court – whether or not the nature of the relationship between the arbitrators and the parties was a contractual one.

This issue was relevant to the appeal because the anti-discrimination legislation in place included in its definition of “Employment” the words “a contract personally to do work“. One obvious way of escaping the legislation would be if there is no contract in place between the arbitra [...]

The public policy exception under Article V(2)(b) of the New York Convention is well recognised as the amorphous exception. To the extent it has been capable of definition, it has been found to embrace nebulous concepts such as a state’s most basic notions of morality and justice. No doubt it is for this reason that it was described by an English judge almost two centuries ago as an unruly horse which carries its rider to unpredictable destinations. While more established arbitration friendly jurisdictions have developed a restrictive approach to the public policy, elsewhere it has remained the refuge of last resort for the dissatisfied party to an arbitral award. This concern was succin [...]