UK Supreme Court Confirms Parties’ Right to Choose Nationality of Arbitrators

On 22 June 2010, the Court of Appeal of England and Wales, ruling on Jivraj v Hashwani [2010] EWCA Civ 712, [2010] ICR 1435, held that arbitrators are employees for the purposes of UK law. This decision caused considerable controversy in international arbitration circles because it appeared to render a common arbitral practice — prescribing the nationality of arbitrators — illegal under UK anti-discrimination laws. This, in turn, threatened numerous existing arbitration agreements with being void and, more significantly, threatened to erode the effectiveness of London as a seat for international arbitrations.

On 27 July 2011, the UK Supreme Court overruled the Court of Appeal’s controversial decision in Jivraj v Hashwani [2011] UKSC 40. As a result of this decision, London is certain to remain a popular place to conduct international arbitrations.