Australia: Jivraj developments

International arbitration newsletter
Last Updated: 1 December 2010
This article is part of a series: Click Dispute resolution in London for the previous article.

December 2010

By Joe Tirado and James Thomas

This article reviews the arguments and recent developments regarding the controversial judgment in Jivraj v Hashwani [2010] EWCA 712, which ruled that an arbitration clause was void because the appointment provisions specified that the arbitrator was to be Ismaili (see our last issue, September 2010).

This may mean that if a clause specifies that a sole arbitrator or chairman must come from a neutral country or specifies some other nationality-based qualification, the whole arbitration clause may be void. The International Chamber of Commerce (ICC) and London Court of International Arbitration (LCIA) have intervened in the application for permission to appeal to the UK Supreme Court against the judgment in this case.

Recap of the case

An arbitration clause specified that any dispute between the parties must be decided by a panel, all of whom must be "respected members of the Ismaili community". One of the parties attempted to appoint a non-Ismaili, and the other challenged the appointment. The Court of Appeal decided that the arbitrator was "in employment" under the Employment Equality (Religion and Belief) Regulations 2003. The Directive to which the Regulations give effect states that it is concerned with discrimination affecting access to the means of economic activity. The definition of employment in the Regulations includes a "contract personally to do any work". An arbitrator - so the court held – had a contract personally to work and this afforded him access to economic activity, so his job was, for purposes of the Regulations, no different from a solicitor or plumber.

The Court of Appeal further decided that being Ismaili was not a "genuine occupational requirement" which would have provided an exception to the Regulations. Although the court accepted the argument that Ismailis commonly decide disputes within their own community, the arbitrator was deciding the dispute according to English law (not under an ex aequo et bono clause) and he did not need to be Ismaili to do so.

"The English courts have a good record of supporting international arbitration."

The result was that the whole arbitration clause was rendered void and the parties would have to litigate if they did not agree a new clause. Appointment provisions are usually an important factor in securing agreement to an arbitration clause and so the clause could not survive without the appointment provisions.

This case has caused considerable debate because of the possibility that it may be applied to more common clauses. The Court of Appeal acknowledged its judgment was likely to have wider implications. The current uncertainty is at best unhelpful and at worst capable of causing long-term damage to London's pre-eminent standing as an international arbitration centre.

The Supreme Court has now granted permission to appeal. It is anticipated that some interested third parties such as the ICC and the LCIA may apply for permission to intervene. Although the clause in Jivraj was unusual, the institutions are concerned about the application of the principles in the judgment to their appointment procedures. Other institutions and organisations may also intervene in support.

Retaining the confidence of the parties

The ICC and LCIA Rules provide that the sole arbitrator or chair of the arbitrators should have a neutral nationality (ie, different from that of the parties). Under the Equality Act 2010 (which on 1 October 2010 superseded the Race Relations Act 1976) this appears to constitute direct race discrimination. The exception for an occupational requirement may not apply because arbitrators are presumed to be capable of applying the law in a fair and unbiased way even if they have the same nationality as one of the parties. In any event, there are already provisions in the Arbitration Act 1996 to prevent actual and perceived bias.

"There is every reason to believe the decision in Jivraj will be confined to its particular facts."

The prospect of arbitration clauses being declared void has led some commentators to recommend that when parties are negotiating an IC or LCIA arbitration clause, they should consider excluding this aspect of the appointment provisions.

The English courts have a good record of supporting international arbitration. There is every reason to believe the decision in Jivraj will be confined, therefore, to its particular facts. Retaining the confidence of international parties by allowing them to choose, if they wish, a sole arbitrator or chairman of neutral nationality is permitted under the Equality Act as an occupational requirement. Retaining the parties' confidence in this way is a legitimate aim and

the appointment provisions are a proportionate way of achieving it. Additionally, if the provisions are unlawful, then they might be severed from the rest of the institutional rules. There are also arguments that arbitrators are not "in employment" because the parties do not exercise control over them.

European impact

This is a Europe-wide question because EU treaties contain the principle of equal treatment on grounds of nationality. Although the question has not yet come before other European courts, arbitration practitioners across Europe are watching the outcome of the Supreme Court appeal with interest.

It is anticipated that the appeal will be heard by the Supreme Court in late 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

This article is part of a series: Click Dispute resolution in London for the previous article.
This article is part of a series: Click New UNCITRAL rules for the next article.
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.