CHOICE OF ARBITRATORS: ANY RESTRICTIONS ON THE NATIONALITY OF ARBITRATORS? A CRITICAL ANALYSIS OF THE NURDIN JIVRAJ V SADRUDDIN HASHWANI CASE

Authors : Ayşe Tuğba ÖZKARSLIGİL

Pages : 1-20

View : 81 | Download : 35

Publication Date : 2023-07-01

Article Type : Research Paper

Abstract :The fundamental essence of international arbitration lies in the presence of an arbitral tribunal that is characterized by impartiality, independence, and neutrality. Impartiality and independence of arbitrators are associated with avoiding any t or bias towards either party, while neutrality pertains to the arbitrator’s nationality. The principal question in Jivraj v Hashwani case is to determine the limits on party autonomy in the selection of arbitrators. In particular, Jivraj v Hashwani case raised the issue of whether a requirement for an arbitrator to be a member of a particular religious community was discriminatory and thus unlawful. As is seen from this case, the English Court of Appeal ruled that including a religious requirement in an arbitration clause is unlawful and renders the clause null and void. The Supreme Court of the United Kingdom overturned the English Court of Appeal’s decision and upheld the freedom of parties to specify their arbitrators. Supreme Court decision in Jivraj v Hashwani provided some clarity on issues such as employment, nationality, and retroactivity when contracts were governed by United Kingdom law. This article investigates boundaries of party autonomy in appointing arbitrators.
Keywords : Tahkim, Hakem Seçimi, Tahkim Sözleşmesi, Hakemlerin Uyruğu, Tahkim Şartı

ORIGINAL ARTICLE URL