Jivraj v Hashwani: Selection Criteria in Arbitration Agreements

Abstract

This paper offers a critique of the case Jivraj v Hashwani in the English Court of Appeal. It examines the question of whether selection criteria for arbitrators in arbitration agreements are lawful according to European Union anti-discrimination legislation. The author argues first that the appointment of an arbitrator is not an employment covered by the Equality Act 2010. Further, the paper proposes that even if the appointment is an employment, the anti-discrimination legislation of the European Union is not applicable in general to arbitral proceedings. Freedom of contract – the most important principle in arbitration – would come to exist only in theory if anti-discrimination legislation were applied. If this were to happen, arbitration would lose its meaning as an alternative dispute-resolution method because its main comparative advantage over litigation would be gone.