Discriminatory Choice of Arbitrators 2

The decision of the Court of Appeal (see post of 20 July) in Jivraj has generated considerable debate within the arbitration community. In particular, there is widespread concern that the decision applies to arbitration agreements which place restrictions on the nationality of individuals who may be appointed as arbitrators. This includes agreements which incorporate institutional rules, such as the ICC and LCIA Rules, that contain nationality provisions.  Both are seeking to intervene in the appeal.

Both parties applied for permission to appeal to the Supreme Court, with the ICC and LCIA intervening in support of the permission application.  The Supreme Court has recognised the importance of the issues in this case and given permission to appeal. The outcome will provide much needed clarity and certainty for the international business community.

The Appeal is expected to be heard in the second half of 2011.

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