• Journal of Arbitration Studies
• /
• v.26 no.1
• /
• pp.29-51
• /
• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.

• Journal of Arbitration Studies
• /
• v.18 no.1
• /
• pp.31-47
• /
• 2008

An arbitrator's duty shall be independence and impartiality such as a judge who has procedurally absolute position. Independence is the freedom from others, impartiality is the status of having no-partial condition. Although these show relevance between independence and impartiality, in actuality, it is not easy to prove them. Therefore, arbitrator has to prove his or her position by opening the public of reality and by having an obligation of notification. Each country which applies Arbitration rules or Arbitration act stays the same as Korean Commercial Arbitration Board does. Hence, each country has the moral principles in order to establish a standard of judgement for essential factors and requests preferentially the impartiality and the publicity. In reality, court of justice in England excludes arbitrator who has the close relation to a person concerned. Justice in France cancelled an authorization of arbitrator because of having the economic interest to the person concerned. And also, In United States, Federal Court reverses an arbitration judgment without giving any partiality to a person concerned because of not opening a public about the relationship between arbitrator and a person concerned. Therefore, decision basis of the independence and the impartiality is standardized by the economic interest of a person concerned, professional relation, society connection, relationship between arbitrator and arbitration representative in the same case while in process of arbitration, arbitrator's nationality If arbitrator does not keep the independence and the impartiality by a position of judge, he or she has to make responsible. this duty is divided by two things: civil case and crime case. and if arbitrator does break this responsibility, he or she will get the cancellation of judge and compensation of damage. However, Korea is placed in the real circumstance without judge precedent and moral principles including the independence and impartiality. In order to getting the good reputation of international arbitration institution, this country will have to enact principles of the independence and impartiality for arbitrator.

• Journal of Arbitration Studies
• /
• v.25 no.1
• /
• pp.47-64
• /
• 2015

Pursuant to Article 109(1) of the Attorney-at-Law Act of Korea, a person, not an attorney-at-law, who receives or promises to receive money, articles, entertainment or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as examination, representation, arbitration(emphasis added), settlement, solicitation, legal consultation, making of legal documents, etc. shall be punished by imprisonment with prison labor for not more than 7 years or by a fine not exceeding KRW 50 million or may be punished by both and there is no specific provision on qualification of arbitrator except on nationality of an arbitrator in the Arbitration Act of Korea. Then, the question arises, can any non-lawyer arbitrator who receives arbitrator's fees be punished in accordance with the Attorney-at-Law Act in Korea? To search for an answer for this matter, this paper examines the Arbitration Act or the Civil Procedure Code of 33 major countries in the world and explains a research on the participation ratio of non-lawyer arbitrators in all 360 arbitration cases registered in 2012 at the Korean Commercial Arbitration Board (KCAB).