(1 April 1940 - 25 September 2011) was a Kenyan environmental and political activist. She was educated in the United States at Mount St. Scholastica and the University of Pittsburgh, as well as the University of Nairobi in Kenya. In the 1970s, Maathai founded the Green Belt Movement, an environmental non-governmental organization focused on the planting of trees, environmental conservation, and women's rights. In 1986, she was awarded the Right Livelihood Award, and in 2004, she became the first African woman to receive the Nobel Peace Prize for "her contribution to sustainable development, democracy and peace." Maathai was an elected member of Parliament and served as assistant minister for Environment and Natural Resources in the government of President Mwai Kibaki between January 2003 and November 2005. In 2011, she died of complications from ovarian cancer.

In a seminal decision very recently published in the case of Jivraj v Hashwani [2011] UKSC 40, the English Supreme Court (formerly the House of Lords) dismissed a challenge to the parties' hitherto undoubted right to determine the composition of their arbitral tribunal, and reaffirmed its support for the "breadth of discretion left to the parties and the arbitrator to structure the process for resolution of" their disputes in arbitration.

Background

The case arose from a lengthy dispute between two former partners, who in 1981 entered an agreement which contained an arbitration clause stating that any disputes between them would be resolved by an arbitral tribunal comprising of "respected members of the Ismaili community and holders of high office within the community". However, in 2008 Hashwani, one of the parties to the contract, sought through his lawyers to appoint a respected retired English Judge who was not a member of the Ismaili community. That party claimed that the provision requiring the arbitrators to be members of the Ismaili community was void under the Employment Equality (Religion or Belief) Regulations 2003 (the "Regulations"), because it constituted unlawful discrimination on the grounds of religion in respect of the employment of arbitrators.

The Regulations did not apply, because in English law an arbitrator is not an employed person under "a contract personally to do any work."

An arbitrator is, instead, an "independent provider of services", a "quasi-judicial adjudicator" [whose] "functions and duties require him to rise above the partisan interests of the parties and not to act in, or so as to further, the particular interests of either party...he must determine how to resolve their competing interests. He is in no sense in a position of subordination to the parties; rather the contrary." No-one who has served as an arbitrator, appeared before one or submitted a dispute to arbitration could argue credibly with any of this. Lord Clarke's summation indicates, in diplomatic and veiled terms, just how badly the Court of Appeal missed the mark: "it is in my opinion plain that the arbitrators' role is not one of employment under a contract personally to do work."

 As for the judgment itself, it will not be easy to find an arbitration practitioner or client who believes that the Supreme Court got it wrong on either point, but any contrary views would be very welcome.

There are a number of reasons why parties would wish to appoint an arbitrator of a specific nationality, not least to ensure the neutrality of the Chairperson in an international dispute. Furthermore, requiring the arbitrator to be of a particular number of years' call could risk being discriminatory on the grounds of age. By restricting that discretion in the UK, there was concern that parties would choose to pitch their arbitral seat elsewhere. However, following this Supreme Court decision, the autonomy of the parties in their choice of how to structure the resolution process has been confirmed.