Author: Giorgio Bernini*
Published: May 2013
The necessity of an explanatory introduction stems from the circumstance that this article on Jivraj v. Hashwani consists of two parts, written at different times. The chronological hiatus was inevitable since the comment on the Court of Appeal judgment was written before the Supreme Court judgment was handed down. It follows that the two comments identified below in Parts One and Two are basically self-contained in terms of reading and understanding, but the overall logic of the Jivraj case makes the analysis of the judgments of the Court of Appeal and of the Supreme Court complementary, as evidenced by the frequent cross references between the two comments. This is all the more so, as the decisions of the Court of Appeal and that of the Supreme Court are largely contradictory, and also differ in terms of underlying assumptions and style of argument. Thus, the overall understanding of the case cannot ignore the elements of connection between the two judgments with regard to their underlying reasoning and conclusions, which has impacted the way in which the two comments are drafted, although attempts have been made to avoid, for the reader’s sake, the annoyance of moving from one text to the other.
*LL.M., S.J.D., Michigan Law School; formerly Professor, University of Bologna, Chair: Depts. of Commercial Law, National and International Arbitration; Senior Partner, Studio Bernini e Associati; Honorary President of the International Council for Commercial Arbitration (“ICCA”).