header-logo header-logo

03 August 2011
Issue: 7477 / Categories: Legal News
printer mail-detail

Clause for concern?

Employment equality regulations do not apply to arbitrators

Arbitrators are not employees for the purpose of anti-discrimination legislation, the Supreme Court has unanimously ruled.

In Jivraj v Hashwani [2011] UKSC 40, the justices found that an arbitration clause specifying that arbitrators be of a particular religion, was neither discriminatory nor void. The clause, in a business agreement between Mr Hashwani and Mr Jivraj, provided that each of three arbitrators must be a respected member of the Ismaili Muslim community.

Hashwani nominated Sir Anthony Colman, a former High Court judge, as arbitrator. Jivraj objected, on the grounds Sir Anthony is Jewish. Hashwani argued that the clause had become unlawful because it discriminated on grounds of religion under the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660).

Overturning the Court of Appeal decision, the justices held that an arbitrator is not an employee but an independent provider of services with a duty of impartiality to both sides of a dispute, and therefore the regulations did not apply.

Sarosh Zaiwalla, senior partner at Zaiwalla & Co, who is acting for Hashwani, said: “It is disappointing that in today’s age the Supreme Court did not take a more enlightened approach to ensure that it would discourage any form of discrimination on grounds of race, religion or sex in the appointment of arbitrators.”

Other lawyers, and arbitrators, have expressed relief at the decision. Following the Court of Appeal’s decision last year, thousands of international businesses made sure their arbitration clauses did not stipulate the religion or nationality of the arbitrator.

Tony Marks, director of legal services at the Chartered Institute of Arbitrators, said: “This will come as a relief to the arbitration profession.”

Adrian Lifely, head of international arbitration at Osborne Clarke, said: “It resolves the uncertainty caused by last year’s surprising judgment.

“As an arbitration centre, London is worth millions of pounds to the UK economy. What makes it attractive to users of arbitration is the ability to arbitrate with minimal interference from the UK courts and for users to freely select the tribunal that will determine their disputes.”

Issue: 7477 / Categories: Legal News
printer mail-details

MOVERS & SHAKERS

Hogan Lovells—Lisa Quelch

Hogan Lovells—Lisa Quelch

Partner hire strengthens global infrastructure and energy financing practice

Sherrards—Jan Kunstyr

Sherrards—Jan Kunstyr

Legal director bolsters international expertise in dispute resolution team

Muckle LLP—Stacey Brown

Muckle LLP—Stacey Brown

Corporate governance and company law specialist joins the team

NEWS

NOTICE UNDER THE TRUSTEE ACT 1925

HERBERT SMITH STAFF PENSION SCHEME (THE “SCHEME”)

NOTICE TO CREDITORS AND BENEFICIARIES UNDER SECTION 27 OF THE TRUSTEE ACT 1925
Law firm HFW is offering clients lawyers on call for dawn raids, sanctions issues and other regulatory emergencies
From gender-critical speech to notice periods and incapability dismissals, employment law continues to turn on fine distinctions. In his latest employment law brief for NLJ, Ian Smith of Norwich Law School reviews a cluster of recent decisions, led by Bailey v Stonewall, where the Court of Appeal clarified the limits of third-party liability under the Equality Act
Non-molestation orders are meant to be the frontline defence against domestic abuse, yet their enforcement often falls short. Writing in NLJ this week, Jeni Kavanagh, Jessica Mortimer and Oliver Kavanagh analyse why the criminalisation of breach has failed to deliver consistent protection
Assisted dying remains one of the most fraught fault lines in English law, where compassion and criminal liability sit uncomfortably close. Writing in NLJ this week, Julie Gowland and Barny Croft of Birketts examine how acts motivated by care—booking travel, completing paperwork, or offering emotional support—can still fall within the wide reach of the Suicide Act 1961
back-to-top-scroll