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03 August 2011
Issue: 7477 / Categories: Legal News
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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
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MOVERS & SHAKERS

NLJ Career Profile: Stephen Ward, The Barrister Group

NLJ Career Profile: Stephen Ward, The Barrister Group

From mowing lawns to life at the Bar: Stephen Ward reflects on an unconventional career

Clarke Willmott—Ben Loosemore

Clarke Willmott—Ben Loosemore

Commercial property partner joins Clarke Willmott in Southampton

Ellisons—Robert Tiffen

Ellisons—Robert Tiffen

Robert Tiffen joins Ellisons as Partner in growing Norwich office

NEWS
The Law Society RFC Festival of Sport returns next month, bringing together legal and financial services professionals for one of the sector’s largest annual sporting events
Legal aid deserts leave almost one in four without adequate access to justice
The Solicitors Regulation Authority (SRA) has warned solicitors and law firms that using artificial intelligence does not alter their professional obligations, amid concerns over inaccurate legal material and client confidentiality
From forgotten interest claims to case-management appeals, a string of procedural developments offers useful—and occasionally cautionary—lessons for practitioners

Jonathan Fisher KC highlights that it now accounts for around 40% of criminal offences, with roughly 70% involving technology, and argues that the UK cannot simply prosecute its way out of the problem. Detection, investigation and prosecution all require improvement, while different fraud types demand tailored responses.

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