Arbitration—Requirement for Ismaili arbitrator—Whether arbitration clause unlawful

Queen’s Bench Division, Commercial Court, David Steel J,
26 June 2009

The Employment Equality (Religion or Belief) (Amendment) Regulations 2003 (SI 2003/2828) (EER 2003) are not applicable to the selection, engagement or appointment of arbitrators.

Rhodri Davies QC and Schona Jolly (instructed by Hill Dickinson) for J. Stephen Nathan QC and Tom Hickman (instructed by Zaiwalla & Co) for H.
J and H were members of the Ismaili community which formed part of the Shia branch of Islam.

In 1981, they established a joint venture to make investments in real estate. Clause 8 of one of the joint venture agreements provided any arbitrators appointed pursuant to the agreement should be “respected members of the Ismaili community”. J and H parted company in 1988. Several issues were resolved by arbitration, but a dispute eventually arose about the appointment of one arbitrator, C, whom H wished to appoint. J sought a declaration that C’s appointment was invalid since he was