Ned Beale & Hannah Shribman welcome the Supreme Court’s move to exclude arbitration agreements from anti-discrimination legislation
In Jivraj v Hashwani [2011] UKSC 40, [2011] All ER (D) 246 (Jul), the Supreme Court reversed a decision by the Court of Appeal ([2010] EWCA Civ 712, [2011] 1 All ER 50) which had surprised employment and arbitration lawyers alike by holding that an agreement providing for arbitrators to be selected on the basis of their religion was void under anti-discrimination legislation. Holding that arbitrators were “employed” for the purposes of the legislation appeared an over-simplification of the legal test, thereby potentially extending the ambit of the Equality Act 2010 (EqA 2010) to other individual suppliers of services. There was also a concern that arbitration agreements which require international arbitrators to be of neutral nationality, as provided for by the International Criminal Court (ICC), London Court of International Arbitration (LCIA) and other institutional rules, might be held to be discriminatory and therefore similarly void. This led to the ICC and LCIA
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