The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s appeal succeeded. The Directive was concerned with discrimination in several fields many of which were already provided for under UK law. The Regulations had a much more limted scope. An arbitrator’s appointment created a contract for services and ‘a contract personally to do any work’. It was therefore within the definition of ’employment’ in regulation 2(3), and the appointor was an ’employer’ within 6(1). The restriction of appointments to members of the Ismaili community was unlawful discrimination on religious grounds, both in making ‘arrangements . . for the purpose of determining to whom he should offer employment’ contrary to regulation 6(1)(a), and by ‘refusing to offer, or deliberately not offering’ employment contrary to regulation 6(1)(c). Being a member of the Ismaili community was not ‘a genuine occupational requirement for the job’ within the meaning of the exception in regulation 7(3).
Judges:
Moore-Bick, Aikens LJJ, Sir Richard Buxton
Citations:
[2010] EWCA Civ 712, [2010] 2 Lloyd’s Rep 534, [2010] IRLR 797, [2010] ICR 1435
Links:
Statutes:
Employment Equality (Religion or Belief) Regulations 2003, Council Framework Directive 2000/78/EC of 27 November 2000
Jurisdiction:
England and Wales
Citing:
Appeal from – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – von Hoffmann v Finanzamt Trier ECJ 16-Sep-1997
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent . .
Cited by:
Appeal from – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.
Arbitration, Discrimination
Updated: 11 August 2022; Ref: scu.417106
