A UK case headed to the European Court of Justice involves an arbitration provision between two businessmen that requires that arbitration of all disputes be conducted only before an Ismaili Muslim arbitrator. The challenger contends that this provision breaches European laws against discrimination as well as the UK’s Equality Act 2010 by unfairly discriminating against arbitrators of other religions
The UK supreme court held that arbitrators are not protected by equality legislation, and that even if they are, the requirement for an arbitrator to be of a particular religion was a "genuine occupational requirement," that is, it was genuinely necessary for the arbitrator to be from the Ismaili Muslim community to decide the dispute. The challenger, however, contends that "This is a commercial dispute which in reality only required an experienced lawyer – there was no question of religion.”
The other side – and the supreme court -- say that parties who have consented to private arbitration should have the freedom to also choose their arbitrator, irrespective of the anti-discrimination laws.
Ned Beale of The Guardian has commented that “The case involves the balancing of two conflicting principles of human rights: equality and the elimination of discrimination on the one hand, versus religious and personal freedom on the other,” and that the ultimate decision “may have major implications for equality and religious freedom.”