Jivraj v Hashwani [2011] UKSC 40

We reported on the CA decision in Issue 123. The CA had decided a requirement that an arbitrator be a member of the Ismaili community was discriminatory and unenforceable. The reason given for this was that arbitrators were employees of the parties pursuant to UK employment legislation. It is fair to say that the decision was a controversial one, with many fearing that it might mean that the requirements in arbitral rules that a sole arbitrator not be the same nationality as any of the parties would also be unenforceable. However the Supreme Court has now overturned the decision. UK anti-discrimination law does not apply because arbitrators are not employees. Lord Clarke stated:

“The question is whether, in all the circumstances, the provision that all the arbitrators should be respected members of the Ismaili community was legitimate and justifi ed. In my opinion it was. The approach of the Court of Appeal seems to me to be too legalistic and technical.”