Jivraj v Hashwani [2011] UKSC 40

Jivraj v Hashwani [2011] UKSC 40   On 27 July 2011, in a unanimous decision, the Supreme Court overturned the judgment of the Court of Appeal in the case of Jivraj –v- Hashwani.  The Supreme Court’s judgment had been eagerly awaited. In this case, the Court of Appeal had held that GB anti-discrimination legislation rendered void an arbitration agreement which required that all arbitrators be members of a specific religious community. This has given rise to much discussion regarding its potential implications for international arbitration, as well as to suggested amendments to arbitration clauses where the impact of the case might have been felt.

Jivraj and Hashwani started a property investment JV in 1981, with a term that disputes should go to three arbitrators, one appointed by each, and all from the Ismaili community. In 1988 it was terminated, and some assets divided. In 2008, Jivraj’s solicitors wrote claiming more payment and requesting an arbitrator, but identifying a preferred non-Ismaili arbitrator. Hashwani said this was invalid, but Jivraj argued that the Ismaili requirement was contrary to EERBR 2003 r 6(1) and Directive 2000/78/EC art 3.

Lord Clarke held that an arbitrator’s position could not fall under the EERBR 2003 (now the EA 2010 s 13) because it had to be construed in light of the aim of Directive 2000/78, and the jurisprudence of the ECJ. This drew a clear distinction, beyond the requirement of work for a wage in Lawrie-Blum, between those in a subordinate position, as in Allonby, and independent providers of services. An arbitrator was not subordinate, and not even a contract personally to do work. No part of the agreement was invalid.

 the regulations had been applicable, though, they would have fallen under r 7(3) as a genuine occupational requirement because an Ismaili requirement was indeed genuine and also justifiable.

 

Source: Wikipedia