JIVRAJ V HASHWANI

[2009] EWHC 1364 (Comm), Queen’s Bench Division, Commercial Court, Mr Justice David Steel, 26 June 2009

Arbitration – Appointment of arbitrator – Arbitration clause imposing religious requirement – Whether clause valid – Whether an arbitrator was an employee – Employment Equality (Religion or Belief) Regulations 2003 – European Convention on Human Rights, articles 6, 7, 9 and 14

The parties were both members of the Ismaili community, a part of the Shia branch of Islam and headed by the Aga Khan. In 1981 the parties established a joint venture with the purpose of investing in land in a number of jurisdictions. The arbitration clause provided that any dispute was to be “referred to three arbitrators ... All arbitrators shall be respected members of the Ismaili community and holders of high office within the community”. H wished to appoint an arbitrator who was not a member of that community. H asserted that the requirement in the clause was not enforceable. David Steel J disagreed and held that the clause was valid. (1) The Employment Equality (Religion or Belief) Regulations 2003, which outlawed discrimination in the field of employment and occupation, did not apply to arbitrators, because they were not employees, and even if they were the qualification was justified on the basis that it was a genuine occupational requirement. (2) The European Convention on Human Rights was not applicable: the selection of an arbitrator on religious grounds was nothing to do with the right to a fair trial (article 6) and the restriction was in any event objectively justified. Further, freedom of religion under article 9 was not affected by an arbitration clause which imposed religious restrictions.