Arbitrator 'not an employee', says Supreme Court
CIArb News / 27 July 2011
The UK Supreme Court has unanimously allowed the appeal in the landmark case of Jivraj v Hashwani on the grounds that an arbitrator is not an employee for the purposes of the Employment Equality (Religion and Belief) Regulations 2003.
The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also found that the parties' requirement that an arbitral panel must consist of members of the Ismaili community would have fallen within the exception for genuine occupational requirements if the Regulations had applied.
The Supreme Court decision overturns the Court of Appeal's judgment given in July 2010, which found that an arbitrator is an employee for the purposes of the Regulations and that arbitration agreements under English law which required the arbitrator to hold any particular religion or belief would be unlawful and therefore void.
This decision caused concern amongst the arbitration community that this might invalidate many existing arbitration agreements that provide for the appointment of arbitrators on the basis of nationality.
Tony Marks FCIArb, Diretor of Legal Services at CIArb said:
"We're pleased to see that the Supreme Court has overturned the Court of Appeal's judgment, as the consequences of that judgment were wide ranging and difficult for the profession of arbitrators. The Supreme Court has taken the sensible view that the nature of the arbitrator's role is not that of an employee but of an independent provider of services. This will come as a relief to the arbitration profession."
A fuller discussion of this case will be available on CIArb's website shortly. To read the full judgment visit the Supreme Court's website.