By judgments given on 27 July 2011 in Jivraj v Hashwani [2011] UKSC 40 the Supreme Court reversed the decision of the Court of Appeal and held that UK discrimination law did not apply to the selection or appointment of arbitrators. In the judgments under appeal to the Supreme Court, the Court of Appeal had held that the stipulation of a religious qualification for an arbitrator was unlawful unless justified under the discrimination legislation. This decision caused consternation in the arbitration world because it implied that common provisions excluding arbitrators from appointment on the grounds that they shared a nationality with one of the parties might similarly fall foul of the discrimination legislation, casting doubt on the validity of many arbitration agreements and on the enforceability of awards made under them. The judgment of Lord Clarke for the Supreme Court confirms that UK discrimination law does not have such effects and clarifies that the provisions of the Equality Act 2010 applying to employees are concerned with employment relationships and not with services provided by genuinely independent contractors, including arbitrators. In addition, the Court held that, in the case before it, the religious qualification for the arbitrators could, if necessary, have been justified as falling within the exception for genuine occupational requirements.
Rhodri Davies QC appeared for the successful appellant in the Supreme Court and Laurence Rabinowitz QC appeared for the LCIA as an intervener supporting the appeal.