When is it Unlawful to Choose the Religion of an Arbitrator?

When the civil rights movement took off in the United States during the 1950s and 1960s, the ideal future which purportedly lay ahead was one in which justice would be colorblind — in Dr. King’s famous words, a man would be judged by the content of his character rather than the color of his skin.

Things didn’t quite work out that way, unfortunately. The good intentions of the 1960s paved the road that led to the multicultural hell of the 21st century. “Affirmative action” came along almost immediately after the Civil Rights Act, and — contrary to the promises issued at the time — is still here, and will assuredly outlive me.

As far as public affairs were concerned, we simply took our collective thumb off the white side of the scale and put it on the black side of the scale. Somehow, despite all the favoritism and special attention, racial “equality” never arrived, and probably never will. The current system of racial justice in America is deeply, systemically flawed, and the political will to examine it with any public honesty does not exist.

A notable example is jury selection by race, which would be totally unconstitutional if it were ever officially implemented. However, the process is tacit, even though everyone involved understands and accepts the rules. When a defendant is in the dock, the racial composition of the jury is considered very important — unless the accused is white, of course, and then it doesn’t matter, at least as far as the media are concerned.

If the defendant is black or Hispanic, however, the makeup of the jury is scrutinized carefully and publicized vigorously. If the jury is too beige, and the defendant ends up being convicted, the MSM looks askance at the verdict, as if “racism” were the only possible reason for the conviction.

It’s well-known that an all-ethnic jury is substantially less likely to convict one of their own, but once again this is of no importance, and certainly no evidence of “racism” on the part of non-whites.

The unacknowledged but widely-held premise of the above is that only white people are capable of being racist, and the corollary is that all of them are assumed to be racists until they prove otherwise by correctly pronouncing the required politically correct shibboleths.

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I bring all this up because of the following case from England, which is similar to racial “justice” in the United States. Muslims like to style themselves as the new Jews, but in reality they’re more like the new Negroes, with sharia-oriented rules designed to tip the scales in their favor.

The case described below is an intra-Muslim dispute, and the issue is whether a non-Muslim arbitrator can be legally challenged by one of the parties. Note: this text is taken from a mailing sent out by the publicist for one of the parties to the case, so it is not unbiased. However, it brings up some fascinating aspects of British law, and I’d be interested to hear the opinions of some of our readers in the UK about the whole affair:

Choosing the religion of an arbitrator is unlawful

On 6 July 2010 the English Court of Appeal delivered its judgement in Hashwani v Jivraj.

The Court of Appeal determined three main points. Firstly, an Arbitration Agreement governed by the English Arbitration Act 1996 cannot provide a term that the Arbitrator must belong to a particular religion or belief. Secondly, that an Arbitrator is an employee of the parties. Thirdly, that an Arbitration Agreement that provides for the Arbitrator to belong to a particular religion is void.

The Court accordingly held that arbitrators are “employees” for the purpose of applying the anti-discrimination rules under the Regulation because, although not employees by ordinary standards, arbitrators are engaged under a contract personally to carry out work of a particular kind.

Background of the case

Mr Hashwani and Mr Jivraj are both members of the Shia Ismaili Muslim Community.

On 31 July 2008, Mr Hashwani’s solicitors, Messrs Zaiwalla & Co, acting on behalf of Mr Hashwani, wrote to Mr Jivraj and appointed Sir Anthony Colman, a retired English High Court Judge, as an Arbitrator under the Joint Venture Arbitration Agreement.

Mr Jivraj commenced proceedings at the High Court seeking a declaration that the appointment of Sir Anthony Colman was invalid.

Feared impact of the Judgement on International Institutions

It is said by International Institutions that, by implication, this would also cover any discrimination on the grounds of nationality. Their fear is that, within the English Equality Laws, nationality is subsumed within the protected characteristic of ‘race’ which is defined in Section 9 of the UK Equality Act 2010 to include colour, nationality or ethnic or national origins.

In International Arbitrations where parties are of different nationalities, and often mistrust their opponent’s legal and judicial systems, it is necessary and essential to give an appearance of neutrality to an Arbitration Tribunal by appointing a third arbitrator of a different nationality who comes from a neutral country.

Concerns of Religious bodies that provide mediation or arbitration service for their community members

Religious institutions that provide arbitration services for their community members fear that the days of these arbitration services are numbered. Their fears are misplaced. Parties are open to enter into an Arbitration Agreement making it clear in the Agreement that the Jewish community rules would apply. The Judgment is therefore unlikely to have any impact on the religious community arbitrations so long as the Arbitration Agreement does not provide that a national law will apply.

The parties are therefore free to have their disputes determined by members of their community only if they have agreed in the Arbitration Agreement that the particular religious law or rules and ethos of the community would apply to the dispute.

Concerns amongst Arbitrators

Some Arbitrators are upset and find it offensive that they should be termed ‘employees’. This attitude is surely ill-conceived. An arbitrator is a human being like everybody else. He is not from Mars. There is nothing offensive in the arbitrator being termed as an “employee”. An arbitrator is in fact “employed” by the parties to provide his service, which is to determine the disputes either alone or with his co-arbitrators.

It therefore seems to the writer that the concerns caused to many in the arbitration community by the Hashwani v Jivraj judgment are unjustified. What the Courts in EU countries will need to do is to bring about a balance which upholds the broad policy of anti-discrimination on the prohibited grounds but allow the choice of an arbitrator of a particular religion or sex when there is a truly genuine occupational requirement. This can be done. The price of this change of approach is small but the prize will be large.