Are contract clauses stating religion of arbitrator discriminatory?

Challenge to supreme court decision in Jivraj v Hashwani has been launched in Europe

Ned Beale
guardian.co.uk
Wednesday 3 October 2012 10.54 EDT

A complaint to the European Commission that the supreme court's decision in Jivraj v Hashwani breaches European laws against discrimination may have major implications for equality and religious freedom.

In 1981, two businessmen from the Ismaili Muslim community, Hashwani and Jivraj signed a contract relating to a joint business venture and included a clause referring disputes to arbitrators who were required to be members of the Ismaili community. Now, 30 years later, this arbitration clause has been considered at every level of the English court system, anda referral to the European court of justice (ECJ) has been requested.

Arbitration has a long history and today is more popular than ever. From multinational corporations to sole traders, businesses arbitrate so that they can choose who will decide their disputes, and avoid the time and cost of court proceedings.

After a lengthy dispute between Hashwani and Jivraj about tax issues, the Ismaili arbitrator adjudicating it resigned. Hashwani failed to find a qualified Ismaili replacement and appointed retired judge Sir Anthony Coleman as arbitrator. Jivraj objected on the basis that Coleman is not a member of the Ismaili community and his appointment breached the arbitration clause. Hashwani responded that the clause is unenforceable under European legislation and the Equality Act 2010 because it unfairly discriminates against non-Ismaili arbitrators.

http://www.guardian.co.uk/law/2012/oct/03/arbitration-religion-discriminatory-jivraj-v-ashwani?newsfeed=true