Jivraj v Hashwani [2009] EWHC 1364 (Comm) (26 June 2009)

Jivraj v Hashwani [2009] EWHC 1364 (Comm) (26 June 2009)

The requirement that all arbitrators be members of the Ismaili community is not unlawful under the Employment Equality (Religion or Belief) Regulations 2003 because arbitrators are not 'employed' within the meaning of the Regulations. Even if the Regulations applied, the requirement is justified as a genuine occupational requirement based on the religious ethos of the parties. The Human Rights Act 1998 does not render the clause invalid, and there is no breach of public policy. The arbitration clause is valid and enforceable as drafted; if the requirement were invalid, the entire clause would fail and could not be severed.

Citation
[2009] EWHC 1364 (Comm)
Parties
Claimant (in First Action), Defendant (in Second Action): Nurdin Jivraj; Defendant (in First Action), Claimant (in Second Action): Sadruddin Hashwani
Jurisdiction
England and Wales
Judgment Date
26 June 2009
Procedural Posture
Commercial Court Proceedings (applications Under Arbitration Agreement) / Judgment on Preliminary Issues Regarding Validity and Enforceability of Arbitration Clause
Outcome
Claim dismissed; arbitration clause upheld
Legal Topics
Religious Discrimination, Arbitrator Qualifications, Employment Equality (religion or Belief) Regulations 2003, Human Rights Act 1998, Public Policy in Contract, Severance of Contract Terms
Arbitration Employment Law Human Rights Law Contract Law Religious Discrimination Arbitrator Qualifications Employment Equality (religion or Belief) Regulations 2003 Human Rights Act 1998 +2 more

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Parties

Nurdin Jivraj

Claimant (in First Action), Defendant (in Second Action)

Sadruddin Hashwani

Defendant (in First Action), Claimant (in Second Action)

Procedural Posture

Commercial Court Proceedings (applications Under Arbitration Agreement) / Judgment on Preliminary Issues Regarding Validity and Enforceability of Arbitration Clause

Legal Issues

  1. 1 Does the Employment Equality (Religion or Belief) Regulations 2003 apply to the appointment of arbitrators under the JVA?
  2. 2 Is the requirement that arbitrators be members of the Ismaili community discriminatory and unlawful?
  3. 3 Is such discrimination justified or exempted under the Regulations?

Ratio Decidendi

The requirement that all arbitrators be members of the Ismaili community is not unlawful under the Employment Equality (Religion or Belief) Regulations 2003 because arbitrators are not 'employed' within the meaning of the Regulations. Even if the Regulations applied, the requirement is justified as a genuine occupational requirement based on the religious ethos of the parties. The Human Rights Act 1998 does not render the clause invalid, and there is no breach of public policy. The arbitration clause is valid and enforceable as drafted; if the requirement were invalid, the entire clause would fail and could not be severed.

Court Disposition

Claim dismissed; arbitration clause upheld

Orders

  • Declaration that Article 8 of the Joint Venture Agreement is valid and enforceable; Mr Hashwani is not at liberty to appoint a non-Ismaili arbitrator.