Members of Essex Court Chambers (Toby Landau QC, Paul Key and David Craig) successfully represented the International Chamber of Commerce (as an intervener) in the Supreme Court in Jivraj v Hashwani [2011] UKSC 40. Although he was not available for the expedited hearing, Andrew Hochhauser QC of Essex Court Chambers also advised and represented the ICC during the earlier stages of the Supreme Court proceedings.
The Supreme Court agreed with the ICC’s contentions that (i) arbitrators are not employees for the purpose of anti-discrimination legislation and (ii) notwithstanding that the substantive law of the dispute was English law, the requirement in the material arbitration agreement that the arbitrator be of a particular faith and from a particular community amounted in any event to a “genuine occupational requirement” such that an exception in the anti-discrimination legislation would be engaged. This important decision has provided welcome clarification to a much-debated issue for international arbitration. In particular, it confirms that arbitration agreements do not need to comply with anti-discrimination legislation; and its reasoning also confirms that nationality requirements (i.e. provisions in an arbitration agreement whereby one or more members of the tribunal must be, or must not be, from an identified State) are valid.
