Commentary An Arbitrator Based On Rell By Uz Wits and Ben Morris (itr ote Lie Willams i « Profesional Support Lawyer and Ben Mors is Trainee Salton the Insertional Avbination prac group ef Bakr ‘Melencie LLP Copyighe 2010 by Liz Wiliams ond Bon Mori. Replat ths commentary ee wrkome | Contracting parties who share the same sigious Il often wich to have thee contact governed by the elgous le of thelr conumuniy, Yet mater sand, # regis lw ino aceepeed under English onic of lowe ruler a valid governing aw for che Purposes of contact coe flew nue Rather, thelaws ofa ecognied vert ety muscbecho- Seo. Hower contesing pares sometimes smpt to approsinat the eft ofa choir af igus le by suming her disputes vo ebieaters from che relevent eligiour community in the expecston that dose abiratrs wil decide the dpe i ac ‘cordance with elgou la at last the exe chat omen hw doet not poskivelypochbi them om doing. lowes, athe recent Cour of Appel ct of Hah son» Jj anabiationasemene tat eguled ‘member ofan ariraton reba abe dwn fom 1 parila relgour group was held by the nr 0 Teach ant-daciminationlegiation, tod therefore robe inal ‘Tae case demonsrts the limitations that may be Imposed on partie freedom of cones where hate putes expel ry o replat ther contretual oy Trion in acondance with their eigious Belief. Documentation ‘& Research Department International Court of Arbitration — A Barrier To The Appointment Of us Belief? However theese au ofr some guidance, i the conext of atbtation agreement, a to bow putes, faa word sick chases 0 maximize the probably of hie dpuce being determined ins manner thi ie Consent with chi lige belie The Facts Mr Hashwani and Me Jes) entered into 2 joint vencure agreement in 1981 for investment in re ‘este. The depute raoluon dau inthe agreement pide that ay dope ating berween de pares ‘would be referred opel of thee arbieatos “one tebe spoined by ech party athe thind ebay os beth Presdnt of the HH ga Khon National Conc forthe United Kingdom for te tine bing? The Cou ‘lisan insaion of the lami Malin comrni tnd the clause farther sated that he arbitra mt be member ofthat commun. 1 1988, the pares dca to teint thee ve. ture, and a conllition panel componed of three ‘members ofthe smal community wat setup oat in diving she ase ofthe vente, Ceralo macess senainedunreaied, and flowing an uneieceril silo aberaon, dhe mater remained dormant or Sometime Is Jly 2008 Me Haslivan contaced Mr Jit) witha claim for almost 1.5m pls intrest and ‘tthe same ime pupoced 0 appolaa nota subirazor The rexwon for his choice wae noe mae dee Mri espond by ecing a decarton frm the ‘Commercial Cure in London that he appoinament 2va 25,98 gus 2010, ofthe abitetas invalid ashe was mors member Of the Ismail community, Me Hasan counter~ flamed fori ner to appoin his chose arbicator fs ole bratnon she ass that the rhuaon leu ol the one venture agreement had ben ‘Ered invalid bythe Employmene Equal (Religion fr Bale) Repulations 2003" (the “Regalatons) “The Regulations me ualel for an employers Aesiminate onthe Bass of tligon or belle, expe ‘whore there 3 gsnaine occupational equrement Fore employ to hold a spabe ble. he judge tes: instance bel, amongee other finding, tha ‘he Regulains did not app v0 the appointment fabian beau hey wete nor employees, and isin the claim, He abo expresed the view that, ven dhe Regulations wer applicable, the erent {lee would fill within the occupational eqirenent ‘ception. Me Hashwani was sebsequenty granted Tene to appeal othe Cour of Appeal ‘The Employment Equality (Religion Or Belief) Regulations 2003 The Regulations wer ieraduced in Dace 2008, to ghe efecto Councll Direcive (EC) 200 tthich erable a general amewor for equal es Inent in employment and oecpason. The Regul lon si alngsde other UK leglation designed 0 prevent dicrination in employment and cups on or example, on grounds of rae, gender, 2g ul ienraton or dil) and dope a simi ‘ery bread defiton ofemploymen which includes nat primal do or” ‘Under repuation 60), tun fora employer to dictimieate guns person on the grounds of religion ot bli among ater mares the a ‘agement emake for he purposes of demining Co whom he should oer employment orb efisng, {oor or dlbentely nt ferng, employmeas 103 pron on thee grounds Regulation 7, however, provide an exempion we nemployr basen ee bated om eign or bli nd eoldering that ehov and the atte oF context OF the employment "being of pariulr religion ori rine sgt The Arbitrator As Employee Giving the jadgmentcf the Court of Appeal Moore- 2” an epet Bick L] se tine tothe quertion of whether ebitcator could be considera an “employee for the purposes of the Regulations. The judge agreed ‘vith the submissions of Mr Hashwani thatthe Regulations were inendd to apply al forms of tmployment in the broadest sens, and therefore Saher «prion appointed another act sabi tor sonact for mork would exe der which the bttaor wos "emplned” The judge noted that tres not necesay inthe presen apeal to examine racy when and how thae comtact comes Into exience. Arbitration re damental on a" rel coma" beeen the pate, nd een io the Cov of members ofthe Lal community (who do ovseck or cep emuneraton foracing as abit on) it would not be dial to identify suflent omideationbecween the parts t0 support a com tence? Since a bate contacts do wok pe ‘onal, th provision of i serves fal within the ‘Eebiton of “omplment forthe purposes of the Reguloions, and therefore person who appoints him would be an “ple” thin she meaning of regulation 6(D) Would The Selection Of An Arbitrator In Iecordance With The Arbitration Clause Be In Breach Of The Regulations? Moore Bick 1 noted dat the word “erangemens in eglation 61 had Been oerpeted widely by the courts He held thar a aebisation agreement Conse “atangements” made bythe pris For {he appoiniment of one or more ableators and [Scpendng ons terms, may resiee the clas of Subitacrs to whom they able wo oer employment. Turhermore the judge stated tha the ebisation Clause requited the pats eo cise, or deliberaty ‘mito fr employment to aay pesan who snot {Tener ofthe lea communiny. Acasein whe. Se purely cious grounds,» penoa deliberately ‘rots offering wort a pean he considers capable tf doing i would come within Regulation (1. “Therefore, comply with the terms ofthe arbi tion cause would be contrary 0 the Regulations. The euiment under the abizatin clase for an ssbitator co bes member of the [small communi Srould therefore be wid unas I ould be brought ‘within elton 7." Genuine Occupational Requirement Tn determining whether eegulation 7 made theabluation clase lawl, the judge looked atthe ‘question of whether being = member of hela Community wasa gomine cupationl enim” Foran atbitrson glen the ehor ofthe lal com ‘munity and dhe nate of de arbiextorsFuncon He beld thas the arbicracors function under the ssbieaton cause was to determine the dispute be veer he pare in accordance withthe principles of Engl law. He indiarad eat, had the paren empowered the Tibunal to act aout bona™ Te might have been possible to show that only an Ismail who would undewnd the mor paces of the lem community, coulé full this ol However as weiten, the abiation clause only required an stb t have an understanding English law andthe ail 4 conduc the process fay The acbrationsgremene did novell for any paicular eos, and therefore membership af she lal community was clay not necessary for the dschatge of che stbieators Functions. Ac Cordngy the reauirement thatthe abitetors be members ofthe Ismall community dd not come Within he eoelton 7 exemption an, aco tote severe rom de ret of the cba cae, the arieation agcement between the parties wat held to be void! Nether party therefore achieved the outcome he waned — Je} had the ence ssbiraton cause invalidated rather than mes the Zppointmene ofthe non lama abies and Me Hishwant fled co secure the appointment of that srbiravor assole rbtator The pts were lf co pure thee dispre through the oninary courte Should they wish wo do so Is It Possible To Appoint An Ar On Religious Belief? While the decilon ofthe Court of Appeal may be considers contoversil, the effet of the decison is thats simple statement by the paces that an sebirtor must hold «specified religious bli Unley to be upheld by the cours Te sppears sha, in onder not ofall foul of the Regulations, such 3 requirement in an atbcaionsprement should be jst in the ex of the agremenc by inking Ie foram expres requirement for ‘en ethos bed on gio r bl noes vo igs the exemption in regulation 7 The Engl cours have alteady ecg sede In the as of Halper and another» Halp- frm and oer (or 1&2)" tha the partes may ‘pire wbitatrs to take religious conidetons trator Based (eg. Jewish custom, as ia she Halpern cate) nto sscoune in addon to lea principles. Moore-Bick 1 provided an example of what may be sliient hes he stated that ad che arbitstionapreement ‘empovtered che altos to acto au e bone, this might have been enough ro jus the eequte- ‘ment that an arbor be an lama, Homes, it tay be preferable tobe more explicit, For instance, the arbiuation agreement could require the abies torto incerpret English arication la and condsct, ‘he arbiraton “a far spasm accordance with ‘he practice aed bli ofthe nal community and ‘abled Imai arbirtion practies” oreo words, This would make i Wkly thatthe pool of sbizaors wth che elite understanding of Eng Th lave abiracon sland cultural and eligi knowledge would be amor ently composed of embers ofthe Iomaili community, whether or noe this as explcly seated at a requirement. IF beship was ot made an explierequirement, thie would cheoreticlly allow 4 non-lemal with relevant knowledge and experi ofthe Ista community act ss arbtrstor Leaving his option open would further increase the ikeinood that the tleuse would norbe considered dsriminaony, and nay wel be acceptable where the wndetying pu pose i no so resit appointments tothe Tema fommanity but simply to achieve «resolution of the disput s fr a posi in accordance with ‘mali religious laws, Nonechelas, where parties do onside ie gennelynecesry forthe aerator bean Ismall egulation 7 combined with wording slong the lines sex ou above nay wel alow ters lempooe such a equitement. Conclusion Hashwani Jivsj shows the extent to which sntidiscriminaio legion can reach in whit Would typially be ehought of ax private choices tnd render them valid. However, the Regula ‘ions cited inthe case, most notably sepuation 7, do show thas the intention ofthe legislators Is aot ‘0 deny people the right to conduct cheirafaire ln accordance wih their religions belief. Where Te Isa genuine requirement that an employee is fiom «purccult eigon, the Regulations wll not prevent this and in such acase I i importane for {he parties to make ths requirement clear in thee agicement at a inherent part ofthe task re pedorme. avo 2548 esses tration! ArieationRoprt Endnotes 7. Regulon 61g 20031660, 1. See eg: Haj an anther» Halpern end ote 8. Rapala n 73) $1 208/160, (nF 2) oT} EWA Ci 291 (24) pr Waker 9 ADS 4 2. anol EWCAC712, we. atta 4 sizs/a, 12, Injures pot i on 23) 100360. 3. (291 0 and 34 6 Regn i) St 201160. 14.2007] EWCACH251.0