Adjudication without Frontiers
Edited by Horatia Muir Watt, Lucia Bíziková, Agatha Brandão de Oliveira and Diego P. Fernandez Arroyo
Chapter 9: Arbitration and religion: Jivraj v. Hashwani
Are arbitrators employees for the purpose of the Employment Equality (Religion or Belief) Regulations, 2003? This is an unlikely question to open a debate about the role of religious norms in the global sphere! Yet it arose in the context of an international commercial contract with a religious arbitration clause, triggering controversy not only within the arbitration community (which feared the potential fiscal and other consequences of a legal characterisation of arbitration as employment) but also far beyond. In a world where religious norms are gaining (or regaining) increasing prominence, how exactly do our multiple belief systems fit with global economic governance by contract? The case arises from a joint venture agreement between Mr. Jivraj and Mr. Hashwani, that contained the controversial arbitration clause. It provided that any dispute between the parties should be resolved by arbitration before three arbitrators, all of whom should be ‘respected members of the Ismaili community’ (a religious community comprised of Shia Ismaili Muslims). The parties terminated their joint venture agreement in 1988 (seven years after its inception) and appointed three Ismaili arbitrators to assist them in dividing the joint venture assets. However, as the panel was unable to resolve all the issues between the parties, they remained in dispute for some years. In 2008, Mr. Hashwani initiated another arbitration and appointed Sir Anthony Colman as an arbitrator, despite the fact that he was not a member of the Ismaili community.
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