Thursday, 7 April 2011

Religious Tribunals and Discrimination Law

There is an interesting case which is wending its way to the Supreme Court at the moment which could have some interesting implications for Religiously based Tribunals in particular the Muslim Arbitration Tribunal (MAT) and the Jewish Beth Din Courts Both of these bodies, in addition to their undoubted religious decisions also provide Arbitration Services where their decisions can be registered under the Arbitration Act and then enforced by the ordinary Civil Courts. I have blogged about this previously 29 June 2009 and 3 February 2008

The case is that o
f Jivraj v Hashwani which has been before the High Court [2009] EWHC 1364 (Comm) and the Court of Appeal [2010] EWCA Civ 712

The case involved two businessmen who are Ismailis which is a sect of Islam best known by its leader the Aga Khan. They had entered into a business agreement and, as is common in such agreements there was a clause that required any dispute to be resolved by Arbitration rather than through the Courts. The Arbitration clause said that any dispute
"shall be referred to three arbitrators (acting by a majority) one to be appointed by each party and the third arbitrator to be the President of the H.H. Aga Khan National Council for the United Kingdom for the time being. All arbitrators shall be respected members of the Ismaili community and holders of high office within the community."

When the parties eventually fell out one of them argued that the Arbitration clause was invalid because it constituted unlawful religious discrimination in employment. The question for the court was whether an Arbitrator is an Employee for the purposes of Discrimination law because if he/she is then any Arbitration clause or procedure which requires the Arbitrator to be a practicing member of a religion such as an Iman or a Rabbi is unlawful and any Arbitration decision unenforceable.

The High Court decided that an Arbitrator is not an Employee and therefore Discrimination Law does not apply whilst the Court of Appeal decided that an Arbitrator is an Employee and therefore it is illegal to require the Arbitrator to be a practicing member of any religion.

Since the decision is going to be appealed to the Supreme Court I will await with interest its decision which could be of quite significant importance in the always vexed question of the growth in Sharia Courts or Tribunals in Britain

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