Judgment was given by the Supreme Court in the case of Jivraj v Hashwani  UKSC 40, arising out of a claim that a term in an international commercial arbitration agreement, which provides that all arbitrators must be members of the Ismaili community, was void because it was unlawful religious discrimination. The main issue was whether an arbitrator is "employed," as defined in the Employment Equality (Religion or Belief) Regulations 2003, which implemented Council Directive 2000/78. Several interveners were concerned that if arbitrators are "employees" for the purposes of UK employment discrimination law, terms requiring arbitrators to be, or not to be, of a particular nationality could also be void.
The Supreme Court has ruled that arbitrators are not "employees" under UK employment discrimination law. The specification of the religion of arbitrators was not, therefore, unlawful discrimination. The Court also held that, in the circumstances of the case, the term would in any event have fallen within the genuine occupational requirement exception. The Supreme Court decided that a reference to the ECJ was unnecessary as to the scope of Council Directive 2000/78.
Christopher McCrudden appeared as Junior Counsel for the London Court of International Arbitration, interveners.