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Jivraj v Hashwani
''Jivraj v Hashwani'' () UKSC 40 is a United Kingdom labour law case concerning the scope of employment. Considering European labour law cases and the purpose of discrimination legislation, it held that it was legitimate to select a person of a particular religion to be an arbitrator, here an Ismaili.
==Facts==
Jivraj and Hashwani started a property investment joint venture in 1981, with a term that disputes should go to three arbitrators, one appointed by each, and all from the Ismaili community. In 1988 it was terminated, and some assets divided. In 2008, Jivraj’s solicitors wrote claiming more payment and requesting an arbitrator, but identifying a preferred non-Ismaili arbitrator. Hashwani said this was invalid, but Jivraj argued that the Ismaili requirement was contrary to EERBR 2003 r 6(1) and Directive 2000/78/EC art 3.
The Judge held EERBR 2003 did not apply to arbitrators, but even if it did, it would be a genuine occupational requirement under EERBR 2003 r 7. The Court of Appeal, Moore-Bick LJ for Aikens LJ and Buxton LJ, held an arbitrator appointment was a contract for provision of services, and ‘a contract personally to do any work’ which satisfied the definition of ‘employment in EERBR 2003 r 2(3), and that a party appointing an arbitrator was an ‘employer’ under r 6(1). Thus, restricting to Ismaili’s was contrary to r 6(1)(a)(c) and the exception in r 7 did not apply because being Ismaili was unnecessary for discharging an arbitrator’s functions. Because this would make the whole agreement substantially different the arbitration clause as a whole was void under EERBR 2003 Sch 4, para 1(1).
Laurence Rabinowitz QC, Christopher Style QC and Christopher McCrudden intervened for the London Court of International Arbitration. Thomas Linden QC, Toby Landau QC, Paul Key and David Craig intervened for the International Chamber of Commerce. Rabinder Singh QC and Aileen McColgan intervened with written submissions for the His Highness Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board.
抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』
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