Abstract

This article studies religious arbitration from the perspective of global legal pluralism, which embraces both normative plurality and cultural diversity. In this context, the article considers that UK arbitration law regulates both commercial and religious arbitration while relying on a monist conception of arbitration. It further identifies two intertwined issues regarding cultural diversity, which find their source in this monist conception. Firstly, through the study of Jivraj v. Hashwani ([2011] UKSC 40), this article shows that the governance of religious arbitration may generate a conflict between arbitration law and equality law, the avoidance of which can require sacrificing the objectives of one or the other branch of law. The Jivraj case concerned an Ismaili arbitration clause, requiring that all arbitrators be Ismaili—a clause valid under arbitration law but potentially not under employment-equality law. To avoid such conflict, the Supreme Court reduced the scope of employment-equality law, thereby excluding self-employed persons. Secondly, based on cultural studies of law, this article shows that the conception of arbitration underlying UK arbitration law is ill-suited to make sense of Ismaili arbitration. In view of these two issues, this article argues that UK arbitration law acknowledges normative multiplicity but fails to embrace the cultural diversity entangled therewith.

Highlights

  • In the United Kingdom (UK), as in most states, arbitration is recognised under state law as an alternative dispute resolution process, where the parties are free to apply the rules they choose, to have their disputes decided on by arbitrators they designate, and according to a procedure that they expressly agree on, as long as they respect mandatory provisions and public policy

  • Arbitration can be assessed with regard to the ability of state law to recognize ‘the diversity of traditions, beliefs, histories, and cultures that make up human societies.’2 In this regard, according to global legal pluralism, the state conception of arbitration must ‘allow for dialogue and cooperation under conditions of diversity.’3

  • The following part of this article addresses the first issue related to the uniform conception of arbitration under UK arbitration law, 12 When, in 2010, the 2003 Regulations were incorporated into the Equality Act, which concerns religious discrimination and any discrimination based on, for example, gender, race, disability, or sexual orientation, the exclusion of self-employed persons from the scope of protection of employment-equality law was extended to other discriminatory criteria than religion

Read more

Summary

Introduction

In the United Kingdom (UK), as in most states, arbitration is recognised under state law as an alternative dispute resolution process, where the parties are free to apply the rules they choose, to have their disputes decided on by arbitrators they designate, and according to a procedure that they expressly agree on, as long as they respect mandatory provisions and public policy. The following part of this article addresses the first issue related to the uniform conception of arbitration under UK arbitration law, 12 When, in 2010, the 2003 Regulations were incorporated into the Equality Act, which concerns religious discrimination and any discrimination based on, for example, gender, race, disability, or sexual orientation, the exclusion of self-employed persons from the scope of protection of employment-equality law was extended to other discriminatory criteria than religion. Namely the possibility of conflict with equality law when religious arbitration is concerned It summarises the Jivraj case, while highlighting the fact that the Supreme Court’s decision reduced the scope of protection of employment-equality law to avoid a conflict with arbitration law, and that this was due to the legal conception of arbitration (Section 2). It will further highlight that this situation is due to the monist conception of arbitration under arbitration law, which is to apply to both religious and non-religious arbitration (Section 2.3)

The Dispute
The Supreme Court Decision
An Assessment of the Courts’ Decisions
A Culturalist Analysis of Arbitration Law
Cultural Context
UK Arbitration Law
A Conception of Arbitration in Line with the Cultural Context
Ismaili Arbitration
Hybrid Worldviews
A Resolution of Conflicts for the Peace of the Ismaili Community
Concluding Reflections
Full Text
Published version (Free)

Talk to us

Join us for a 30 min session where you can share your feedback and ask us any queries you have

Schedule a call