Do Human Rights Codes Apply to the Appointment of Arbitrators?
The Supreme Court of the United Kingdom recently had to decide if a private commercial arbitration agreement could specify the religion of the arbitrator. The lower courts had gone in different directions. The trial court said that was not a problem. The Court of Appeal held that such a provision violated equality laws in the UK by requiring discrimination on the basis of religion.
In Jivraj v Hashwani [2011] UKSC 40, the Supreme Court said that arbitrators were not employees and the parties could properly (and enforceably) agree to prescribe their religion, nationality or other characteristics that would normally be prohibited grounds of discrimination. In addition, it held, obiter perhaps, that these characteristics might be a bona fide occupational qualification for arbitrators for particular disputes.
Would and should a Canadian court come to the same conclusion? We have human rights codes and the Charter, which has to be applied to court actions even involving private matters (roughly stated). When we were preparing uniform legislation to implement the United Nations Model Law on International Commercial Arbitration in Canada, we wrestled with the provisions that contemplated specifying the nationality of the arbitrator. Though this is a natural inclination in an international dispute – do you trust an arbitrator who shares the nationality of the other party? – it was not clear that we could spell that out in a statute.
The UK case gives some comfort that such a provision would be acceptable in law. My own view is that this is a good result. A case comment that agrees (and gives more background to the dispute and its legal history) is here.
I wonder, however, whether the decision would be equally easy if the clause in question did not specify but excluded, or if it specified (or excluded) people on grounds less clearly relevant to the dispute that nationality in an international dispute or religion in the particular circumstances of the Jivraj case. Is there a bright line test to apply, or must decisions be made case by case?
I do not in principal have any objection to like-minded individuals agreeing to resolve their differences with the assistance of an agreed upon mediator of any particular persuasion.
That said, I do think there is a slippery slope from that kind of innocuous ideological mediation to systemic exclusion of marginalised groups from full economic participation in the greater society. To me, the issue is the unqualified and informed consent of all affected parties.
Let’s suppose for a moment that a dispute arises between two businessmen out of an agreement among a congregation to exercise discretion in favour of parties that attend the same church, one party having failed to comply. In such a dispute, although the litigants are of the same faith, it is the rights of a third party who is not a member of the same faith that are ultimately affected by the outcome.
Next, let’s imagine a dispute between members of different faiths where the agreement was documented by the more powerful litigant and imposes a mandatory mediation clause requiring the mediator to be of a specific faith (similar to specifying the governing jurisdiction clause that most agreements now contain). The less powerful party may not have had any option but to agree to the clause or forfeit the agreement.
We need to be careful about the kinds of ADR to which we lend quasi-judicial powers, or we risk blurring the lines between church and state.