There has been a widespread sigh of relief following the Supreme Court's ruling from all those involved in arbitration with a connection to the UK. The Supreme Court judgment removes the uncertainty created by the Court of Appeal's previous finding that the Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660) (the Regulations) rendered void an arbitration agreement providing for the appointment of arbitrators from a particular religious community (see Legal update, Arbitrators are employees for the purposes of religion and belief discrimination). The Court of Appeal's decision had given rise to concerns that provisions contained in certain institutional rules (such as the ICC and LCIA) which restrict the nationality of arbitrators, might similarly fall foul of anti-discrimination legislation, rendering arbitration agreements incorporating such rules void.

The Supreme Court's ruling makes it clear that this is not the case, and marks a welcome return to "business as usual" for those involved in arbitration in the UK. There is no longer a doubt as to whether nationality requirements in arbitration agreements render entire arbitration agreements void, and no need to carve out nationality requirements from arbitration agreements.

The comments of the majority of the Supreme Court regarding the application of the "genuine occupational requirement" also demonstrate an understanding of the party-led, consensual nature of arbitration which has been welcomed by arbitration practitioners. This allows parties to have their disputes resolved in a way that takes into account specific ethical or cultural nuances, which it may not be possible to accommodate in national court litigation. Importantly, the ruling also recognises the importance of party autonomy in selecting an arbitral tribunal to hear a dispute and the need for the arbitration process to deliver a procedure in which the parties can have confidence.

It is also significant that the Supreme Court did not feel it necessary to make any reference to the European Court of Justice as to whether, as a matter of EU law, arbitrators are "employees". The Supreme Court took the view that European case law on this issue was sufficiently clear. It is therefore hoped that this ruling represents the final word on the matter. As the Regulations in issue are based on a European Directive, there is at least a possibility that similar issues could be raised in other European jurisdictions. However, both the underlying Directive (2000/78/EC) at issue in Jivraj and the EU Race Directive (2000/43/EC) expressly exclude nationality, so any such claim would have to be on the basis of discrimination on grounds other than nationality. Furthermore, given that the Supreme Court based their analysis heavily on the wording of the underlying EU Directive (not just the UK implementing Regulations) and European case law, it is hoped that any other European domestic court bound by the European authorities would reach the same conclusion, and if so, this issue has been finally put to rest.

For more detail on this case, see Legal update, Jivraj v Hashwani: Supreme Court allows appeal.