The UK Supreme Court has granted the parties permission to appeal against the Court of Appeal's decision in Nurdin Jivraj v Sadruddin Hashwani [2010] EWCA Civ 712.

In June 2010, the Court of Appeal held that arbitrators are employees for the purposes of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660), and that the requirement in the arbitration clause for the arbitrator to be a member of the Ismaili community was unlawful. The Court of Appeal also held that part of the arbitration clause could not be severed to leave the rest of the arbitration clause intact. (For further discussion, see Legal update, Arbitrators are employees for the purposes of religion and belief discrimination.)

The decision generated considerable debate within the arbitration community. In particular, there is widespread concern that the decision applies to arbitration agreements which place restrictions on the nationality of individuals who may be appointed as arbitrators. This includes agreements which incorporate institutional rules, such as the ICC and LCIA Rules, that contain nationality provisions.

Both parties applied for permission to appeal to the Supreme Court, with the ICC and LCIA intervening in support of the permission application. Angeline Welsh, senior associate at Allen & Overy LLP, commented: "By giving permission, the Supreme Court has recognised the importance of the issues in this case. The outcome of this appeal will provide much needed clarity and certainty for the international business community." Angeline is acting for the ICC, which intends to apply for permission to intervene in the appeal itself.

We understand from the Supreme Court that the appeal is expected to be heard in late 2011.

Source: Supreme Court.