The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom

24 Pages Posted: 7 Jan 2025

See all articles by Sandrine Brachotte

Sandrine Brachotte

SciencesPo - Sciences po Paris Law School; UCLouvain

Date Written: May 26, 2021

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.

Keywords: global legal pluralism, cultural studies of law, religious arbitration, multiculturalism, equality rights

Suggested Citation

Brachotte, Sandrine, The Limits of Arbitration Law in Addressing Cultural Diversity: The Example of Ismaili Arbitration in the United Kingdom (May 26, 2021). Available at SSRN: https://ssrn.com/abstract=5065685 or http://dx.doi.org/10.2139/ssrn.5065685

Sandrine Brachotte (Contact Author)

SciencesPo - Sciences po Paris Law School ( email )

13 rue de l'université
Paris, 75007
France

UCLouvain ( email )

Brussels, 1000

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