This is the story of a Norman King and a non-Ismaili arbitrator. Edward I, King of England and (soi-disant) King of France, fought the English, the French, the Scots, the Saracens and, of relevance here, the Welsh. His Queen, Eleanor of Castile, his constant companion, attended his victory ceremony at Caernarfon Castle in North Wales. There, in 1301, Edward I required the defeated Welsh chieftains to pay him homage as their feudal lord. They reluctantly agreed to do so, if he could provide them with a Welsh-born prince as an intermediary who could speak neither English nor French, innocently expecting that the king would of necessity appoint one of them, a Welsh chieftain who could protect old Welsh customs and traditions.

They were to be much disappointed. Queen Eleanor had given birth at Caernarfon; and so Edward I produced, as the first Prince of Wales, his threeday old son and heir, who could speak neither English nor French.1 There is a universal law of unintended consequences in the exercise of discrimination, including legal rules outlawing discrimination on grounds of language and nationality. It applies to arbitrators as much as princes; and it applies not only to Wales.

The story of the non-Ismaili arbitrator begins with the judgment of the Court of Appeal of England and Wales on 22 June 2010 in Jivraj v. Hashwani [2010] EWCA Civ. 712, partially setting aside the judgment of Steel J. in [2009] EWHC 1364. It is a judgment that has caused serious concern in the United Kingdom but increasingly also in other member states of the European Union. It may not be a purely English concern concerning the English Arbitration Act 1996. In this case, the Court of Appeal was required to address the question whether the parties to an arbitration agreement under English and EU law could lawfully decide that their arbitration tribunal must be drawn from members of a particular religious group only and, consequently, whether one party had validly appointed an arbitrator who was not religiously qualified. The case has nothing to do, directly, with any ground of discrimination other than religion.

In the Jivraj case, two commercial parties to a joint venture contract, who were both Ismaili, had agreed, as part of their ad hoc arbitration clause providing for London arbitration, that: "All arbitrators shall be respected members of the Ismaili community and holders of high office within the community."2 This wording was treated as requiring Ismaili arbitrators, a religious requirement not satisfied by a non-Ismaili. It is an important feature of the case that, under the parties' contract, the substantive law applicable to the merits of their dispute was English law and not a religious law or non-legal rules, such as ex aequo et bono. It is also significant that, under the parties' arbitration agreement, with its express reference to an arbitral seat in London and the consequential application of the 1996 Act, any arbitrator must be impartial and act fairly and impartially as between the parties, in accordance with mandatory rules of English law (Sections 24(1) and 33(1) of the 1996 Act). Without these features, the case might have been decided differently.

Instead, the Court of Appeal decided that the parties' arbitration agreement was entirely void under the Employment Equality (Religion and Belief) Regulations 2003, implementing EU Directive 2000/78/EC. This EU Directive establishes a general framework for equal treatment in employment and occupation within the European Union and is intended to preclude discrimination on grounds of religion or belief, disability, age and sexual orientation. (Neither the Regulations nor the Directive address discrimination based on nationality or national origins.) The Court of Appeal decided that, for the purpose of applying the 2003 Regulations, an arbitrator was to be treated as an 'employee', that the case did not fall under any of the exceptions to the Regulations, that part of the arbitration agreement therefore violated the prohibition on religious discrimination in the Regulations and, given the invalidity of this important part of the arbitration agreement, that there could be no severance and that the entire arbitration agreement was thus invalid under English law. All this left the parties to sue each other in a national court of competent jurisdiction, i.e. the High Court of England and Wales, leading to a public trial before a state judge not of the parties' choosing, who would be neither a co-religionist nor an arbitrator, all of which the two parties had manifestly agreed to avoid.

The decision of the Court of Appeal surprised many at the time, particularly with the long-standing use in England of the Beth Din (the Chief Rabbi's Court) and the Sharia tribunals recognized in the travaux of the 1996 Act. These tribunals apply Jewish and Sharia law, not English substantive law; and that is the reason why the Court of Appeal regarded the Jivraj case as materially different. It may make objective sense to require all arbitrators to be senior scholars or true believers in order to apply Jewish or Sharia law, but what is the objective good sense, it was asked, in requiring an arbitrator to be an Ismaili in order to apply English substantive law to the merits of the parties' commercial dispute, particularly when such an arbitrator is already required by English law to act impartially towards all parties?

As from 22 June 2010, the Court of Appeal's judgment is the law of England and Wales. The judgment was unanimous. Two of the three members of the Court of Appeal are experienced commercial judges familiar with international arbitration (moore-Bick LJ and Aikens LJ), and the third member was an experienced public law specialist (Sir Richard Buxton). on 22 November 2010, the United Kingdom's Supreme Court granted both parties permission to appeal. on 18 February 2011, the Supreme Court also granted permission to the ICC and the LCIA to intervene in the appeal, later joined by a third intervener in the form of HH Prince Aga Khan Shia Imami Ismaili International Conciliation and Arbitration Board (representing the appointing authority under the arbitration agreement). The appeal was heard by the Supreme Court on 6 and 7 April 2011. The parties, the interveners and the legal community currently await the Supreme Court's judgment with anticipation. much may turn on this judgment, not only for the appellants but also more generally for other interests in the fields of arbitration and human rights.

Under the British legal system, it is axiomatic that the Supreme Court can decide almost anything. ordinarily, no English lawyer can safely predict how a particular case will be decided, as distinct from how it should be decided. In this case, however, the Supreme Court is subject to the Court of Justice of the European Union (ECJ) as regards the interpretation of the Directive, and the possibility of a reference to Luxembourg under Article 267 of the Treaty on the Functioning of the European Union (TFEU) adds an additional layer of uncertainty and delay. Such a reference has been conditionally requested by mr Jivraj. In any event, even if the Supreme Court were to decide that the arbitration agreement was entirely valid (with or without a reference), it would be a legal precedent limited to the issue of religious discrimination in an ad hoc arbitration and would not directly affect the current discrimination on grounds of nationality widely practised by arbitral institutions located in the European Union. Thus, whatever the Supreme Court decides, the debate may well continue in England and elsewhere as to discrimination based on nationality, both in arbitration rules (such as UNCITRAL, ICC, SCC and LCIA) and international treaties, including both the ICSID Convention and bilateral investment treaties concluded by many EU member states. As Serge Lazareff has rightly concluded as regards the Jivraj case: "Nul ne sait où s'arrête l'onde de choc causée par un pavé jeté au milieu d'un lac…".3

It is first necessary to explain why this case caused such immediate concerns in England, particularly within the LCIA and ICC UK, the ICC's National Committee, to the extent that both ICC and the LCIA decided to intervene in the appeal before the Supreme Court, albeit in a markedly one-sided manner in support of mr Jivraj. There are, it seems, three principal reasons.

First, given the judicial approach in the Jivraj case, the legal assimilation between religious and nationality discrimination is at least problematic given the current rules of the ICC and, in particular, the LCIA, under English and EU law. Immediately following the Court of Appeal's judgment, many English practitioners began to advise their clients not to agree to LCIA or ICC arbitration in England and, if agreed, to delete the nationality restrictions in these arbitration rules. Later, the ICC Court announced that it would no longer require ICC UK to nominate only citizens of the United Kingdom and that it would also decline to fix London as the place of arbitration where no place had been chosen by parties under Article 14 of the ICC Rules. Conversely, the LCIA announced that it would not be "panicked" into suspending or amending the questionable part of its arbitration rules,4 a decision probably influenced by concerns that any sign of change would weaken its intervention before the Supreme Court. It is of course hard to argue for a fundamental legal principle when any problem regarding that principle can be resolved by a relatively minor change in the wording of the relevant rules.

Second, following the judgment of the Court of Appeal, the United Kingdom brought into effect the Equality Act 2010 as from 1 october 2010. It is largely (but not entirely) a statute consolidating English and EU legislation prohibiting many different forms of discrimination. In this context, it repealed but then immediately re-enacted the 2003 Regulations. The 2010 Act is also a statute of immense historical significance and scope. Among other provisions, it equates direct discrimination on the basis of nationality with racial discrimination, as both a civil wrong and a criminal offence under English law.5 This controversial statute is too long and complex to address here:it is sufficient to state that no English lawyer can yet safely conclude that an arbitral institution in England is free from civil or criminal liability under the 2010 Act when it appoints or rejects an arbitral candidate on the basis of discrimination based directly on nationality. The 2010 Act even caused the garrick Club in London to reform its rules to permit women guests to sit at the 'club table', a revolutionary development much resented by many of its more traditional but law-abiding members.6

Third, the consequences of unlawful discrimination under the 2010 Act on the ground of nationality in an arbitration agreement providing for arbitration in England or governed by English law may include: (i) the invalidity of the whole arbitration agreement under English law without any severance (as was decided in the Jivraj case); and also (ii) the non-enforceability of any resulting arbitration award, under the 1996 Act, in England and, under the New york Convention, overseas. This is the conclusion reached by several legal commentators, including Laurence Rabinowitz QC, who, as counsel, represented the LCIA before the Supreme Court in the Jivraj appeal.7 This risk applies to extant arbitration agreements made both before and after 1 october 2010 and also to awards made and still to be made under such arbitration agreements.

However, it is necessary to examine the Jivraj case further, both as to what the Court of Appeal did and did not decide and as to what the Supreme Court can and might decide. At the outset, however, it is difficult to understand how the arbitrator was invited to accept his appointment in the Jivraj case. He is an experienced arbitrator and, until his retirement, one of the most respected commercial judges of the High Court in London. He is not a member of the Ismaili community, and he has never held high office within that community. moreover, many years ago as counsel, he had successfully challenged the appointment of one of his senior colleagues at the Commercial Bar purporting to act as an umpire under an arbitration clause requiring the arbitrators and umpire to be "commercial men and not lawyers".8 In that case, the High Court found that the umpire had not seen the clause before his appointment, acting "in complete good faith". In the Jivraj case, it can likewise be assumed that the arbitrator was somehow not shown the arbitration agreement.

As already indicated, the Jivraj case does not directly raise any issues other than religious discrimination against an arbitrator under the 2003 Regulations enacting the Directive. Under Regulation 2(3), the issue is not whether an arbitrator is an employee of one or more of parties, but whether an arbitrator is to be treated as an 'employee' as defined in the Regulations and Directive.9 This distinction seems to have been missed by several commentators who ignore the legislative treatment as 'employees' of persons who are clearly not otherwise employees acting under a contract of employment. Arbitrators are not, of course, employees in any ordinary sense. However, the Jivraj case concerns an ad hoc arbitration; the legal position of an arbitrator appointed and supervised by an arbitral institution, under a multi-party contract involving the institution, the parties and the arbitrator(s) under institutional rules, may be significantly different; and, in some jurisdictions, such an arbitrator may resemble in practice more closely an employee than a fully independent professional person.10

The first question, therefore, is whether an arbitrator satisfies the broad definition in the 2003 Regulations as a person under "a contract personally to do any work". It may be that an arbitrator has a legal status only and does not work under any contract, or it may be that an arbitrator can have both a status and work under a contract (as does an agent under English law with duties sounding both in contract and status).11 That an arbitrator has to work personally (without delegation) is not in doubt. It is a paradox in the Jivraj case that Ismaili arbitrators traditionally work pro bono, without any fee from the parties (as mr Justice Steel noted in his judgment). Accordingly, because the arbitrator in question is a non-Ismaili and may be contractually entitled to an arbitral fee under the 1996 Act, it is possible that this arbitrator could be an 'employee' whereas his two Ismaili arbitral colleagues, if appointed under the arbitration agreement as pro bono arbitrators, might not be working under any contract and might therefore not be 'employees' at all.

The answer to this first question is unclear under the EU Directive, and may thus require a reference by the Supreme Court to the ECJ. Such a reference, if happily resolved, might assuage several of the immediate concerns arising from the Jivraj case, not only in England but also in other EU member states. In this non-Panglossian world, however, it is unlikely to do so; even if it did, it would likely leave other concerns unresolved.

The second question is whether the provision for religious qualification is a form of discrimination under Regulation 3(1) of the 2003 Regulations.12 It can hardly be doubted that the arbitration agreement is intended to discriminate against arbitrators not possessing the required religious qualifications, a classic form of discrimination. In England, at common law, it was held unlawful for an inn-keeper to discriminate against a guest on grounds of race; and it was held unlawful for the Jockey Club to discriminate against a woman horsetrainer on grounds of gender.13 Nonetheless, the common law proved woefully insufficient to prohibit anti-social discrimination, hence the promulgation of English legislation from the Race Relations Act 1965 to the current Equality Act 2010. For arbitrators, however, it is necessary to look back to Nazi germany. Under Article 1032(3) of the 1933 german Code of Civil Procedure (ZPo), non-Aryans could not be german arbitrators, an odious precedent terminated in 1945 and not repeated since in Europe.14 There is no question today that an arbitral candidate rejected on grounds of religion, race, gender or nationality is the object of discrimination, in England as elsewhere in the European Union.

The third question in the Jivraj case is whether such religious discrimination against an arbitrator can be justified in the particular circumstances of the case, as an exception for a genuine occupational requirement under Regulation 7(3).15 Not every form of discrimination is unlawful. As regards nationality discrimination, only English football players can play football for England; and for any major sporting match between England and Scotland it is necessary to engage a symbolically neutral referee from Wales or elsewhere. In the Jivraj case, the Court of Appeal was much influenced by the fact that the parties' dispute required the application of English law and not Sharia law in dismissing mr Jivraj's argument in favour of a genuine occupational requirement for an Ismaili arbitrator. It is questionable whether the Court of Appeal did not construe this legislative exception too narrowly. The implied choice of substantive law may not exhaust the legitimacy of parties for a coreligionist: it may equally be a question of cultural affinity for which arbitration is particularly appropriate. For example, the appointment of ICSID arbitrators can be subject to nationality discrimination under Articles 38 and 39 of the ICSID Convention, without their national laws being a relevant factor in their appointment to decide a dispute under international law under Article 42 of the Convention. on the other hand, it could hardly be decided by the Supreme Court that, because so much international commerce is still handled by men and not women, an exception allowing parties and arbitrtal institutions to agree to appoint only male arbitrators, who shared, the same masculine culture as the parties, could be justified under English and EU law.16

This question brings into sharp focus the particular forms of discrimination practised by arbitral institutions on grounds of nationality under their rules and the question whether and to what extent such discrimination is lawful under English and EU law.

Article 6(4) of the 1976 UNCITRAL Rules requires the appointing authority to "take into account" the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties; and Article 6(7) of the 2010 UNCITRAL Rules uses similar language. This may be regarded as a 'soft' form of discrimination, because it is applicable by the appointing authority as a matter of discretion in individual cases and not as a mandatory requirement for the exercise of discrimination in all cases.17 Article 13(5) of the Arbitration Rules of the Arbitration Institute of the SCC is likewise a form of 'soft' discretionary discrimination: "If the parties are of different nationalities, the sole arbitrator or the Chairperson of the Arbitral Tribunal shall be of a different nationality than the parties, unless the parties have agreed otherwise or unless deemed appropriate by the [Institute's] Board [of Directors]."

Articles 9(1) and 9(5) of the ICC Rules are a similar form of 'soft' discrimination. As regards co-arbitrators, the first rule requires the ICC Court to "consider" the arbitrator's nationality. As regards presiding or sole arbitrators, the second rule states:

"The sole arbitrator or the chairman of the Arbitral Tribunal shall be of a nationality other than those of the parties. However, in suitable circumstances and provided that neither of the parties objects within the time limit fixed by the Court, the sole arbitrator or the chairman of the Arbitral Tribunal may be chosen from a country of which any of the parties is a national."

These rules permit the ICC Court to exercise discretion in each individual case, although the parties' will, if expressed in a timely manner , is paramount as regards a sole or presiding arbitrator.

The LCIA Rules appear significantly different. Article 5.5 requires the LCIA Court to select arbitrators with "consideration", inter alia, for the nationality of the parties.18 This first provision is another 'soft' form of discretionary discrimination exercised for each arbitral appointment, However, Article 6.1 contains a blanket ban covering the appointment of all sole arbitrators and presiding arbitrators, subject only to the parties' joint agreement otherwise:

"Where the parties are of different nationalities, a sole arbitrator or chairman of the Arbitral Tribunal shall not have the same nationality as any party unless the parties who are not of the same nationality as the proposed appointee all agree in writing otherwise."19

Under Articles 6.2 and 6.3, as regards any party that is a legal person, this nationality provision is also applied to controlling shareholders or interests; any person (whether a party or an arbitral candidate) who is a citizen of two or more states is treated as a national of each state; and citizens of the European Union are treated as nationals of its different member states and not as having the same EU nationality. In practice, Article 6 has been extended by the LCIA to include within UK nationality parties and arbitrators from Crown Dependencies and overseas Territories, such as Bermuda, the British Virgin Islands, the Cayman Islands and gibraltar. This extended interpretation of 'nationality' is not obvious from the wording of Article 6 of the LCIA Rules.

In contrast to other arbitration rules, the LCIA Rules thus require a form of direct discrimination to be exercised in all cases, without the discretion permitted by the UNCITRAL Rules, the SCC Rules and the ICC Rules applicable to individual cases. It is hard now to understand how this difference came about. In 1998, the relevant wording of Article 6 of the LCIA Rules restated the text of Article 3.3 of the previous 1985 LCIA Rules, but the published commentary on the 1985 Rules is silent as regards nationality.20 Its introduction into the LCIA Rules was doubtless influenced by contemporaneous work on the 1985 UNCITRAL model Law and earlier experience with the 1976 UNCITRAL Arbitration Rules (i.e. Article 11(5) and Article 6 respectively). yet, the LCIA's blanket ban differs significantly from both these wordings, particularly Article 11(1) of the model Law, which provides that, unless otherwise agreed by the parties: "No person shall be precluded by reason of his nationality from acting as arbitrator." This provision originates, inter alia, from Article III of the 1961 European Convention on International Commercial Arbitration, in more positive language.21 Regrettably, no relevant travaux exist for the 1985 LCIA Rules owing to the destruction of its archives in the IRA bombing of the Baltic Exchange.

With the Jivraj case and the Equality Act 2010, the problem with Article 6.1 of the LCIA Rules, as currently drafted, is that it can operate disproportionately when applied (as it is) to all LCIA arbitrations without any differentiation between their particular characteristics and circumstances. In common with other arbitration rules, the LCIA Rules also fail to take account of significant changes in the traditional characteristics associated with the 'nationality' of an arbitrator, which no longer necessarily reflect the desired characteristics of symbolic neutrality, particularly in an arbitrator who is already required, under English law, to be impartial and to act impartially and fairly towards all parties. The LCIA could doubtless justify its nationality discrimination in many, if not most, individual cases; but it could hardly justify such discrimination in all cases. Its blanket ban, with all discretion removed, is the prima facie hallmark of disproportionate and therefore unjustifiable discrimination. As the late Lord Bingham concluded in his last great work: "The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation."22 That legal standard should not be lower for the arbitration rules of great institutions.

It is hardly necessary within the European Union to describe the sensitivity of discrimination on the grounds of nationality and national origin. It is rooted in the experiences of the inter-war period leading to the general prohibition of discrimination in Article 14 of the European Convention on Human Rights (ECHR). It also lies at the heart of the European Union, where EU citizens are protected from discrimination on the basis of nationality under the EU treaties, particularly Article 18 TFEU (ex Art 12 TEC), Article 45(2) TFEU (ex Art 39 TEC) and Article 56 TFEU (ex Art 49 TEC). Are EU arbitrators likely to be considered differently by the ECJ under these laws in deciding whether or not to permit discrimination between them on grounds of nationality by arbitral institutions located in Paris, Stockholm and London? It may be significant that the ECJ does not countenance such discrimination between its own judges. According to Article 18 of the ECJ's Statute: "A party may not apply for a change in the composition of the Court or one of the chambers on the grounds of either the nationality of a Judge or the absence from the Court or from the chamber of a Judge of the nationality of that party." It seems therefore unlikely to treat EU arbitrators differently.

In summary, the Jivraj case is a heavy stone cast in a large legal pond, with its immediate effects still unresolved and its long-term effects unknown, both in England and in other member states of the European Union. Subject to the decision of the United Kingdom's Supreme Court and (if referred) the European Court of Justice, it does not appear, however, that blanket or unjustified discrimination by arbitral institutions between EU arbitrators on the ground of nationality can be lawful under English law and EU law. If this is indeed so, it should be possible for arbitration rules to be amended in a manner appropriate to meet the long-standing objective of symbolic neutrality in an arbitrator for a particular case (in addition to that arbitrator's impartiality and independence).

There are already lessons to be learned from the Jivraj case. First, there is a cultural conflict between two different legal tribes: those arbitral specialists who struggle to see how old customs can now - even potentially - be unlawful are matched by human rights specialists who struggle to see how such customs can even be considered lawful. In the middle sits the legislative regulator, both in Whitehall and Brussels. It is regrettable that arbitration specialists did not intervene at an early stage of the drafting process, particularly with regard to the 2010 Act. Instead, the 2010 Act came like a bolt from the blue. There is undoubtedly more legislation affecting arbitration to come in the future. Arbitration specialists cannot make or unmake laws. It would be wise, therefore, if such specialists and institutions, instead of aspiring to different forms of supranationalism, intervened more effectively in advance to influence the shape and content of intended national and EU legislation.

Second, as with the Welsh chieftains, there is a law of unintended consequences as regards the well-intended interventions of the ICC and the LCIA in the Jivraj appeal. If successful, their arguments could render lawful, under English and EU law, discrimination against arbitrators in its most pernicious forms. Is it really desirable, in the 21st century, after the horrors of the 20th century, for arbitral institutions in the European Union to defend party autonomy in international commercial arbitration to the extent of permitting such parties to discriminate not only on grounds of religion but also gender and race? In England, it need only be recalled that Edward I, apart from giving his son to the Welsh, was also a vicious anti-Semite who banned Jews from England under his Edict of Expulsion in 1390, which was repealed only in 1656.

In the meantime, we must await the decision of the United Kingdom's Supreme Court and wish, as we once so earnestly wished that a certain german arbitrator had not challenged his VAT bill before the ECJ,23 that a certain non-Ismaili arbitrator had demanded to see the arbitration agreement before accepting his appointment by mr Hashwani. yet, thus is law made for arbitrators, and from such laws come change and renewal, both good and bad.

1
See H.V. morton, In Search of London (1951) p. 234. The story is probably apocryphal, partly because the dates do not match. Nonetheless, the first Prince of Wales became Edward II, and Charles, the current Prince of Wales, is the 21st, albeit Welsh-speaking.

2
The parties' arbitration agreement provided: "(1) If any dispute, difference or question shall at any time hereafter arise between the investors with respect to the construction of this agreement or concerning anything herein contained or arising out of this agreement or as to the rights liabilities or duties of the investors or either of them or arising out of (without limitation) any of the businesses or activities of the joint venture herein agreed the same … shall be referred to three arbitrators (acting by a majority) one to be appointed by each party and the third arbitrator to be the President of the H.H. Aga Khan National Council for the United Kingdom for the time being. All arbitrators shall be respected members of the Ismaili community and holders of high office within the community. (2) The arbitration shall take place in London and the arbitrators' award shall be final and binding on both parties."

3
S. Lazareff, 'Des Ismaéliens…', Cahiers de l'arbitrage, 2010-3, p. 959 at p. 962.

4
D. Spenser Underhill, London International Arbitration Club Table Talk (2010) p. 56.

5
Equality Act 2010: Section 9 (Racial Discrimination) provides: "(1) Race includes- … (b) nationality…"; Section 13 (Direct Discrimination) provides: "(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others…".

6
The garrick had already welcomed female guests at other tables. Leading Counsel had advised the garrick Club that all guests, male and female, would have to be treated equally under the 2010 Act, with no 'perilous' loopholes. It is said that the first female guest at the club table was to have been Dame Edna Everage, the well-known cross-dressing Australian comedian, but for another rule requiring all gentlemen to be dressed with jacket and tie, not invalidated under the 2010 Act.

7
L. Rabinowitz, 'Arbitration and Equality: Jivraj v. Hashwani', 12(1) Business Law International (January 2011) p. 119 at p. 123.

8
Rahcassi Shipping Company v. Blue Star Line (The Bede) [1967] 2 Lloyd's Rep 261 (Roskill J). The 'umpire' was mr Anthony Lloyd, later Lord Lloyd of Hampstead.

9
Regulation 2(3): "In these Regulations- … references to 'employer', in their application to a person at any time seeking to employ another, include a person who has no employees at that time; 'employment' means employment under a contract of service or of apprenticeship or a contract personally to do any work, and related expressions shall be construed accordingly…".

10
See the judgment dated 22 January 2009 of the Cour d'appel de Paris, SNF c/ CCI: "Considérant que pour exécuter ses obligations moyennant rémunération, la CCI [sic] doit organiser et administrer l'arbitrage et à cette fin fournir une structure propre à permettre l'arbitrage efficace, c'est-à-dire intervenant avec la célérité escomptée, elaborée conformement aux règles choisies et susceptible de recevoir execution."

11
Prudential Assurance v. Lorenz [1971] KIR 78; and see generally Lord mustill, 'Is it a bird…', Liber Amicorum Claude Reymond (2004) p. 211. The House of Lords' decision in Kelly v. Northern Ireland Housing Executive [1999] AC 248 suggests that the test is "wide and flexible".

12
Regulation 3(1): "For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons…".

13
Constantine v. Imperial Hotels [1944] KB 693. (Birkett J), where the guest was Sir Learie Constantine, one of the most famous cricketers in history; and Nagle v. Fielden [1966] 2 QB 633 (CA).

14
Article 1032(3) ZPo 1933, on persons legally incompetent to act as arbitrators, provided: "Abgelehnt werden können ferner Nichtarier im Sinne des gesetzes zur Wiederherstellung des Berufsbeamtentums vom 7. April 1933 (Reichsgesetzbl. I S. 175) und der dazu ergangenen Durchführungsverordnungen." See Jonas, ed., Kommentar zur Zivilprozessordnung, (1939;16th ed) p. 1. This law of 7 April 1933 "for the restoration of the professional civil service" excluded non-Aryans from german public service, including the german judiciary. For Nazi laws racially discriminating against german lawyers generally, see J. Beatson and R. Zimmerman, eds., Jurists Uprooted: Germanspeaking Emigré Lawyers in Twentieth-Century Britain (2004) and http://www.documentarchiv.de/ns/beamtenges.html. (I am most grateful to Bernd Scholl for the former reference.)

15
Regulation 7(3): "This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out- (a) being of a particular religion or belief is a genuine occupational requirement for the job; (b) it is proportionate to apply that requirement in the particular case; and…".

16
Yet even the Latin word 'arbitrator' betrays centuries of gender discrimination in the appointment of arbitratrixes.

17
Article 6(4) of the 1976 UNCITRAL Rules provides: "In making the appointment, the appointing authority shall have regard to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and shall take into account as well the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties."

18
Article 5.5 of the LCIA Rules provides: "The LCIA Court alone is empowered to appoint arbitrators. The LCIA Court will appoint arbitrators with due regard for any particular method or criteria of selection agreed in writing by the parties. In selecting arbitrators consideration will be given to the nature of the transaction, the nature and circumstances of the dispute, the nationality, location and languages of the parties and (if more than two) the number of parties."

19
Article 6 of the LCIA Rules provides: "6.1 Where the parties are of different nationalities, a sole arbitrator or chairman of the Arbitral Tribunal shall not have the same nationality as any party unless the parties who are not of the same nationality as the proposed appointee all agree in writing otherwise. 6.2 The nationality of parties shall be understood to include that of controlling shareholders or interests. 6.3 For the purpose of this Article, a person who is a citizen of two or more states shall be treated as a national of each state; and citizens of the European Union shall be treated as nationals of its different member States and shall not be treated as having the same nationality."

20
J. martin, H. Hunter and J. Paulsson, 'Commentary on the Rules of the London Court of Arbitration (1985)', ICCA Yearbook Commercial Arbitration, Vol. X (1985) p. 167.

21
Article III (Right of Foreign Nationals to be Designated as Arbitrators) of the 1961 European Convention on International Commercial Arbitration provides: "In arbitration covered by this Convention, foreign nationals may be designated as arbitrators." (1963- 1964) 482 UNTS 364. This echoes, but only feebly, galatians 3:28.

22
T. Bingham, The Rule of Law (2010) p. 55 ff.

23
Case C-145/96, Professor von Hoffmann v. Finanzamt Trier, [1997] ECR I-4857.