When law faces the encounter of business and religious traditions: Using private international law to deal with ‘unsolvable’ cases?

Brachotte, Sandrine
(2018) 11th Annual Toronto Group Conference — Location: Osgoode Law School of York University and University of Toronto Faculty of Law (1.March.2018)

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  • Brachotte, Sandrineorcid-logoUCLouvain
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Abstract
In this paper, I examine how law could accommodate ‘unsolvable cases’. By the latter, I mean judicial decisions where legal reasoning seems disconnected from the true issue at hand. While the practical consequences of the decision may seem fair and reasonable, the process to get there “does not feel right.” To illustrate this phenomenon, I study the Jivraj case that reached the UK Supreme Court in 2011. This case concerns Ismaili arbitration, and involves issues of discrimination based on religion at work, party autonomy in arbitration and the binding force of contracts, as well as the Ismaili ethos that commands amicable dispute resolution, within the Ismaili community. Reversing the judgement of the Court of Appeal, the Supreme Court found that arbitral agreements could require arbitrators to have a particular religious background or affiliation without contravening the 2003 Regulations, protecting employees against religious discrimination. I discuss how the court could have reasoned alternatively, based on two types of theories that use private international law techniques, in order to reflect the conflict of rationalities at stake, between state law, Ismaili ethics, and the global economy. As a result of that discussion, I argue the Jivraj case is actually about a conflict of norms that is internal to state law, between religious discrimination against employees and party autonomy in arbitration proceedings. More broadly, I end with some reflexions on the ability of law to reflect the role of global economy in cases such as Jivraj, where such role is not explicit, but significant.
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Brachotte, S. (2018). When law faces the encounter of business and religious traditions: Using private international law to deal with ‘unsolvable’ cases? 11th Annual Toronto Group Conference, Osgoode Law School of York University and University of Toronto Faculty of Law. https://hdl.handle.net/2078.5/239027