(MENAFN- Khaleej Times) A Dubai resident has brought and won an unprecedented complaint against the UK Supreme Court, after the European Commission decided an anti-discrimination case in his favour.
Saddruddin Hashwani, represented by prominent UK-based international arbitration lawyer Sairosh Zaiwalla, took the case to the European Union's executive arm, the European Commission, based on the decision by the UK Supreme Court that declared it legal for arbitrators to be hired based on religion or class.
Zaiwalla said the case related to a contract written in Britain between Hashwani and another party, Mr Jivraj, who belonged to the Ismaili faith, which stipulated the three arbitrators to any future dispute must all be "high office holders" from the Ismaili faith. However, when the time came for arbitration, Hashwani disputed this was a valid condition, invoking a European Union law requiring equal opportunities even for the self-employed - which arbitrators are considered.
Zaiwalla said while the Court of Appeal upheld Hashwani's complaint, the Supreme Court overturned that decision and said the original terms of the contract must be adhered to, stating the EU law applied only to a "narrow class of self-employed persons and ... discriminatory contracts" deciding the case was so straightforward it did not need to be referred to the European Court of Justice for clarification of the EU law.
Dissatisfied, Zaiwalla and Hashwani took a case to the European Commission, effectively against the UK Government, which then determined the Supreme Court should have referred the case to the higher European court and must rehear the case or reverse its decision.
"If the EU Commission is not satisifed with the UK Supreme Court's response through the UK Government, the EU Commission would then start proceedings against the UK Government in the EU Court of Justice."
Zaiwalla said the EU had now written a letter to the UK government asking why the EU should not initiate proceedings against the UK Government for infringing the treaty that all EU members will adhere to EU laws.
"It's never been done before (that infringement proceedings had been issued against the UK) ... but the commission is taking so long (to take action)."
Fearless advocacy
Zaiwalla said he was confident he had a good chance of success before taking on the case: "That's the reason why we took it."
"It's a very crucial point of law and that's why Hishwani took the case, and I think we were right."
After the Supreme Court made its decision public, a Court of Appeal judge wrote an article stating the Supreme Court had been influenced by lobbying from the private sector who wanted more control, Zaiwalla said.
"They want to keep the choice of arbitrators completely out of the court's purview."
But basic anti-discriminatory laws should still apply, he said.
"We say the arbitrator is still employed so equal opportunity laws still apply ... what happens if you want a plumber and you say 'I want only a Christian plumber'? Or a black plumber?"
There would be a "little backlash" when the news became public in the UK, as the Supreme Court was the highest court in the land and perceived as infallible.
"The Supreme Court failed to apply EU law and found a way to get around it ... if there was any doubt they should have referred it to the ECJ."
This is not the first time Zaiwalla has been involved in big cases in Dubai, having worked on upwards of about 30 cases here in the past three decades.
In 1982, Zaiwalla butted heads with who was probably to become Zaiwalla's most famous opposing counsel, when his firm took on a $2 million shipping dispute - with Tony Blair the other side's junior counsel. Zaiwalla's team triumphed, with a small settlement - something Blair, who he still catches up with from time to time, has never forgotten.
"I think he was good. We were all very young at the time, all learning on the job. He's still a very good friend, we still talk about the arbitration and we're both on the same side now - he came over."
Zaiwalla was the first Asian lawyer to set up a law firm in London and has also presented the Dalai Lama's viewpoints to the Chinese Government.
"Somebody once described me as a little boy saying the Emperor has no clothes at all."
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