Chapter Eleven: Dalma Demeter and Thilini Perera, Religious Influences over Arbitral Proceedings: Personalising or Jeopardising Justice?
Dalma Demeter and Thilini Perera consider arbitration as a way of achieving justice outside the courtroom. Despite the private nature of arbitration under Shari’a and Judaic law, the terms of settlement on which the parties agree are enforceable.
That would seem to be unexceptional as a form of justice has been arrived at by means of a negotiated settlement between the parties. However, that is not the end of the matter because the identity of the arbitrator is prescribed. That person must be male which causes us to confront the conflictual nature of justice head-on. This chapter shows that the attainment of justice is not restricted to the parties to a dispute alone as third parties, including the community as a whole, also have an interest.While Demeter and Perera do not support gender discrimination per se, they do support party autonomy as a valued principle of arbitration. However, it is precisely this autonomy that enables gender discrimination to thrive. While the autonomy of the parties is a significant principle in the performance of justice in commercial arbitration, that autonomy may be disturbed by deference to religion. Even if the legal actors within an arbitral situation may themselves feel that both the process and the outcome are just, the ramifications of justice widen when third parties, that is, members of the public or the community as a whole, object that the process is unjust by virtue of the religious strictures. The collision of autonomy, religion and the non-discrimination principle in an unusual factual situation highlights the inadequacy of a closed definition of justice in favour of a performative understanding.