Proposed English Bill Banning Arbitration in Family Law Cases, and Banning Sex-Discriminatory Rules in Arbitration Generally

The bill seems to be specifically aimed at Sharia courts; here’s a Telegraph (UK) story, a pointer to the House of Lords debate, and to the Parliament Web page on the bill, which in turns points to the text. The particular prohibitions in the English proposal would include:

(a) treating the evidence of a man as worth more than the evidence of a woman, or vice versa,

(b) proceeding on the assumption that the division of an estate between male and female children on intestacy must be unequal, or

(c) proceeding on the assumption that a woman has fewer property rights than a man, or vice versa.

I blogged two years ago about the general question of sex-discriminatory rules in religious arbitration, whether Muslim or Jewish, and whether arbitral decrees issued by tribunals that follow such rules are enforceable — an interesting question, as is the question of whether and to what extent some Jewish Beth Dins in practice employ sex-discriminatory rules as well.

Note that arbitration — or at least binding arbitration — is a process under which two parties agree to have their dispute resolved by an arbitral body that they select, and then the arbitral body’s decision becomes enforceable in a country’s general court system (subject to various limits on enforceability of contracts, e.g., that you can’t contract to have your hand chopped off as a penalty, that a contract can’t resolve the rights of third parties, such as children in a child custody dispute, etc.). A classic commercial arbitration would be if A and B agree in their contract (an ordinary business deal, an employment agreement, a consumer-seller agreement, and so on) that any disputes under the contract are to be resolved using some named arbitration organization. Most such arbitration agreements do not use religious arbitrators, and the arbitrators purport to apply ordinary law (e.g., California law, French law, etc.) and not religious law.

But some agreements provide for religious arbitration, often using religious officials as decisionmakers and calling for the application of religion law. A church, for instance, could provide in its employment agreements that employment disputes are to be resolved using Christian arbitration. Orthodox Jews often specify in their business agreements that any disputes are to be resolved using Jewish Beth Dins, which would apply Jewish law. Likewise, Jews and Muslims sometimes use religious arbitration to resolve disputes related to property settlements in divorce, whether the agreement to arbitrate comes before the marriage or at the time the divorce is being contemplated.

Naturally, in many arbitration agreements, as in many contracts more generally, some people are skeptical about whether the parties’ consent to the agreement was “genuine” or whether it was unduly “pressured.” American law generally takes quite a lot to invalidate a contract or an arbitration agreement on the grounds that the parties consented under pressure; among other things, many business transactions involve a party who might need the agreement in order to survive in business, but the economic pressure exerted by this economic reality generally doesn’t suffice to invalidate the agreement.

The question in England right now, as I understand it, is whether to bar such arbitration in “family law” cases (which presumably would include property settlement cases), and whether to require sex-neutral rules in other cases where arbitration has been agreed to. But I’d love to hear more from English lawyers who know more about specific English legal rules that might bear on this — e.g., am I right in assuming that the “family law” arbitration prohibition would extend to arbitration of property settlement disputes? — and also about how likely this is to be enacted.

In particular, I’m curious about whether this law would affect arbitrations related to wills in which (a) the testators provide that sons get a bigger share than daughters, or (b) the testators provide that the will is to be interpreted according to Islamic law (e.g., as in this case, which calls for giving sons a bigger share than daughters. Would arbitral bodies be prohibited from giving more to sons than daughters under such wills? Or would that just not be covered, because the rules would be seen as effectuating the testator’s intent — testators in England, I take it, are free to discriminate among their children — and that the specific prohibition of clause (12)(b) applies only to intestate succession and not to distribution under a will?

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.