Last year's landmark Jivraj v Hashwani ruling on the employment status of arbitrators could be set for a challenge in the European courts, after Hashwani's lawyers took the case to the European Commission.

City litigation firm Zaiwalla & Co has sent a complaint to the European Commission asking it to examine whether last year's closely-watched UK Supreme court judgment – which ruled that nationality and religion can be used as criteria in the selection and appointment of arbitrators – infringed EU law.

At the heart of the case is the question of whether arbitrators are considered employees, and thus whether they are subject to UK equality laws.

Zaiwalla senior partner Sarosh Zaiwalla is advising Hashwani alongside Fountain Court's Michael Brindle QC and Essex Court Chambers' Brian Dye.

In a statement, Zaiwalla said: "Mr Hashwani has complained to the European Commission against the judgment of the UK Supreme Court. The judgment is primarily wrong, because in effect it allows parties to discriminate on the grounds of gender, race, sexual orientation and religion when selecting their providers of professional services.

"If an employer gives someone a job, they have to ensure that the recruitment process is fair and that the only basis for selection is ability. Thanks to this decision, so long as the 'job' is said to be a contract to provide services on a self-employed basis, an employer is within his rights to say, for example, 'No blacks, Christians or gays'. How can this be acceptable in today's society?".

The case first went to the High Court in 2008, concerning a property investment joint venture agreement between Jivraj and Hashwani in 1981.

The agreement included an arbitration clause requiring any dispute to be resolved before three arbitrators, each of which must be "a respected member of the [Muslim] Ismaili community". Such a clause would normally be deemed discriminatory under UK equality laws.

Hashwani had appointed Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator, which Jivraj said breached the terms of the agreement.

His lawyers argued against Hashwani's case that the clause was discriminatory under UK equality legislation, because arbitrators were not technically employed, and therefore fell outside the scope of the regulations.

The High Court initially found in favour of Jivraj, before the Court of Appeal reversed this decision in June 2010.

In August last year, a landmark judgment handed down by the UK Supreme Court then confirmed the original decision, that arbitrators were not employees and therefore nationality and religion could be considered in their selection.

Hill Dickinson commercial litigation partner Jonathan Berkson has been acting for Jivraj alongside One Essex Court's Rhodri Davies QC and Cloisters Chambers' Schona Jolly.