Annoyed by the decision of the Court of Arbitration, the petitioner filed a complaint with the High Court. However, the High Court decided, without ruling on the preliminary question of the applicability of the written application, that the issue of prohibition, that is, blacklisting, was not within the scope of the treaty. In addition, the High Court found that the notice in which the arbitration procedure is invoked only incriminated the termination of the contract and not the complainant`s blacklist. The High Court found that the Court of Arbitration could not grant a stay of the blacklist when it ruled on the application presented by the complainant pursuant to Section 17, since the complainant could be compensated later by damages1. The Supreme Court of Gujarat („High Court”) held that an arbitration decision in the process of streamlining an arbitration procedure could not be challenged in a written motion under Articles 226 and/or 227 of the 1950 Indian Constitution („Constitution”). Recently, in Deep Industries Limited/Oil and Natural Gas Corporation Limited and Anr (Civil Appeal 9106 of 2019, November 28, 2019), the Supreme Court ruled on the issue of the safety of application applications against the orders of the competent court under Section 37 of the Arbitration and Conciliation Act 1996 (Act). A new dimension was added to the above tests when the Supreme Court of Sanjana M Wig (Ms) /Hindustan Petroleum Corporation Ltd (5) found that, notwithstanding a compromise clause contained in the agreement, access to justice would not be denied by public recourse if a case was of a public nature and if the forum chosen by the parties was not in a position to grant appropriate facilities. In addition, it was decided that a written petition would also be filed when it involved an issue arising from one of the parties` public service missions. Subsequently, in Titagarh Paper Mills/Orissa State Electricity Board (4), the Supreme Court held that where a dispute between the parties requires a decision on a contentious issue, if the parties are required to hold oral and documentary evidence, it should be determined by the national forum chosen by the parties and that, in such cases, the court cannot make a written application. Applying this test to this case, the Tribunal found that all the arguments put forward by the applicant in the arbitration agreement should be largely covered by the arbitration agreement. Therefore, there was no reason why the applicant should not pursue the arbitration award she had solemnly accepted under the agreement, rather than relying on the extraordinary jurisdiction of the Supreme Court under section 226 of the Constitution to determine the issues that were in fact the subject of the arbitration agreement.
The respondent filed a motion under section 16 of the Act, which challenges the jurisdiction of the Court of Arbitration to rule on the blacklist issue, as well as the issue of termination. The Arbitration Tribunal dismissed the appeal and found that the opinion, which invoked arbitration, was not limited to the issue of termination, but also related to the issue of the blacklist. Moreover, according to the Court of Arbitration, the blacklist issue was related to the terms of the contract and that, therefore, the validity of the blacklist could be decided by the Court of Arbitration. Section 17 was decided in favour of the complainant and the blacklist decision was suspended by the Court of Arbitration. In 1976, in Bisra Stone Lime Co Ltd/Orissa State Electricity Board (3), the Supreme Court indicated that all questions of law (which may be an interpretation of the agreement) should not necessarily be withdrawn by the Court of Arbitration simply because the court has discretion under section 226 of the Constitution and the Tribunal may be in a better position to decide these issues.