Ahead of International Women's Day, Supreme Court Justice BV Nagarathna on Saturday raised concerns about gender disparities when it comes to arbitration-related opportunities for lawyers, noting that arbitration continues to be a male-dominated field.

Justice Nagarathna was speaking at a symposium organised by the Indian Council of Arbitration (ICA) at Federation House in New Delhi, on the theme "Where Women Lead, Justice Follows."

“Women never go and seek arbitration as such. It may be restricted as a small narrow social club for male arbitrators. For an appointment to be truly based on merit, we must start with equality of opportunity. It is a very closed-door club in arbitration. Familiarity or being well-known is used as a metric to evaluate competence, which closes the door on many qualified women. Do we go about clamouring for arbitration work? No," she noted in her address.

Justice Nagarathna added that when merit is determined by number of prior appointments and visibility, such merit favours privilege and advantage over skill, ability and talent. 

Justice Nagarathna went on to note that a woman arbitrator faces bias and doubts, such as whether she would be able to handle aggressive counsel, whether her authority would be respected and whether she would be perceived as sufficiently knowledgeable in the absence of extensive experience.

“These questions are rarely asked about male arbitrators, then why are they asked from women arbitrators?” she asked.

She pointed out that although women enter law schools in large numbers, they are largely under-represented as arbitrators, arguing counsel or senior advocates. 

“Why is that so? Especially in commercial and international arbitration, there numbers are hardly there. We are expected to be empowered, but what are we doing? “ she asked.

Justice Nagarathna noted that one reason for this is due to family commitments. Women who return to litigation after pregnancy and child-rearing should be supported, she highlighted.

“When such women return, they must be given more boost and encouragement, because they have returned to their careers after discharging their duties as women."

Diversity should form one of the many criteria in appointing an arbitrator, Justice Nagarathna further highlighted. 

“In line with our aspirations to become a global hub for arbitration, competence and diversity must form a bedrock of our arbitral ecosystem," she said.

As part of measures to increase the participation of women in arbitration, Justice Nagarathna opined that judges must add more women in their list of arbitrators.

“Judges have a list of arbitrators. How many women are on the list, is the question. The judge never makes an attempt to add women as arbitrators in the list. Even if added, it will be for a family or legacy dispute, but not a commercial dispute. Judges must see how they can ensure that more women in the list of arbitrators and ensure they are given an opportunity," she said.

She also suggested that the institutional panel of arbitrators must be updated and accompanied by detailed statistics and reports that consider diversity of the arbitral tribunal to be a salient feature.

Justice Nagarathna further said that arbitral institutions and senior members of the bar have a responsibility to ensure greater representation of women in arbitration.

“Arbitral institutions should adopt guidelines that encourage parties to consider a diverse pool of potential arbitrators. Schemes of mentorship and training for first-time arbitrators must be made available by the institution. Responsibility is owed by senior members of the bar to the next generation. They must name women lawyers when consulted, not as a token, but as a first choice in appropriate situations. They must actively be willing to share opportunities with women," she said.

She, however, clarified that women should not be appointed as a mere token but for their merit. For training women lawyers in arbitration, Justice Nagarathna stated that the National Judicial Academy could take the lead.

“There must be identification of women advocates who receive requisite training and guidance to become arbitration in future. ICA could commence this training. National Judicial Academy must take the lead by drawing up a course module and have regular classes for training advocates and domain experts as arbitrators and issue a certification," she said.

She also stated that repeat appointments of the same person as arbitrator must be avoided. Arbitral Institutions could impose a cap on the number of arbitrations assigned, she added.

“Why not encourage them [women] to become arbitrators? Arbitral institutions must offer internships, apprenticeships and clerkships to women lawyers, law students. For more experienced professionals, the possibility of creating fast-track accreditation and certification program must be commenced. To get over the problem of lack of extensive experience, the institution of co-arbitration or shadow arbitration can be explored," she went on to propose.

She lamented that despite women having comparable contributions and competence as their male counterparts, structural barriers impede women from fully participating in the workforce and as citizens of the country. 

Justice Nagarathna further emphasized the importance of women’s equal participation in leadership roles.

“The need of the hour for the country's economic growth, in my view, firstly, is women's equal participation in the political and economic leadership. Secondly, the moral duty is cast upon us to uplift other women. Thirdly, the constitutional imperatives of equality, non-discrimination," she said.

Justice Nagarathna's address also saw her briefly touching upon her days of practice as a lawyer. She recounted one Women’s Day when she was allowed by the judge to make a mention first since she was a lady lawyer.

“The judge said, today is the 8th of March, let the lady mention first. My response was, let every day be the eighth of March," she remarked.

Justice Nagarathna closed her speech stating that India is standing at a crucial juncture, where a critical analysis of the arbitral ecosystem is imperative. 

“India stands at an epochal moment. What is needed is a critical analysis of whether our arbitral ecosystem embodies the make-up of our society and constitutional ideals, as it is reflective of what is happening in the Bar and Bench," she noted.

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