Former Supreme Court judge Justice Indira Banerjee recently explained that the relatively low number of women appointed as arbitrators is partly attributable to the historically limited representation of women in the higher judiciary, particularly the Supreme Court.
Justice Banerjee was speaking at the launch of Arbitrator Appointments in Numbers, an empirical study prepared by the Milon K. Banerji Arbitration Centre (MKBAC) at NALSAR University of Law, Hyderabad.
The Centre is chaired by former Supreme Court Justice Rohinton Fali Nariman, with Senior Advocate Ritin Rai serving as Co-Chair and Advocate Dr. Amit George as Director (Research). Senior Advocate Gourab Banerji is its Donor and Patron, while Advocates Shreya Parikh and Chand Chopra serve as Associate Directors (Research).
The research team comprised Adishree Krishnan, Aditi Bhojnagarwala, Arnav Mathur, Hamza Khan, Mahika Roy, Manav Pamnani and Zorawar Almeida. The report was technically edited by Hruthika Addlagatta and Sukaina Naqvi, while Eluckiaa Asaithambi served as Faculty Coordinator.
The discussion also featured Delhi High Court judge Justice Prateek Jalan, Bombay High Court judge Justice Somasekhar Sundaresan, Senior Advocates Gourab Banerji and Ritin Rai, along with researchers from the Centre who presented the report's findings.
The study found that men accounted for approximately 70 percent of court-appointed arbitrators, while women accounted for only 30 percent.
Justice Banerjee pointed out that she was only the eighth woman appointed as a Supreme Court judge.
"I was the 8th woman to be appointed, subject to correction," she said.
She explained that parties frequently seek retired Supreme Court judges as arbitrators, but very few women judges are available for such appointments.
Referring to the passing of Justice Fathima Beevi, the advanced age of Justice Sujata Manohar and the professional commitments of other retired women judges, she estimated that only handful remained available.
She further explained the practical imbalance: at any given time, there might be only five or six active retired women Supreme Court judges available for arbitration, a number comparable to the male Supreme Court judges retiring in a single year.
However, Justice Banerjee emphasised that competence and integrity should guide appointments.
"Integrity is of number one, utmost importance," she said.
Justice Jalan questioned whether arbitration's success should be measured solely by arbitrator appointments or the survival of awards. He argued that refusing to appoint an arbitrator where no valid agreement exists can protect the process, and that a settlement reached while a Section 11 petition is pending need not automatically be treated as an unsuccessful delay.
He also cautioned against treating the setting aside of an arbitral award as inherently anti-arbitration. In his view, upholding a plainly unsustainable award can undermine confidence in arbitration, while setting aside such an award can protect its credibility as a dispute resolution mechanism.
Justice Somasekhar Sundaresan called for research into proceedings under Section 29A of the Arbitration Act, which governs extensions of arbitral mandates.
He questioned why arbitrations continued beyond statutory timelines and whether courts adequately examined the reasons before granting extensions.
"Should party autonomy be overridden by rigid statutory timetables?" he asked.
Justice Sundaresan also suggested examining whether statutory arbitration under laws governing MSMEs, national highways and railways had achieved its intended objectives.
He further called for assessing whether fee regulation under the Fourth Schedule had improved efficiency or discouraged experienced practitioners from accepting appointments.
He additionally stressed that issues going to the existence of the arbitral dispute should, as far as appropriate, be left to arbitrators. At the Section 11 stage, he called for systematic listing and disposal practices to reduce the backlog of appointment petitions.
Senior Advocate Gourab Banerji questioned why Section 11, intended as a straightforward mechanism for appointing arbitrators, had repeatedly generated Constitution Bench litigation.
"What is the real scope of section 11? Having argued all these matters, I don't have a clue," he remarked.
He questioned why courts repeatedly expanded scrutiny at the appointment stage despite legislative attempts to restrict judicial intervention.
Senior Advocate Ritin Rai raised concerns about arbitrators accepting appointments despite substantial existing commitments.
He suggested that courts ascertain an arbitrator's availability before finalising appointments, which could reduce subsequent applications for extending arbitral mandates under Section 29A.
Rai also suggested examining whether an arbitrator's professional background affected the likelihood of awards surviving judicial challenges.
Rai also highlighted how the evolving law on bringing non-signatories into arbitration adds complexity at the Section 11 stage and can contribute to delays in disposing of appointment petitions.
The report examined 3,688 cases filed in 2025 before the three courts.
It found that advocates received approximately 73 per cent of appointments, retired judges 23 per cent, and technical experts only 3 per cent. Researchers also found that 5 percent of arbitrators received nearly one-fourth of all appointments.
During the panel discussions at the launch of the Report, it was also touched upon that certainrepeat appointments entailed referral of multiple individual but inter-connected disputes (family disputes, group matters, request by the parties to connect them, etc.) to the same arbitrator for consistency and convenience.
Further, it was also noted that comparisons across Courts would also need to take into account individual characteristics and case loads. For instance, the High Court of Delhi has only one bench whereas the High Court of Bombay has several, and the report engages with the principal bench of the latter.