Artificial Intelligence in Arbitration
By Hanna Falkiewicz
Artificial Intelligence (AI) starts to influence human life in different places. AI is already used in fields such as healthcare, transportation, finance, or psychology. It is natural that arbitrators began to wonder how AI will (or already have) influence their work.
There are different ways in which AI may work for arbitration. One of them is to use it as a tool for the case research – from identifying terms and conditions of contract, to categorizing and evaluating different data. It is said, that basic AI is already used for this purpose. For example, the system called ‘predictive coding’ is based on the artificial intelligence. The algorithm works on the basis of the parameters set by lawyers. The only thing they have to do, is to sort the sample of documents, marking them ‘relevant’ or ‘not relevant’. After that, the algorithm sorts the database of all cases and documents and shows the relevant ones in order of importance and best suit for the request.
The other idea is to use AI during the process of arbitrator’s appointment. Thanks to data analytics AI can find the perfect arbitrator-match that fits the particular case. Such system already exists. Www.arbitratorintelligence.com is a website which gathers the sensitive data about the decisions made by the arbitrator, analyzes them and then present to the users, who can make the better-informed decision on which arbitrator to choose for their case. These functions of AI help to lower the costs of the arbitration proceeding by speeding up the preparatory processes.
Moreover, there is a question whether the AI can replace arbitrators themselves. Technically it would be possible. It would eliminate the process of selecting arbitrators and speed-up the arbitration proceeding even more. However, there are voices of concern as well. The AI may render the arbitral award by itself only on the basis of previous cases. The analysis of these cases would be quicker, but the law would not develop. What if some new, complex case arise? The AI may not find the answers needed in its database or render the decision which does not cover all important issues. Moreover, there is a problem of data privacy. Since confidentiality is one of the most important characteristics of arbitration, many cases are not available to the public. Should the AI have the access to them either way? It would breach this fundamental value of arbitration.
We also can’t forget about the human emotions that AI is not able to recreate. The compassion, discretion or sense of equity. At the end, the parties of arbitration proceeding want to be heard and connect with real person instead of machine.
Even though, the AI may not replace the arbitrators so soon, the system may be used in other ways. It may support the arbitrator by providing some sort of expert opinion to the case. The arbitrator may consider it but still make the decision him/herself. It may also add suggestions to the award already prepared by the arbitrator. It would help with avoiding the errors that may happen during translation, interpretation or documentation concluded by human.
There are also some downsides of AI that prevent it to enter the arbitration courts yet. Firstly, creation of well operating system is a huge investment, both in time and costs. Moreover, practitioners have concerns about possible unemployment problem. When AI will be used for case research or as support for arbitrator, the people who are doing it now may lose a job. In addition, the states and public may not accept AI either. Would the award rendered by the computer be enforceable? Would people trust the process handled by AI? There is a lot to consider before using AI in arbitration on daily basis.
To sum up, there is still more questions than answers regarding the AI in arbitration. With no doubt some changes are coming, but how they will influence the work in the arbitration courts and when to expect them is still to discover.
Bibliography:
Kim Franklin, ‘AI Technology and International Arbitration - Are Robots Coming for Your Job?’ <https://www.ciarb.org/news/ai-technology-and-international-arbitration-are-robots-coming-for-your-job/> accessed 7 October 2020.
Tomasita Sherer and Kiera Gans, ‘The Wisdom of Using AI for Middle Value Arbitration Disputes’ <https://www.law.com/newyorklawjournal/2020/06/05/the-wisdom-of-using-ai-for-middle-value-arbitration-disputes/?slreturn=20200907071638> accessed 7 October 2020.
Aditya Singh Chauhan, ‘Future of AI in Arbitration: The Fine Line Between Fiction and Reality’ <http://arbitrationblog.kluwerarbitration.com/2020/09/26/future-of-ai-in-arbitration-the-fine-line-between-fiction-and-reality/> accessed 7 October 2020.
‘AI & Its Effects On Arbitration’ < https://www.mondaq.com/india/arbitration-dispute-resolution/956956/ai-its-effects-on-arbitration> accessed 7 October 2020.
Maxi Scherer, 'Artificial Intelligence and Legal Decision-Making: The Wide Open?' (2019) Journal of International Arbitration, Issue 5, p 539-573.
<https://arbitratorintelligence.com/faqs/> accessed 7 October 2020.
Claire Morel de Westgaver, Olivia Turner ‘Artificial Intelligence, A Driver For Efficiency In International Arbitration – How Predictive Coding Can Change Document Production’ <http://arbitrationblog.kluwerarbitration.com/2020/02/23/artificial-intelligence-a-driver-for-efficiency-in-international-arbitration-how-predictive-coding-can-change-document-production/> accessed 7 October 2020.