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Introduction
Various technological developments and their intersection with
arbitration have recently been subject to vigorous debates.
Particularly with regard to the COVID-19 pandemic, there has been a
proliferation of smart technologies, which are geared towards
increasing efficiency and quality of arbitrations. One such
technological development sparking discussion has been Artificial
Intelligence (AI). Several AI-based legal tech tools in the market
have proved useful in terms of saving time and cost of
arbitrations.
The essence of commercial arbitration is rooted in the efficient
adjudication of legal disputes. With machine learning processes of
the AI, these tasks can be readily automated. This begs the
question whether AI could serve a bigger purpose in assuming
important roles and tasks undertaken by arbitrators.
Merits of the AI-arbitrators
International arbitration tends to be expensive and lengthy. It
appears that the AI-based arbitrations could be able to change
that. With an ability to process vast amounts of data within
seconds at a fraction of the costs otherwise incurred, AI is highly
attractive to parties concerned about matters of efficiency and
spending.
Secondly, the paramount duty of an arbitrator is to be
independent and impartial. As such, if AI-arbitrations were to
become common practice, it could counteract biases and minimize
concerns of undue influence. Similarly, there would be less chance
of a conflict of interests as AI, being a tool for automation
simulated through a computer program, is capable to adjudicate upon
the dispute objectively.
Not only are conscious and unconscious biases, otherwise
inherent to human nature, absent in AI software, human arbitrators
are also more prone to offering scholarly opinions on an issue that
may be central to a case and thus likely to stir up conflict.
Drawbacks of the AI-arbitrators
Adjudication is a long-established, adversarial progress, whose
many benefits include finality as well as the safeguard to ensure
parties due process under the law. Public adjudication also offers
the advantage of human interaction and the ability to evaluate
expressions of witnesses more sensitively, which a software might
interpret in a number of different ways.
Moreoever, the software is only as good as the data that it is
fed. If used in a dysfunctional and biased manner, algorithms could
lead to discriminatory results. Similarly, limited entries will
render selective information outcomes. Therefore, while able to
offer a ‘binary response based on probabilistic inference
[AI] may obscure many controversies under the guise of objective
analysis.1
Furthermore, the practice of arbitrators draws on a combination
of factors, inter alia experience, emotion and empathy. Deciding a
case in arbitration, is not merely based on inductive, but
deductive reasoning, i.e. giving consideration to specialized
domain knowledge, expertise and practical
understanding.2 Further, beyond lacking human discretion
that is vital to dispute resolution or the cognitive abilities
central to the legal decision-making process, AI would also deprive
court users of their right to be provided with reasons for the
outcome of their case.3
It is for all of the aforesaid factors that a technological
advancement such as AI, neither substitute nor render
instituionalised court-based adjudication redundant.
Conclusion
While it seems improbable that AI will replace human arbitrators
in the near future, the latter could undoubtedly use its software
to their benefit in addressing time and costs concerns. AI-based
platforms such as Opus 2, Luminance, Litigate AI, Ross
Intelligence, etc. have already made consireable strides in
transforming the practice of arbitration – offering solutions
that are datadriven, more expedient and may narrow the possibility
for error.
Nevertheless, the notion of arbitration being conducted by human
arbitrators is here to stay. While the democratization of
substantive arbitration data through AI technology certainly offers
considerable advantages, it is difficult to fathom how human
arbitrators, at present, could be replaced particularly when
considering matters such as the sanctity of party-nomination
procedures. Neverthleless, if proving to serve commercial business
interests and current technologies continue to be improved and
built upon, the prospect of AI-based arbitrations can no longer be
excluded and may in fact be inevitable.
Footnotes
1 Chauhan, A. S. (2020) Future of AI in
Arbitration: The Fine Line Between Fiction and Reality. Kluwer
Arbitration Blog. Available via:
Future of AI in Arbitration: The Fine Line Between Fiction and Reality
[accessed 10.12.2020].
2 Ibid.
3 Ibid.
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Source: https://www.mondaq.com/austria/arbitration-dispute-resolution/1034666/artificial-intelligence-and-arbitrators-friends-or-foes-
