Artificial intelligence in international arbitration - A myth or reality?

Pooja Damodaran*

“Our intelligence is what makes us human, and AI is an extension of that quality.” – Yann Le[1]

International arbitration has developed leaps and bounds the past decade. International arbitration is borderless, flexible, efficient and serves transnational justice. In the era of globalisation and technology take over, there has been much speculation about not just process of arbitration being technologically advanced but if the arbitrators can also be replaced by robots. Artificial Intelligence (AI) is making its presence felt in international arbitration but will the AI future be a realistic solution to disputes or will there be no significant impact? The future beholds the answer.

In international arbitration, AI has been used for wide range of tasks including appointment of arbitrators, legal research, drafting, reviewing written submissions, translating of documents, case management and document organization, cost estimation, hearing arrangements, drafting procedural orders, etc.[2]

There are several studies that support computer programs are better than humans in predicting the outcome of legal decision-making.[3] For instance, Jurimetria, the legal prediction technology tool belonging to Wolters Kluwer provided analysis of millions of court decisions, information and the success rate of appeal lodged with the Spanish courts. Siarelis robot is another example in this front, the Colombian government used Siarelis in Superintendencia de Sociedades de Colombia[4] to resolve corporate disputes.

The settlement of disputes by robots is undoubtedly causing great concerns. The main concern being ars boni et aequi.[5] The requirement imposed under arbitration laws give wide discretion to the parties to appoint arbitrators of their choice. Most arbitration laws require the arbitrator to be a natural person and have a full legal capacity. Certain jurisdictions grant power to appoint robot arbitrators within the scope of their definition of arbitrators.[6] However, certain jurisdictions such as England and France explicitly require arbitrators to be natural persons.[7]

Besides the debate if it is permissible to appoint robotic arbitrators, there is also general concern if the awards generated by the robots can be equated to man-made awards. Robots generate awards based on rule-based algorithm and machine-learning algorithms. The result generated by the robot based on these algorithm are standard. The major drawback in robot generated awards are the requirement of reasons. Article 31(2) of the UNCITRAL Model Law for instance requires arbitrators to state reasons upon which the award is based.

Where there is a requirement under the arbitration law and/or the applicable arbitration rules to give reasons, the question arises as to whether a failure to give reasons for all or part of the decision constitutes a valid ground for seeking to set aside the award. Hence, the courts generally set a low standard for requirement to give reasons, however it is essential that the arbitrators explain succinctly why they have reached their decision.[8]

The reasons by algorithm are still not widely accepted in international arbitration practice. There can be no definitive way to understand how the algorithm reached its decision. These algorithm are human designed and thus, rudimentary reasoning of robotic awards though accurate is still not accepted as justice served. Many tasks performed by the arbitrators such as legal ethics, evaluating issues and drafting awards involve “people skills”, human interaction and understanding. There is no guarantee that a robot completely resonates with the submissions of the counsels.

It can be concluded that idea of robot arbitrator is a big leap forward in terms of technological advancement. There are some downsides to this AI tool. Robot generated awards are not legitimate because justice is not a simple algorithm; it is human virtue.[9] Justice needs to be put to practice and needs a complex analysis of situations and circumstances considering relevant facts, applicable law and render rationale solutions.

Even though robot justice is criticised for being fallible and palatable, AI and international arbitration as whole does not fail.

* LLM Candidate in International Commercial Arbitration Law (ICAL) in Stockholm University. Email: : pooja.damodaren@gmail.com

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[1] Yann Lecun Professor, New York University.
[2] Robert H. Smit, The Future of Science and Technology in International Arbitration: The Next Thirty Years, in The Evolution and Future of International Arbitration p.365–78 (Wolters Kluwer 2016); Francisco Uríbarri Soares, New Technologies and Arbitration, VII(1) Indian J. Arb. L. 84 (2018); Gauthier Vannieuwenhuyse, Arbitration and New Technologies: Mutual Benefits, 35 J. Int’l Arb. 119–29 (2018); Sophie Nappert, The Challenge of Artificial Intelligence in Arbitral Decision-Making, Practical Law UK Articles (4 Oct. 2018); Emma Martin, The Use of Technology in International Arbitration, in 40 Under 40 International Arbitration 337–48 (Carlos Gonzalez-Bueno ed., Wolters Kluwer 2018).
[3] Roger Guimerà & Marta Sales-Pardo, Justice Blocks and Predictability of U.S. Supreme Court Votes, (2011).
[4] “Supersociedades, el primer juzgado de América Latina en contar con un robot asistente”, Superintendencia de Sociedades” (Supercompanies, the first Latin American Court to have a robot assistant, https://www.supersociedades.gov.co/Noticias/Paginas/2018/Supersociedades-el-primer-juzgado-de- Am%C3%A9rica-Latina-en-contar-con-un-robot-asistente.aspx (Last visited: 12/03/2020).
[5] Digests I.I.I., Nam, ut eleganter Celsus definit, ius est ars boni et aequi: law is the art of the good and the equitable.
[6] Section 7 of the Swedish Arbitration Act: Any person who possesses full legal capacity in regard to his actions and his property may act as an arbitrator; Article 11(1) of the UNCITRAL Model Law provides: ‘No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties’; The New York Convention does not impose any requirement for arbitrators to be natural persons, and that Contracting States that introduce such a requirement might arguably violate their obligations under Article II of the New York Convention to recognise agreements to arbitrate (Gary B. Born, International Commercial Arbitration, Vol. I, p. 293 (2nd ed., 2014).
[7] Section 26(1) of the English Arbitration Act, 1996; Art. 1450 of the French Civil Code.
[8] Navigation Sonamar Inc. v. Algoma Steamships Limited (1994) XIX YCA 256; NJA 2009 p. 128 (Soyak II).
[9] The Nicomaquian Ethics, Aristoteles.

Fuente de Imagen:usbeketrica.com