Introduction
International Commercial Arbitration (ICA) has been criticized for being costly, requiring review of voluminous documents, lacking transparency— where decisions may not be easily explained or understood—and associated expenses of travel.[1] Legal professionals have used AI technology such as smart virtual assistants to streamline tasks, and improve client service.[2] However, can AI be applied in the arbitration process? Can AI analyze information in the same manner as arbitrators?[3]
In the first article of this series (accessible here) , we discussed the emergence of alternative modes of dispute resolution specifically focusing on the legal framework of ICA and the definition of AI. In this article, we set out how AI has been applied within International Commercial Arbitration (ICA). First, through documentation review designed programs that have been used to analyze and extract meaning from massive documentation. Second, AI has been used in the transcription of arbitration proceedings, greatly improving the speed of transcription. Third, the article explores whether a robot/AI can perform the role of an arbitrator and other complimentary roles that AI may play in assisting counsel. Furthermore, the article outlines the justifications for the incorporation of AI in arbitration. The limitations and challenges in the application of AI shall be dealt with in the third and final article in the series.
Artificial Intelligence (AI)
By way of recap, AI is the capability of a computer program to perform tasks or reasoning processes that are normally associated to the intelligence of human beings.[4] AI encompasses machine learning and deep learning, which disciplines involve the development of AI algorithms modeled after the decision-making processes of the human brain, that can learn from available data to make increasingly more accurate classifications or predictions over time.[5]
Current Applications of AI in ICA
Documentation review
ICA is a document intensive field that requires arbitrators and counsel to spend a significant time on research and document review.[6] AI technology such as natural language processing is currently in use in ICA to analyze massive documentation. Al is important for data analysis as it has the capability to analyze large amounts of data/information/facts— contracts themselves, the arbitration regulations, the applicable laws— related to an international commercial dispute.[7]
For instance, an AI program “Kira” is credited for helping lawyers reduce the time for reviewing contracts by 20-60 percent.[8] AI technology may also be used to assist with scrutinizing arbitral awards and sifting through thousands of pages of documents to highlight those relevant to the arbitral proceedings.[9]
Transcription of arbitration proceedings
Speech recognition technology is another type of AI technology that is currently in use within ICA. This technology is not only capable of recognizing different languages with impressive accuracy but also can be trained to identify voices of particular individuals.[10] This technology has been used to aid in transcription of arbitral proceedings. The American Arbitration Association adapted an AI-powered transcription service during the Covid19 pandemic in a bid to manage its surge in virtual hearings and parties described the service as 99% accurate, presenting a quicker turnover of transcripts (3-5 days) than a regular court reporter (10-14 days).[11]
The Future: Can AI or Robots take on the role of arbitrators?
Parties choose arbitration as the preferred mode of dispute resolution, because of the party autonomy that it offers. Party autonomy grants parties a degree flexibility to choose the seat of arbitration, choice of arbitrators, and the rules to be followed in the arbitration, among others. In these premises, a question may be posed “if the parties trust an AI powered arbitrator, who is to stop them from using it, particularly in arbitration where freedom of choice is paramount?”[12] Parties to an arbitration could have the option of replacing human arbitrators with Al or to appoint human arbitrators in combination with Al serving as a member on the arbitral tribunal.[13] The New York Convention does not expressly require an arbitrator to be human, even though it may be argued that at its commencement 1958, it is unlikely that the drafters foresaw the AI as a potential arbitrator.[14] In spite of the above, with the ever-rapid growth of AI, it is anticipated that artificially intelligent arbitrators in the form of robots will be available for appointment in the adjudication of arbitral disputes.[15]
Further, the traditional criteria of appointing arbitrators on the basis of their nationality, technical knowledge and legal expertise may no longer be relevant.[16] Instead, the parties will be at liberty to choose an AI program of given specifications of their choice.[17] It could be assumed from the above that the demise of the human arbitrator is imminent,[18] but arguments have also been made that this would depend on the requirement and the degree of necessity of human involvement; for instance, AI may not account for social and economic considerations that may be helpful in the determination of an international commercial dispute.[19]
Adjudication services
In the advanced stage, AI tools are reportedly poised to be used in the appointment of arbitrators, the preparation of the award and automated case management.[20] Currently arbitrators spend a lot of time drafting standard sections of the arbitration awards such as parties and procedural history,[21] and it is anticipated that AI technologies will take over the said roles which would afford arbitrators more time to concentrate on the arbitration role.[22] It is also expected that the role of tribunal secretaries will be taken over by AI support systems.[23]
Complementary services
It is predicted that AI technologies shall play other nominal roles in ICA, for instance by recommending drafting suggestions for arbitration clauses and helping lawyers to identify unclear areas in their cases and to cover them.[24] Clients may also apply the same to determine the competence of their legal teams by using the technology to evaluate past success rates and experience.[25] This would ultimately enhance the quality of legal services on offer.[26]
Justification for Use of AI
Costs and delay
In recent times, the arbitral process has become more formal, time consuming and costly which undermines its supposed benefits over litigation.[27] The delays and costs in the arbitral process have been attributed to complex arbitral disputes involving complicated procedural motions, discovery disputes and many hearing days,[28] which have caused wide dissatisfaction among arbitration users.[29] Using AI could increase efficiency, especially in the context of the volume of documentation to be analyzed.[30] Therefore, it is anticipated that parties to arbitral disputes are likely to opt for cheaper and quicker alternatives offered by AI.
Eliminating Human Bias
Human shortcomings in decision making are another reason to justify the appointment of robot arbitrators.[31] While questions of race, gender and religion are rarely in contention in ICA, arbitrators are not immune from the said biases and the possibility of a human arbitrator unconsciously putting more weight to the testimony of a witness or highly regarding the advocacy of counsel from a particular race or the opinion of a co-arbitrator from the same religion cannot be ruled out.[32] Al may provide decisions with greater consistency, eliminating some human errors, guaranteeing greater objectivity and thus helping to make the arbitration process more transparent, making decisions more intelligible for the parties.[33]
By automating the role of an arbitrator such biases are likely to be minimized. However, this assumes that artificial intelligence is neutral, yet, research has shown that algorithms tend to be biased on the basis of the data which they are trained on.[34] (This will be explored in our final article in the series).
Conclusion
As discussed above, AI is already in use within ICA. AI is expected to widen its reach even further in the near future but, it is still far from taking over the entire arbitration process.[35] In spite of the above justifications for the use of AI in ICA, its application has its own shortcomings. In the next article, we shall explore the limitations and risks that may arise from the application of AI in International Commercial Arbitration.
Contacts for publication
John F. Kanyemibwa, Team Leader
John is the Interim Chairperson of the International Centre for Arbitration & Mediation in Kampala (ICAMEK). He has over 30 years post qualification experience and has been ranked as a leading lawyer, “Band 1” by Chambers and Partners. John holds a Master of Laws (LLM) degree in Commercial & Corporate Law from the University of London, UK. He also possesses an LLM in Oil & Gas from the Uganda Christian University. He completed his Bachelor of Laws degree from Makerere University. He holds a Post Graduate Diploma in Legal Practice from the Law Development Centre.
Joel Basoga, Senior Associate and Head TMT,
Joel is a graduate of the University of Oxford. He holds an advanced master’s degree (LLM) in technology, competition and data privacy law from the University of Michigan, among others. He writes and advises clients regularly on legal aspects pertaining to technology. He routinely handles disputes in corporate finance, antitrust law/competition, debt management, international commercial arbitration, employment and technology related matters. He worked in the Dispute Resolution Department of Freshfields Bruckhaus Deringer in London, United Kingdom.
Sources
1] Maria Joao Mimoso, 'Artificial Intelligence in International Commercial and Investment Arbitration' (2023) 3 Int'l Inv LJ 156, 161.
[2] Irene Pietropaoli et al, ‘Use of Artificial Intelligence in Legal Practice’, British Institute of International and Comparative Law https://www.biicl.org/documents/170_use_of_artificial_intelligence_in_legal_practice_final.pdf accessed on 7th August 2024.
[3] Christine Sim, ‘Will Artificial Intelligence Take over Arbitration’ 14 Asian Int'l Arb. J. 1 (2018).
[4] Francesca Rossi, ‘Artificial Intelligence: Potential Benefits and Ethical Considerations’, European Parliament (2016) www.europarl.eu accessed on 1st August, 2024.
[5] IBM, ‘What is Artificial Intelligence (AI)?’, International Business Machines (IBM) https://www.ibm.com/topics/artificial-intelligence accessed 7th August 2024.
[6] Thomas Snider, Sergejs Dilevka and Camelia Aknouche ‘Artificial Intelligence and International Arbitration: Going Beyond E-mail’, Dubai International Financial Centre, (2018).
[7] Mimoso (n 1) 163.
[8] Philippe Billiet and Filip Nordlund, ‘A new beginning –artificial intelligence and arbitration, Korean Arbitration Review (2017) http://www.kcab.or.kr/jsp/comm_jsp/BasicDownload.jsp?FilePath=arbitration%2Ff_0.140140034811391261521536471556&orgName=04.+A+new+beginning+%26%238211%3B+artificial+intelligence+and+arbitration+%28Philippe+Billiet%2C+Filip+Nordlund%29.pdf accessed on 1st August 2024.
[9] Sadaff Habib, ‘The use of artificial intelligence in arbitration in Africa – inevitable or unachievable?’ International Bar Association https://www.ibanet.org/article/E62B06F6-7772-458A-A6E7-1474DB7136B5 accessed on 7th August 2024
[10] Snider (n 6).
[11] Kendel Enz, ‘AI-powered Transcription Revolutionizes AAA-ICDR Arbitration, Enhancing Efficiency and Cost-Effectiveness’ (15th May 2024) https://www.adr.org/blog/AI-powered%20Transcription%20Revolutionizes%20AAA-ICDR%20Arbitration#:~:text=Parties%20are%20provided%20an%20AI,deliver%20a%20high%2Dquality%20transcript. accessed on 7th August 2024.
[12] Lucas Bento, ‘International Arbitration and Artificial Intelligence: Time to Tango?’ Kluwer Arbitration Blog (2018) https://arbitrationblog.kluwerarbitration.com/2018/02/23/international-arbitration-artificial-intelligence-time-tango/ accessed on 7th August, 2024.
[13] Sim (n 3) 5.
[14] Ibid.
[15] Paul Cohen and Sophie Nappert, ‘The march of the robots’ Global Arbitration Review (2017) https://globalarbitrationreview.com/article/the-march-of-the-robots#:~:text=As%20technology%20develops%2C%20Paul%20Cohen,of%20arbitrators%2C%20counsel%20and%20experts. accessed on 7th August, 2024.
[16] Billiet and Nordlund (n 8).
[17] Ibid.
[18] David Allen Larson, ‘Artificial Intelligence: Robots, Avatars and the Demise of the Human Mediator’ Ohio State Journal On Dispute Resolution’(2010) https://open.mitchellhamline.edu/facsch/351/ accessed on 7th August 2024.
[19] Horst Eidenmüller & Faidon Varesis, ‘What is an Arbitration? Artificial Intelligence and the Vanishing Human Arbitrator’ (2020), https://ssrn.com/abstract=3629145 accessed on 7th August 2024.
[20] Bento (n 12).
[21] Snider (n 6).
[22] Bento (n 12).
[23] Ibid.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Thomas D Halket, ‘The Use of Technology in Arbitration: Ensuring The Future Is Available to Both Parties’, St John’s Law Review (2007) https://scholarship.law.stjohns.edu/lawreview/vol81/iss1/13/ accessed on 7th August 2024.
