Arbitration, in its simplest sense, refers to a procedure in which a dispute is submitted, on the parties’ agreement, to one or more arbitrators, who make a binding decision on the dispute.
In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court.
Halsbury’s law of England defines arbitration as a process by which a dispute or difference between two or more parties as to their mutual legal rights and liabilities is referred to and determined judicially and with binding effect by the application of the law by one or more persons (the arbitral tribunal) instead of by a court of law.
David Whale, on the other hand, holds the view that “Arbitration is a device whereby the settlement of a question, which is of interest for two or more persons, is entrusted to one or more other persons – the arbitrator or arbitrators – who derive their powers from a private agreement, not from the authorities of a State, and who are to proceed and decide the case on the basis of such an agreement.”
Despite the definitions highlighted above, what is clear is that there are four fundamental features of arbitration: an alternative to a national court; a private mechanism for dispute resolution; a selected and controlled by the parties; final and binding determination of parties’ rights and obligations.
Those are the key characteristics of arbitration as a form of alternative dispute resolution.
The Constitution, which is the land’s supreme law, mentions or endorses arbitration to solve disputes away from the court.
Article 159 of the Constitution vouchsafes that alternative dispute resolution mechanisms should be used and considered in order to render justice on time in tandem with natural justice principles.
The 21st century is defined by an array of issues, the key of them being the massive developments in the field of technology.
The numerous emerging technologies include Artificial Intelligence, Blockchain, Metaverse, Fintech, Cryptocurrency, Internet of Things, Automation, Robotics, Virtual Reality, and 3D Printing.
This list isn’t by any means exhaustive, unfortunately.
New emerging technologies are coming up each year and month to make work easier or fasten processes.
The ramifications of these emerging technologies have both adverse effects on the industry and positive results in equal measure.
Of concern to this paper is the use of artificial intelligence in arbitration processes.
According to Oxford Dictionary, Artificial Intelligence (AI) refers to the theory and development of computer systems able to perform tasks normally requiring human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages.
Simply put, Artificial intelligence is the simulation of human intelligence processes by machines, especially computer systems.
So, are there advantages of using artificial intelligence in the arbitration space?
I proceed to note some advantages in the subsequent paragraphs.
AI promises to render awards in lightning-quick time compared to arbitrators who take months or years to render an award.
These programs can also independently learn from past cases to produce even better.
Technology has the stunning ability to overhaul established practices and assumptions of human behavior.
The use of technology in arbitration increases efficiency, reduces costs, and permits the expansion of arbitration into new market segments awards than human arbitrators.
AI could also help the parties to a dispute choose their arbitrator by examining thousands of candidates’ track records in similar cases.
It could recommend drafting suggestions for arbitration clauses, helping clients and lawyers eliminate errors, identify blind spots and ensure their interests are protected.
AI’s fundamental value proposition lies in its ability to streamline administrative tasks while freeing up arbitrators and lawyers to focus on the parts of the process that require the most significant amounts of human judgment: assessing the facts, constructing arguments, and deliberating to determine outcomes.
Case management could also be automated or significantly streamlined with the aid of software, giving arbitrators more time to do what they do best: arbitrate.
Some practitioners have advocated for the use of AI in arbitration to help manage massive amounts of documentation due to an ever-growing demand for speed and efficiency.
A significant amount of legal research and document review has already shifted from libraries and client basement archives to online platforms.
The practice of international arbitration often entails grasping international law and several domestic legal systems simultaneously.
Moreover, parties submit to tribunals’ voluminous hard copies and electronic documents.
Accordingly, international arbitration is a document-intensive law field requiring counsel and arbitrators to spend countless hours on legal research and document review.
Despite this, counsel and arbitrators still read through innumerable pages, frequently containing irrelevant text in the hunt for exhaustive research/review.
This may not last as the use of AI for legal research and document review in the foreseeable future will cut the time necessary for such exercises from hours/days/months/years to seconds (in some instances to milliseconds).
Artificial Intelligence use in arbitration may be seen to provide numerous data. However, to come up with a complete argument, one must look at the demerits of the same.
Numerous practitioners and scholars have raised issues with the use of AI in arbitration.
I will only look at one controversial issue: the use of a non-human arbitrator to preside over arbitration issues.
On the one hand, one may argue that appointment of robots would be less vulnerable to challenge on the grounds of conflict of interest or bias.
Presumably, their decision-making process would be less likely to be tainted by the human weaknesses of bias, illogicality, or just having a bad day.
And there is obvious potential for reducing the time and costs of hearings.
On the other hand, it is deemed that robots have no feelings, empathy, or any idea of justice that goes beyond the processed data and precedents.
This may lead to correct but somewhat unfair decisions.
Moreover, justice is not just a simple algorithm but a real human virtue that, to be put into practice, needs a complex analysis of the situations and circumstances surrounding a specific case as well as of the facts and application of the law, to be able to strike a balance.
A human arbitrator lends legitimacy to the process.
In a nutshell, there are myriad benefits of using Artificial Intelligence in the Arbitration space.
Definitely, these benefits aim to make justice a reality and as fast as possible on an issue, unlike human arbitrators.
As well, there are flipsides on the same issue.
The best practical way to address this is to balance in the sense that AI is used where it is deemed to offer the best results, identical to the use of human beings.
The author is a law student at the University of Nairobi, Parklands Campus. His contact: kevinsjerameel@gmail.com
