ARTIFICIAL INTELLIGENCE AND ARBITRATION: AN INDIAN PERSPECTIVE By - Abhishek Singh

ARTIFICIAL INTELLIGENCE AND ARBITRATION: AN INDIAN PERSPECTIVE

Authored By - Abhishek Singh

INTRODUCTION

The term Artificial Intelligence (AI) was coined in 1956 by John McCarthy, a computer scientist. He defined AI as "making a machine behave in ways that would be called intelligent if a human were so behaving".[1]

Intelligence displayed by machines such as digital computers, computer-controlled robots, etc. to accomplish activities often associated with intelligent individuals is known as artificial intelligence (AI) or machine intelligence. In contrast to the natural intelligence displayed by people, artificial intelligence refers to the endeavour of constructing systems endowed with the intellectual processes characteristic of humans, such as the ability to reason, discern meaning, generalise, or learn from prior experience.

To paraphrase the late computer scientist and probable creator of the term "AI," John McCarthy, AI means "making a machine act in ways that would be termed intelligent if a person were so behaving" in 1956.

The legal industry is feeling the effects of and adapting to Artificial Intelligence (AI) technology, particularly machine learning and natural-language processing. Because of the rapid evolution of computing power in recent years, AI is altering the way attorneys approach their work and how they do business and communicate with clients.[2]

Experts feel that the moment has come to really study the use of the technology throughout the whole arbitration process to, among other things, increase efficiency and cut costs. Attorneys have been utilising AI-infused tools like Westlaw, LexisNexis, and Google for years.[3]

Artificial intelligence (AI) is widely used in a variety of sectors, including manufacturing, healthcare, advertising, etc., in an effort to reduce the prevalence of human error. At the crossroads of AI and law is a subdiscipline devoted to the application of AI and other forms of advanced computer technology in the legal sphere. The Law and Artificial Intelligence.[4] Some institutes/ organizations like Lex Machina, Arbilex, Arbitrator Research Tool (ART) and Arbitrator Intelligence are using AI for the purposes of arbitration.[5]

In this contribution, we'll look at how AI may be used in the context of arbitration. Artificial intelligence (AI) is being used in the legal field for two main purposes: first, it aids the lawyer by making tedious duties like paperwork easier, and second, it aids the client by reducing the cost of hiring a lawyer.

INTERNATIONAL ARBITRATION AND TECHNOLOGY

The use of AI has advanced tremendously during the past two decades. The passage of time has shown that no profession is immune to automation, not even that of arbitrators. The advent of AI poses a challenge to the international arbitration industry because it can enable the development of systems that are just as capable of calculating information as human arbitrators.

When opposed to human arbitrators, who can take months or even years to issue a ruling, AI has the potential to provide decisions in record time. It's possible that these systems can eventually outperform human arbitrators by autonomously learning from precedent. AI has a long way to go before it can fully replace human arbitrators, but there are numerous ways in which technology can improve and support international arbitration. Thus, thankfully, there appears to be a genuinely human component to conflict settlement.[6]

“Technology has the stunning ability to overhaul established practices and assumptions of human behavior. The use of technology in arbitration increase efficiency, reduce costs and permit the expansion of arbitration into new market segments.”[7] “Despite traditional resistance caused by lawyers’ conservativeness to embrace new technologies, technology is slowly creeping into legal practice and even international arbitration.”[8] Legal research databases that incorporate artificial intelligence, videoconferencing, electronic recordkeeping, and digital document preparation tools are all now commonplace. There has been some progress, to be sure. Nowadays, most discussions between parties and arbitrators are conducted electronically, including the exchange of pleadings. Technology is also used extensively to manage and present documents, for instance, the NetCase initiative[9] at the ICC which is a virtual case room that provides a secure online environment for case filings for those who agree to use it. Memorials that lead to online exhibitions are another fantastic development. AI, or machine learning, is the next logical step.

Similar to other areas of the white-collar sector, artificial intelligence (AI) may prove to be the game-changer in international arbitration. Artificial intelligence (AI) has the potential to aid with case management and efficiency diagnostics in the arbitration process due to its capacity to mimic and augment human cognitive skills, automate time-consuming but easy activities, and handle enormous amounts of data.[10]

By analysing the performance histories of hundreds of potential arbitrators in instances comparable to the one at hand, AI might also aid the parties in a disagreement in selecting an arbitrator. To aid clients and attorneys in avoiding pitfalls, spotting blind spots, and crafting arbitration terms that protect their interests, it may provide drafting ideas. The primary benefit of AI is that it allows arbitrators and attorneys to spend more time on the areas of the procedure that need the most human judgement, such as evaluating evidence, formulating a defence, and reaching a verdict.[11]

Arbitrators might have more time to do what they do best by using tools to automate or dramatically speed case administration. Some new companies are looking to shake up the legal sector by providing case management and forecasting services to the international arbitration sector.[12]

“Some practitioners have advocated for the use of AI in arbitration to help in the management of massive amounts of documentation due to an ever-growing demand for speed and efficiency.”[13] The traditional locations for legal work, such as libraries and client basement archives, are being replaced by digital platforms for doing research and reviewing documents. Understanding international law and several national legal systems is generally necessary for successful practise in international arbitration. In addition, parties often submit several paper and digital documents to the courts.

Thus, attorneys and arbitrators in international arbitration must devote endless hours to legal research and document examination. Yet, in their pursuit of a thorough assessment, attorneys and arbitrators must sift through mountains of paperwork, most of which is superfluous. It's possible that this won't persist forever, since the use of AI in legal research and document review has the potential to drastically reduce the time spent on these tasks from today's hours, days, months, and years to just seconds in the near future (in some instances to milliseconds).[14]

APPOINTMENT OF MACHINES AS ARBITRATORS

In various forms of conflict resolution, AI techniques are already commonplace, often with the goal of improving productivity. Disclosure management software, for instance, may now utilise predictive coding and natural language processing to extract and communicate genuine meaning from documents, rather than just doing keyword searches. Likewise, AI techniques may be used to locate and evaluate credible sources and evaluate proposals. The harsh reality is that when it comes to processing enormous volumes of documents or data, automated technologies can do it far more rapidly, efficiently, and precisely than any person. Even the process of arbitration can be affected by rapidly developing technologies. With the dominance of technology over humans, the most pressing issue is whether or not "parties are ready to select robots as arbitrators."

Cohen and Nappert argue that we are on the cusp of a fundamental transformation by AI because users are increasingly dissatisfied with the time and cost of proceedings and the 'business as usual' indifference of the arbitral community, while at the same time, technology is becoming available and affordable to address user grievances about the process. They also argue that the parties may choose between having an AI arbitrator make all of the judgements, having a human arbitrator make some of the choices, or having human arbitrators confer with AI to make sure they're making the right call.[15]

The use of AI in international arbitration has been continuously evolving, and its use by lawyers has risen steadily. For instance, Dispute Resolution Expert Manager (DRExM)[16] has, lately, been used in Egypt to resolve construction disputes, because of its ability to recommend the most appropriate dispute resolution technique, depending on the nature of the dispute, the evidence, and the relation between the parties.

Several concerns emerge when considering the possibility of machine arbitration. The key issue is whether or not this could be done within the present legal system. It should be stated up front that the employment of machine arbitrators is not either forbidden nor permitted by most national legislation. Conversely, the arbitration agreement is solely defined as the filing of a dispute to the arbitrators in every section addressing the arbitration agreement's legality. For their part, the definitions of "arbitral tribunal" merely state that parties can choose between appointing a single arbitrator or several ones. Hence, this line of reasoning supports the legality of both an arbitration agreement appointing a computer arbitrator and a tribunal composed entirely of machines.

Nonetheless, arbitrators are referred to or required to function as "humans" under the Arbitration Acts of Brazil, Ecuador, Peru, and Colombia. Arbitrators in Peru must be "individuals with full capacity to execute his civil rights," according to the country's Arbitration Act.[17] Nevertheless, the Model Law and the laws of Chile, Colombia (international arbitration), and Mexico do not mention arbitrators by name and do not mandate that they be human or able to enjoy their civil rights. In these nations, there appears to be a legal loophole that may be used by users to appoint a computer as an arbiter.

The need of an arbitrator's being a natural person is assumed without any explanation. It seems to be taken for granted as though it were a necessary given. Arbitrators are generally seen as having a personal mandate and mission[18] and are personally accountable to the parties, and it is widely recognized – not least in the debate about the role of tribunal secretaries – that the core tasks of an arbitrator cannot be delegated to others.[19]

Thus, in many jurisdictions, “it is generally assumed that a sole arbitrator is a natural person who is personally accountable for his or her actions and decisions as highlighted above, whereas in the case of a three-person tribunal, there are three such natural persons, and here the internal dynamics and deliberations between the different members of the tribunal are often of decisive importance. Parties typically want a say in choosing a member of the tribunal because they want their preferred candidate to have a significant impact on the proceedings.”[20]

An artificial arbiter has a lot going for it. Appointments made by machines, for instance, would be harder to dispute on the basis of prejudice or conflict of interest. Their reasoning would presumably be less influenced by the fallibilities inherent to humans, such as prejudice, illogic, or just a bad day. However, it is clear that there is room for improvement in terms of both hearing duration and expense.

Despite the mechanical manner in which many international arbitrations appear to be processed, its adjudicative function remains essentially social and political because the basis of law, including transnational legal principles practised in international arbitration between parties from different jurisdictions, is fundamentally social and political.

One further thing that stands in the way of robots taking over the role of arbiter is the fact that computers, in theory, don't have emotions, empathy, or a concept of justice beyond what can be gleaned from data processing and past cases. This might lead to judgements that are technically valid but largely biassed. In addition, justice is not only a formula; rather, it is a genuine human virtue that, in order to be put into practise, necessitates a nuanced examination of the facts and application of the law in a given instance. When a real person acts as the arbitrator, everyone can feel more comfortable with the outcome. During mediation, the mediator's charisma and credibility are equally as important to the success of the process as any other factor.

Humans will always have an advantage over machines when it comes to deciding issues of right and wrong in international arbitration.[21] Hence for the time being, the likelihood of a robot to be able to exercise a virtues of these kind, and to do away with human input completely in dispute resolution appears to be remote.

LEGISLATIVE FRAMEWORK: A

WHEEL IN MOTION

Even though the government has been encouraging the development of AI and its subsequent uses, there are no AI-specific legislation in India at the present time. This also holds true for Big Data and Machine Learning. By "consistently delivering home-grown pioneering technology solutions in AI as per its unique needs to help leap-frogging and catch-up with the rest of the world," the government hopes to capitalise on being a latecomer to the artificial intelligence industry by publishing a National Strategy of Artificial Intelligence in 2018. The development of rules and regulations for AI is already underway.

In its most recent paper, titled "Designing the Future of Dispute Resolution (the ODR Policy Strategy for India), 2021," NITI Aayog aims to do just that. The committee acknowledged the merits of ODR and the contribution of AI in that direction. The Study acknowledged that AI will be useful in creating India's ODR system. The use of artificial intelligence (AI) in creating this system might have several positive outcomes, such as the removal of human bias from the conflict resolution procedure. According to the paper, the purpose of ODR is to replace the current dispute resolution framework. Zhejiang's ODDRP model is one such system; it uses a wide range of ICT (Information and Communication Technology) resources, such as artificial intelligence (AI), cloud computing, etc. Parallel to the introduction of online docking mechanisms in litigation and conflict settlement, AI has been employed to provide an effective offline docking method.

The legal system has been in the forefront of pushing for fundamental shifts in how online disputes are settled. The eCourts Mission Mode Project has had a number of successful rollouts. There is now an electronic version of the Lok Adalat available online. Via the SUVAS (Supreme Court Vidhik Anuvaad Software), the Supreme Court of India may translate English judgements, orders, and judicial documents into nine regional languages.

There is still a lot of room to incorporate technology into the legal system, for as by creating blockchain-driven arbitration systems for writing smart contracts. Resolution based on blockchain arbitration can be more easily administered in smart contracts written in computer code because of the use of technology to automate enforceability via the transfer of rights and duties. In general, blockchain contracts are enabled under the UNCITRAL Convention on Electronic Communications in International Contracts (2007) and the UNCITRAL Electronic Model Law on Electronic Commerce (1996). The 2007 Agreement provides guidance on on-chain arbitration in Articles 6 and 18, which specify the use of electronic data records and electronic transactions within the arbitration procedure. Concerns about privacy and fairness persist generally in the application of this approach.

ARTIFICIAL INTELLIGENCE: A RATIONAL APPROACH IN ARBITRATION

Currently, “AI helps in reviewing enormous amounts of data which is involved in any arbitration and then segregating the relevant data and information which is beneficial for that particular case.”[22] This is helpful for assessing the complicated nature of arbitration disputes and saving a lot of time and money. Artificial intelligence can also be used to simplify the process of selecting an arbitrator.

Unlike an AI arbitrator, a human arbiter can be affected by biases of their own thinking. Errors in analysis, evaluation, translation, and decisions are also less likely to occur due to the AI's rigorous adherence to the data it is given, rather than any influence from human emotion.[23]

“AI can also be used in determining the relevance, admissibility and discovery of evidence. In e-discovery, AI has proved to be quite successful wherein predictive coding was employed for efficient document production and review.”[24] “The AI system is considered as precise, systematic and actual in nature. As per the 2016 study of predictability of ECHR and a decision given by the Supreme Court of the United States, the precision in AI affiliated arbitrations was found to be 79% and 70.2% accurate respectively.”[25]

ARTIFICIAL INTELLIGENCE IN ARBITRATION: A DISRUPTIVE MYTH

Although the use of AI in arbitration has several benefits, however, “it has many drawbacks as well which makes the premise of making arbitrations completely AI dependent, a myth. In arbitration, there are several laws involved and different types of practices which makes the use of AI in arbitration a problematic affair.”[26] Further, “in arbitration the cases are decided as per facts and circumstances of each case and precedents are not heavily relied upon. The involvement of different types of experts and specialists cannot be substituted by the use of AI in arbitration as the AI is based on the ‘inductive reasoning’ in comparison to ‘deductive reasoning’.”[27]

Also, “the use of AI requires a huge quantum of investment because conducting arbitration by AI involves a lot of training which in turn requires huge capital.”[28] Since that AI operates on the basis of algorithms, which are created by software, and which are themselves vulnerable to hacking, there are also privacy problems. Furthermore, since AI comes at the award by probabilistic inferences, it will not present a justification for arriving at the conclusion, which is a key aspect of the arbitration. However, since AI operates via an algorithm and because of the data input into the system, it cannot adhere to the due process of natural justice, equity, and conscience, which is followed during the arbitration process.[29] Therefore, AI cannot substitute but only supplant the existing system.

CONCLUSION

With the help of ADR, the delivery of courts has been reoriented from a location to a service. With the proliferation of readily available internet, advances in artificial intelligence, big data, etc., the framework has been prodded to become a more approachable, formidable, intelligent, ubiquitous, and robustly constructed outcome-oriented one.

The legal community is now wrestling with the question of how to incorporate AI into the practise of law, since the field of AI is experiencing a period of upheaval. The ability to fully replace attorneys, specialists, and arbitrators with computers is not yet available, although AI can assist in certain aspects of the legal process. For the foreseeable future, at least until robots can match human judgement and compassion, human arbitrators will play a crucial role in the arbitration process. Yet, practitioners of arbitration would do well to anticipate and welcome the shifts that AI would bring to the arbitration landscape. In the long term, AI will help arbitrators conduct their cases more effectively, efficiently, and possibly even cheaply.

In addition to its use in the law, artificial intelligence has many other applications. It's a huge deal, and it's going to completely change the judicial system. To bring about change, it is necessary to exert pressure on preexisting notions. The potential for AI to radically alter the practise of law is what sets it apart. Investment in artificial intelligence technology seems like a no-brainer for the international arbitration community.[30]

Arbitration Legal professionals are obligated to provide clients with dispute resolution services backed by a battery of AI-powered applications. They are tasked with reimagining future connections between service providers and their customers in a way that is mutually beneficial. New technical and procedural innovations can have a significant impact on the cost and efficiency of arbitration proceedings, and arbitral institutions, tribunals, and practitioners have a duty to take the lead in implementing these advances.[31]

This assumption has been called into question by the technological revolution that has facilitated communication, which raises the question of whether or not effective communication and, by extension, the resolution of disputes, can occur without the need for a physical gathering of the parties involved.

This assumption has been debated and analysed in depth in light of the present epidemic and constraints thereto. By doing an in-depth analysis, the authors arrive at the conclusion that existing offline dispute resolution methods can benefit from the addition of AI systems. Companies like Smartsettle and Cybersettle have already begun implementing cutting-edge methods like blind bidding or algorithm-driven resolutions, demonstrating that ODR has room to develop and expand thanks to advances in artificial intelligence.

It would not be out of place to make a reference to William Gibson's famous quote, "The future has already arrived; it is just not evenly distributed as of yet," in light of the research that culminated in this contribution and upon observing the COVID-required adjustments that have been made possible via the internet and developments in AI to bring access to justice a little closer to home.

Using data-driven concepts of openness and accountability, institutions and regulators must now assess how fair distribution may be accomplished even in the arena of dispute resolution through the application of technologies like artificial intelligence.

Artificial intelligence (AI) has made its first, promising inroads into the field of international arbitration, with the hope of reducing workloads and facilitating the work of the numerous participants in this field. The selection of arbitrators has traditionally been a subjective process based on personal references, but technical advancements in the form of arbitrator intelligence aim to replace this with a more objective, data-driven method. With the advent of AI, case management has also improved tremendously.

[1] Professor John McCarthy, 'What is AI/ Basic Questions', (http://jmc.stanford.edu/artificial-intelligence/whatis-ai/index.html.) accessed on 13th February, 2023.

[2] Judy Sobowale, ‘How artificial intelligence is transforming the legal profession’ available at < http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_the_l egal_profession> accessed on 13th February, 2023.

[3] Megan Turchi, ‘The future of International Arbitration may not be AI’ available at accessed on 13th February, 2023.

[4] A.R. Lodder and J. Zeleznikow, "Developing an Online Dispute Resolution Environment: Dialogue Tools and Negotiation Systems in a Three Step Mode", The Harvard Negotiation Law Review (2005) 10, pp. 287338.

[5] Ibid.

[6] Christine Sim, ‘Will Artificial Intelligence take over arbitration’ available at < http://www.kluwerarbitration.com/document/kli-aiaj-140101?q=artificial%20intelligence> accessed on 13th February, 2023.

[7] Ljiljana, B., ‘International commercial arbitration in cyberspace: Recent developments’ Nw. J. Int'l L. & Bus. 22 (2001): 319, p. 345.

[8] Gabrielle Kaufmann-Kohler, Thomas Schultz, ‘Online Dispute Resolution: Challenges for Contemporary Justice’ (Kluwer Law International, 2004) p. 27

[9] https://iccwbo.org/content/uploads/sites/3/2016/11/NetCase-Pamphlet-English.pdf accessed on 13th February, 2023

[10] Megan Turchi, ‘The future of International Arbitration may not be AI’ available at accessed on 13th February, 2023.

[11] Ibid.

[12] Lucas Bento, ‘International Arbitration and Artificial Intelligence: Time to Tango’ available at accessed on 13th February, 2023.

[13] Hogan Lovells, “The future of arbitration: New technologies are making a big impact — and AI robots may take on “human” roles,” available at accessed on 13th February, 2023.

[14] Camelia Aknouche, ‘ Artificial Intelligence and International Arbitration: Going Beyond Email’ available at accessed on 13th February, 2023.

[15]Paul Cohen and Sophie Nappert ‘The march of the robots’ available at accessed on 13th February, 2023.

[16]https://www.sciencedirect.com/science/article/pii/S2090447915000684 accessed on 13th February, 2023.

[17] Paulius Docka, ‘How Hot-Tubbing Might Affect Technology Related Arbitration’ available at accessed on 13th February, 2023.

[18] Constantine Partasides, ‘The Fourth Arbitrator? The Role of Secretaries to Tribunals in International Arbitration’ (Arbitration International, Vol. 18, No. 2 (2002)

[19] Article 24(2), SCC Rules, 2017.

[20] James Hope, ‘Can a Robot be an Arbitrator?’ available at < http://www.kluwerarbitration.com/document/kli-ka-calissendorff-2019-ch07?q=artificial%20intelligence accessed on 13th February, 2023.

[21] Christine Sim, ‘Will Artificial Intelligence take over arbitration’ available at < http://www.kluwerarbitration.com/document/kli-aiaj-140101?q=artificial%20intelligence> accessed on 13th February, 2023.

[22] Lucas Bento, 'International Arbitration and Artificial Intelligence: Time to Tango' available at (http://arbitrationblog.kluwerarbitration.com/2018/02/23/international-arbitration-artificial-intelligence-time-tango/) accessed on 13th February, 2023.

[23] Judy Sobowale, 'How artificial intelligence is transforming the legal profession' available at (http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_the_legal_profession) accessed on 13th February, 2023.

[24] Brown v. BCA Trading Ltd, [2016] EWHC 1464 (Ch).

[25] UCL, 'AI predicts outcomes of human rights trials', (October 24, 2016), available at  https://www.ucl.ac.uk/news/2016/oct/ai-predicts-outcomes-human-rights-trials.; Communications of the ACM, 'Artificial Intelligence prevails at predicting Supreme Court decisions', (May 5, 2017), available at https://cacm.acm.org/news/216852-artificial-intelligence-prevails-at-predicting-supreme-courtdecisions/. accessed on 13th February, 2023.

[26] Hogan Lovells, "The future of arbitration: New technologies are making a big impact - and AI robots may take on "human" roles," available at (https://www.hoganlovells.com/en/publications/the-future-of-arbitration-ai-robots-may-take-on-human-roles) accessed on 13th February, 2023.

[27] Ibid.

[28] Camelia Aknouche, 'Artificial Intelligence and International Arbitration: Going Beyond Email' available at (https://www.tamimi.com/law-update-articles/artificial-intelligence-and-international-arbitration-going-beyond-e-mail/) accessed on 13th February, 2023.

[29] Available at (https://taxguru.in/corporate-law/artificial-intelligence-ai-effects-arbitration.html) accessed on 13th February, 2023.

[30] Philippe Billiet, Filip Nordlund, ‘A new beginning – artificial intelligence and arbitration’ availableat accessed on 13th February, 2023.

[31] Ibid.