Use of AI-Based Technologies in International Commercial Arbitration

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Abstract

This paper deals with the involvement of Artificial Intelligence (AI) based technologies in international commercial arbitration. Specifically, this concerns both their assistance in the arbitral processes and the challenging question of replacement of human arbitrators with AI-arbitrators. Regarding the second question, the current normative framework on international commercial arbitration, notably the provisions of UNCITRAL Model Law on International Commercial Arbitration and the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards on the requirements as to arbitrators, the arbitral tribunal and public policy (ordre public) is analysed.

It is submitted that depending on the law of the requested State, public policy may act as an important ground to reject the recognition or enforcement of the arbitral award if given by AI-arbitrators with differing reasons. For instance, the award is not given by natural persons, or it may be that the impartiality and independence of AI-arbitrators is questioned because of data-drivenness of AI, or that the arbitral award lacks sufficient reasoning. It can be argued that even where it is accepted that other provisions of the New York Convention can be interpreted, and possibly be enlarged, to allow the use of AI technologies, public policy requirements might still act as an important barrier for the recognition and enforcement of arbitral awards given by AI-arbitrators.

Although future relationship of AI and international commercial arbitration is not known, we believe that if assistance of AI to judicial processes in general, and to arbitral process in particular, proves to contribute by lessening the workload, which would speed up the legal process, minimizing the costs and the risks of human mind efficiently. As a result, this could establish a demand for a new regulatory framework for AI-arbitrators to replace human arbitrators. An important consideration in this regard would be the willingness of the parties to include AI systems in the resolution of their dispute by arbitration. At that point in time the question shall arise on whether this can be achieved by the amendment of the current instruments or their replacement with new ones.

We believe that UNCITRAL Model Law may be amended to adjust itself to new technologies, as was the case in 2006 to conform the practices of international trade. The New York Convention is resistant to change, proposing any such amendment may not be a realistic option. Alternatively, the adoption of soft-law instruments (such as UNCITRAL recommendations on the application of the New York Convention or amendments on the UNCITRAL Secretariat Guide on the Convention) may rather be preferred to adjust the Convention to the use of new technologies

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2021-06-30

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Refereed Articles