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Can technology make arbitration too easy?

Can technology make arbitration too easy?

The evolution of technology has tremendous potential to increase the quality and efficiency of arbitration. Each possibility comes not only with new opportunities, but also with new potential risks. Below, I look at a few new technical opportunities and the challenges they could bring.

Consider the appointment process, so central to the value and benefit of arbitration over other forms of dispute resolution. Proposing the right arbitrator for a case is already a sophisticated science, with several digital tools and databases available. Natural evolution of these tools would include big data searches and artificial intelligence (AI) to help parties find the perfect arbitrator. It could also find new arbitrators which might otherwise be overlooked, helping diversity in arbitration. All good so far. But one short step further, technology may provide profiling, including family or personal background from social media, to assess who is most likely to have an unconscious bias that would help your case. This begs the question: With every perceivable data point about an arbitrator available at the click of a button, are there limits to what should be fair game to look at? If yes, how do we safeguard that?

Once arbitrators are appointed, there is a wealth of technology to assist in the arbitral proceedings.  As discussed in a previous SCC Forecast, AI may help arbitrators rule on a case, or even go as far as replacing the human decision-maker altogether in less complicated cases. While AI can remove the risk of bias and increase efficiency and access to justice, it is also fraught with issues: With broader adoption of AI in judicial decision-making, which aspects of the human-brain analysis are lost? And what would be the impact on jurisprudence and legal development?

Technical tools, ranging from simplified file sharing, to the ability to automatically create enormous amounts of text and documents, to AI analysis of both content and context of material, make it possible to produce and process more and more data. This can allow parties in a dispute a better opportunity to present their case and arbitrators to analyse the material to reach a fair outcome. At the same time, however, these tools may undermine arbitration by making it so cumbersome or expensive that it prevents parties from bringing smaller claims, and parties with limited resources may be de facto shut out from arbitration. Can the increased availability of tools bring an unbalance to a case?

Virtual hearing facilities are often requested and would go a long way to increase efficiency and cut both cost and environmental impact of international arbitration. But when hearings are virtual, are there values that might be lost? Outside of the obvious intangible value of the human encounter, there is a strain of technology we should keep an extra eye on in this regard – that which allows for the creation of a very convincing but entirely fake virtual world. Technology can create faces of people who have never existed, Google Assistant can create a fake conversation that can pass for human speach, and “deepfake” can create a fake video evidence. Almost every aspect of human interaction can be faked, except the face-to-face meeting.

These are just some examples of areas where technological advances are allowing for remarkable opportunities, and in the process potentially shifting the balance or removing the safeguards in place today. We may be positive or hesitant to these developments, but either way they are happening. We need to tirelessly take inventory of which new opportunities that arises, discuss the balance we want to strike between new technology, privacy and security, and we need to consider what safeguards may be necessary to protect the integrity of arbitration in the future.  

 

Lise Alm

Head of Business Development, SCC

Second Annual Swedish Law Day in Russia

Second Annual Swedish Law Day in Russia

On 5 December 2019 in Moscow, the SAA and the SCC are co-organising the event, that aims to build on and expand the ties between the Swedish and Russian legal community by creating a platform for an open exchange of ideas and experiences.

Sweden is recognised globally for its neutrality, transparency and consistent adherence to the rule of law. Swedish law has provided a neutral, predictable and cost-effective foundation for international trade and commerce. The choice of Swedish law has been, and continues to be common in international contracts involving Russian parties. Over the years, large number of Russia-related contracts have been governed by Swedish law, and as a result, many Russian legal practitioners have become exposed to Swedish law and developed ties with their Swedish counterparts.

The second annual Swedish Law Day is co-organised by the Swedish Arbitration Association (SAA) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). The agenda features renowned legal practitioners from both Sweden and Russia, for example Lise Alm, Ilya Nikiforov, Robin Oldenstam, Carl Hugo Parment, Ulf Hårdeman, Fredrik Norburg, Ginta Ahrel, David Ackebo and Johan Sidklev. “Digitalization and cyber security at the SCC”, “key issues under Swedish substantive law” and “supply agreements under Swedish law” are topics for a panel discussion, presentation and a workshop highlighting important and topical Swedish commercial law issues.

Swedish Law Day is a meeting place for Russian legal practitioners who want to get a better understanding of Swedish commercial law and network with their Swedish counterparts.

 

Read the agenda here

Register here

Just Published: ICLG's Investor-State Arbitration 2020

Just Published: ICLG's Investor-State Arbitration 2020

The guide includes an updated overview of SCC practice and procedure in investor-state cases, contributed by James Hope, a former member of the SCC Board. The chapter is entitled “Investor-State Arbitration Before the SCC”.

James Hope writes “The SCC will continue to work hard to promote the ISDS cases, and to ensure that the cases before it, are administered and run as well as possible. At a time when others question or even threaten the existence of ISDS arbitration, such work is as important as ever.

Read the chapter here

Read the ICLG to: Investor-State Arbitration

Read more about ICLG

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