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.
Head of Business Development, SCC