de Westgaver: Significant benefits
Arbitrators who use artificial intelligence (AI) in their decisions have been warned against “cognitive inertia” in new guidelines from the Chartered Institute of Arbitrators (Ciarb).
To limit the “perils” of cognitive inertia and “affirmational authority bias”, it said arbitrators “need to assume responsibility for the outcome and rationale of their decisions”.
Ciarb said AI had the potential to “significantly enhance the arbitral process in terms of efficiency and quality” and a “vast range” of AI tools were available.
These tools had the potential to go beyond legal research and data analysis, it said, and provide predictions of potential case outcomes and insights on the likely response to certain procedural strategies or arguments. These could “increase efficiency and predictability of outcome”.
However, ensuring transparency and “exercising caution regarding ethical, procedural and technological concerns” was “of paramount importance”.
In its Guideline on the use of AI in arbitration, Ciarb said questions relating to bias took on a “distinct character” when contemplating the use of an AI tool by arbitrators.
“In this context, potential algorithmic bias may emerge due to the selection of a specific dataset and the configuration of a particular algorithm.
“Apart from the bias issue and its implications for the objectivity of the information supplied to arbitrators via an AI tool, there is also the peril of affirmational authority bias and cognitive inertia that could impact arbitrators who rely on AI.”
The extent to which risks relating to impartiality or independence arose would “obviously vary widely” depending on how certain tools were used by arbitrators.
“Using an AI tool to search for evidence on an issue within the case documents submitted by parties carries a different (and likely far lower) risk than use of an AI tool to decide an issue in dispute.”
Ciarb said other risks included confidentiality and impact on the environment. “AI tools tend to require a high level of energy and therefore the use of AI in arbitration and its potential benefits may need to be considered in light of any impact of proceedings on the environment.”
Claire Morel de Westgaver, chair of the Ciarb AI guideline drafting committee and a partner in the London office of Spanish firm Ontier, commented: “AI is expected to have a transformational effect on the legal profession and international arbitration is no exception. The benefits of using AI tools in arbitration are significant.
“Assessing the implications of the use of AI in arbitration while also identifying any risks that may need to be addressed is of paramount importance to safeguard due process rights and the integrity of arbitral proceedings.”
Mohammed Talib, a partner at Pinsent Masons, said on the firm’s website: “The guidelines highlight party autonomy as the key touchstone in arbitration: Parties may agree on whether and how AI is used in arbitration, subject to applicable laws and regulations.”
Mr Talib said the guidelines were clear that arbitrators “must not relinquish decision-making powers” to AI.
“Arbitrators should independently verify AI-generated information and maintain critical perspective. They assume full responsibility for all aspects of an award regardless of any AI assistance they may have obtained.”
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