Artificial intelligence (AI) continues to reshape the arbitration ecosystem, rapidly transforming routine tasks and enhancing predictive technology. Algorithms are assisting lawyers in various procedural and strategic activities. This shift brings technology-assisted arbitral awards closer than ever. However, it also raises critical questions about the integrity of arbitral justice: What responsibilities do arbitrators bear regarding the fairness and output of AI applications? Should arbitrators be compelled to adhere to specific AI ethical guidelines and perform supervisory roles? At present, discussions on these matters remain opaque and entwined in broader conversations about AI transparency and accountability. It is, however, prime time to discuss the role of arbitrators in this ‘Age of AI’.
Arbitrators will undoubtedly face the challenge of navigating the complexities introduced by AI, especially with new AI legislation being enacted worldwide (for example, the EU AI Act). Arbitrators must therefore foster a robust understanding of the technology among the parties and the trade-offs involved in AI integration within arbitral proceedings.
Practical considerations for AI integration
The pursuit of fairness remains the cornerstone of arbitral justice in the Age of AI. However, how can arbitrators ensure ‘justice’ in this evolving landscape? Are their responsibilities confined to the arbitration mandate, or must they also uphold societal values of ‘AI justice’? If arbitrators are to adhere to AI ethical standards, which framework(s) ought they seek to embrace? Should parties insist on compliance with these standards?
In addressing these questions, arbitrators must first ascertain the use of AI tools in the arbitral proceeding: is AI usage addressed in the arbitration agreement or submission agreement? Is the use of AI permitted or restricted under the applicable laws and regulations? Assuming that the arbitration agreement is silent on AI usage, or even if the agreement has addressed it, a beneficial starting point for arbitrators is to encourage parties to establish clear protocols and guidelines for integrating AI into arbitral proceedings. This governance framework should be developed collaboratively, outlining disclosure requirements, discussing the fundamentals of AI usage, and committing to ongoing education in this rapidly evolving field.
AI governance framework
Arbitrators may propose incorporating AI usage in the terms of reference, Procedural Order No. 1, or as a bespoke procedural order or protocol. A clearly defined AI clause or governance framework could enhance transparency and empower parties to make informed decisions about the risks they are willing to assume. Notably, arbitration stakeholders such as the Silicon Valley Arbitration and Mediation Center (here), and the Chartered Institute of Arbitrators (here), have launched AI guidelines to assist parties in navigating this complex terrain. Parties may consider adhering to these guidelines or using them as inspiration for a tailored AI clause or governance framework.
If parties are open to further regulation, they might include provisions to grant the arbitral tribunal the authority to veto inappropriate AI applications, impose cost consequences or other sanctions for non-compliance, and issue AI disclosure and unless orders. Transparency regarding the AI tools employed by arbitrators and counsel is essential. Arbitrators should encourage open dialogue about the AI tools in use, ensuring that necessary disclosures are clear and detailed for effective risk management. If parties prefer less stringent regulation regarding AI tools, early discussions should occur to facilitate effective risk management and assessment. However, parties must exercise careful balance in governance and communication. If disclosure requirements become overly rigid, they may lead to excessive transparency, resulting in inefficiencies, such as repeated disclosures or disputes over every AI tool employed. Definitions of AI tools and AI usage can vary among parties; hence, addressing these issues from the outset is vital.
Conclusion
Arbitrators are uniquely positioned to drive positive changes in arbitral proceedings by collaborating with parties and stakeholders to ensure that AI enhances the arbitration ecosystem. Despite the challenges that may lie ahead, proactive engagement from arbitrators will be instrumental in strengthening the relevance and resilience of arbitral justice in our ‘Age of AI’.