India: Artificial Intelligence In The Field Of Arbitration: A Rational Approach Or A Disruptive Myth

The future of justice should be conceptualized beyond the confines of brick and mortar.¹

INTRODUCTION

The term Artificial Intelligence (AI) was coined in 1956 by John McCarthy, a computer scientist. He defined AI as "making a machine behave in ways that would be called intelligent if a human were so behaving".²

AI is tremendously used in some industries like manufacturing, healthcare, advertisement etc. to minimize human error in the said field, and, at the intersection of Artificial Intelligence on the one hand and law on the other lies a field dedicated to the use of advanced computer technology for legal purposes - Artificial Intelligence and Law.³ Some institutes/ organizations like Lex Machina, Arbilex, Arbitrator Research Tool (ART) and Arbitrator Intelligence are using AI for the purposes of arbitration.⁴

This contribution focuses on the utility of AI in the field of arbitration. Broadly, the use of AI in law is two-fold: first, it helps the legal professional by making cumbersome tasks like paper work comparatively simple, and, second, it helps the client by making the legal consultancy service inexpensive.

LEGISLATIVE FRAMEWORK: A WHEEL IN MOTION

Currently, there are no specific laws in India related to Artificial Intelligence, Big Data and Machine Learning, though the government has been promoting Artificial Intelligence and its subsequent applications. In its National Strategy of Artificial Intelligence 2018, the government strategized towards maximizing the late mover's advantage in the Artificial Intelligence sector for "consistently delivering home-grown pioneering technology solutions in AI as per its unique needs to help leap-frogging and catch-up with the rest of the world". The process towards formulation of laws, guidelines, and policies, specifically regarding governing and regulating AI is already in the works. 

NITI Aayog recently released a report titled 'Designing the Future of Dispute Resolution (the ODR Policy Plan for India), 2021'. The committee recognized the benefits of Online Dispute Resolution and the role of AI towards achieving the same. The Report recognized the importance of AI in developing an Online Dispute Resolution system in India. The benefits of AI in the development of such a system can be manifold, including the elimination of human bias in the process of dispute resolution, etc. The goal of ODR as noted in the report is to supplant and not eliminate the existing model of dispute resolution. An example is Zhejiang's ODDRP (Online Dispute Diversification Resolution Platform) model which has integrated many ICT (Information Communication Technology) tools including AI, cloud computing etc. AI in this instance has been used to parallely introduce an efficient offline docking mechanism in litigation and dispute resolution.

The judiciary has been leading the way for some pivotal changes in the online dispute resolution framework. There have been several initiates vide the eCourts Mission Mode Project. The Lok Adalat has been transformed into online e-Lok Adalat. The hon'ble Supreme Court has harnessed AI's potential via the SUVAS (Supreme Court Vidhik Anuvaad Software) which translates judgments, orders, and judicial documents from English into nine vernacular languages.

There is still a vast potential to embed technology into the legal process, for instance blockchain driven arbitration processes can be developed for the purposes of drafting smart contracts. Smart contracts drafted in computer code can use technology to automate enforceability through transfer of rights and obligations, thereby aiding in administration of resolution based on blockchain arbitration in such smart contracts. The UNCITRAL Electronic Model Law on Electronic Commerce, 1996 and the UNCITRAL Convention on Electronic Communications in International Contracts, 2007, are the primary instruments which facilitate blockchain contracts. Articles 6 and 18 of the 2007 Convention elucidate on on-chain arbitration by allowing for electronic data records and electronic transactions in the arbitration process. Broadly, issues regarding data protection and justice subsist in the implementation of this framework.

ARTIFICIAL INTELLIGENCE: A RATIONAL APPROACH IN ARBITRATION

Currently, AI helps in reviewing enormous amounts of data which is involved in any arbitration and then segregating the relevant data and information which is beneficial for that particular case.⁵ This helps in saving a lot of time and money and in analyzing such complex nature of arbitration cases. The procedure regarding the appointment of the arbitrator can also be streamlined with the assistance of AI.

Generally, as opposed to an AI arbitrator, a human arbitrator is susceptible to cognitive bias. Further, the chances of committing errors in analyzing, reviewing, translating and in decision making are reduced, because the AI works strictly as per the information fed to it and not on account of human emotion.⁶

AI can also be used in determining the relevance, admissibility and discovery of evidence. In e-discovery, AI has proved to be quite successful wherein "predictive coding was employed for efficient document production and review".⁷ The AI system is considered as precise, systematic and actual in nature. As per the 2016 study of predictability of ECHR and a decision given by the Supreme Court of the United States, the precision in AI affiliated arbitrations was found to be 79% and 70.2% accurate respectively.⁸

ARTIFICIAL INTELLIGENCE IN ARBITRATION: A DISRUPTIVE MYTH

Although the use of AI in arbitration has several benefits, however, it has many drawbacks as well which makes the premise of making arbitrations completely AI dependent, a myth. In arbitration, there are several laws involved and different types of practices which makes the use of AI in arbitration a problematic affair.⁹ Further, in arbitration the cases are decided as per facts and circumstances of each case and precedents are not heavily relied upon. The involvement of different types of experts and specialists cannot be substituted by the use of AI in arbitration as the AI is based on the "inductive reasoning" in comparison to "deductive reasoning".¹⁰

Also, the use of AI requires a huge quantum of investment because conducting arbitration by AI involves a lot of training which in turn requires huge capital.¹¹ There are also concerns surrounding data privacy as AI is algorithm based, which is developed by a software which in turn is prone to hacking. Also, the AI while rendering the award will not provide a reason for arriving at the decision which is an essential part of the arbitration as AI arrives at the award at probabilistic inferences. Further, the process of arbitration follows the due process of natural justice, equity and conscience which cannot be followed by AI as it functions via an algorithm and on account of the data fed into the system.¹² Therefore, AI cannot substitute but only supplant the existing system.

CONCLUSION

ADR has aided towards the recalibration of delivering courts as a service and not a place. It has been pushed to become a more accessible, formidable, intelligent, pervasive, robustly designed outcome-oriented framework vide the advent of accessible internet, developments in Artificial Intelligence, Big Data etc. The revolution in technology, which has made communication easier has brought into question this assumption:

Whether effective communication, and thereby dispute resolution can usher without physical congregation?

In the light of the ongoing pandemic and restrictions thereto, this assumption has been discussed and scrutinized heavily. The authors analyze and conclude that AI systems can be used not in isolation but in synergy with the current offline systems to resolve disputes both online and offline. In the private sector, companies like Smartsettle and Cybersettle have moved onto innovative mechanisms such as blind bidding, or algorithm driven resolutions which indicate that ODR has potential for growth and expansion via AI.

Considering the research which crystallized into this contribution, and upon observing the COVID necessitated adjustments that have been made possible via the internet and developments in AI to bring access to justice a little closer to home, it wouldn't be incorrect in making a reference to William Gibson's famous quote:

"The future has already arrived; it is just not evenly distributed as yet".

It is now the responsibility of institutions and regulators to determine, just how equitable distribution can be achieved, even in the realm of dispute resolution by using tools like AI, while taking into consideration the data driven principles of transparency and accountability.

Footnotes

1. Designing the Future of Dispute Resolution (the ODR Policy Plan for India), 2021.

2. Professor John McCarthy, 'What is AI/ Basic Questions', (http://jmc.stanford.edu/artificial-intelligence/whatis-ai/index.html.) accessed on 24th January, 2022.

3. A.R. Lodder and J. Zeleznikow, "Developing an Online Dispute Resolution Environment: Dialogue Tools and Negotiation Systems in a Three Step Mode", The Harvard Negotiation Law Review (2005) 10, pp. 287338.

4. Id.

5. Lucas Bento, 'International Arbitration and Artificial Intelligence: Time to Tango' available at (http://arbitrationblog.kluwerarbitration.com/2018/02/23/international-arbitration-artificial-intelligence-time-tango/) accessed on 25th January, 2022.

6. Judy Sobowale, 'How artificial intelligence is transforming the legal profession' available at (http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_the_legal_profession) accessed on 25th January, 2022.

7. Brown v. BCA Trading Ltd, [2016] EWHC 1464 (Ch).

8. UCL, 'AI predicts outcomes of human rights trials', (October 24, 2016), available at  https://www.ucl.ac.uk/news/2016/oct/ai-predicts-outcomes-human-rights-trials.; Communications of the ACM, 'Artificial Intelligence prevails at predicting Supreme Court decisions', (May 5, 2017), available at https://cacm.acm.org/news/216852-artificial-intelligence-prevails-at-predicting-supreme-courtdecisions/.

9. Hogan Lovells, "The future of arbitration: New technologies are making a big impact - and AI robots may take on "human" roles," available at (https://www.hoganlovells.com/en/publications/the-future-of-arbitration-ai-robots-may-take-on-human-roles) accessed on 26th January 2022.

10. Id.

11. Camelia Aknouche, 'Artificial Intelligence and International Arbitration: Going Beyond Email' available at (https://www.tamimi.com/law-update-articles/artificial-intelligence-and-international-arbitration-going-beyond-e-mail/) accessed on 26th January 2022.

12. Available at (https://taxguru.in/corporate-law/artificial-intelligence-ai-effects-arbitration.html) accessed on 26th January 2022.

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