The important advancement of the new technologies, particularly digitalisation, artificial intelligence (AI) and smart contracts, has prompted a need to bring an accelerated technological modernisation in the field of the justice system. This is a visible phenomena, particularly in the United Kingdom. In September 2021 the UK Government announced the launch of a national AI strategy, including a “ten-year plan to make Britain a global AI superpower”. Justice is mentioned among the domains in which the Open Innovation Team have already provided innovative projects in the last five years. In the same year, the Civil Justice Council launched the Futures Working Group, whose terms of reference include “to take and encourage a long-term view of the impact of technology on the administration of justice, with emphasis on increasing access to justice and securing the position of the legal system of England and Wales as a global leader”.
The question is: where is the future of arbitration, in facing the intensive incorporation of AI-based technological tools in the state justice system, possibly including automated decision-making. Will arbitration follow the same path or choose a different one?
Normally, arbitration should be the best environment for implementing new modern procedural rules, as well as for using new technologies for various procedural aspects. That is because of two main characteristics of arbitration: first, that it is based on the parties’ autonomy in deciding on the procedure to be applied, hence allowing innovation; second, because each arbitration case may be governed by specific rules, and allow the use of specific technologies, making arbitration a genuine sandbox. If we add to these the adaptation speed of the providers of arbitration services, higher than that of a state justice system, the instinctive tendency in forecasting the further development of arbitration would be to consider that arbitration would also go in the direction of automation and use of AI.
However, at a deeper look, arbitration is not the best suited for the development of AI-based innovative tools precisely because it is shaped by the needs of each particular case. That is because for this particular technology, arbitration fails to provide enough caselaw, and even less enough repetitive case law, for the necessary big data to be collected and processed for relevant results, compared with the courts of law. Also, the use of AI inevitably comes with the standardisation of the procedures, which is against the expectations of the users of arbitration, who seek a tailor-made procedure. That is why, it is most likely that arbitration will not be the preferred environment for the extended use of the AI-assisted and even less for the AI-based decision making.
Where is then the direction of the possible further development of arbitration? If we look at its very premise, of being a dispute resolution mechanism alternative to the state justice system, then the necessary conclusion is that arbitration can only take the opposite direction. That is to eventually become the opt-out from a heavily technological justice system, to be a human-based dispute resolution mechanism. The human compassion, the human ability to profoundly understand another human being, the answer to the fundamental need of a human being to be considered unique and have their behaviour assessed in the specific circumstances of its unique situation, and not as a part of a social pattern, when about a dispute, will have to be fostered somewhere. That place could be the arbitration, whose very beginning is among similar people, the traders, peers being entrusted with the decisional power by other peers. Arbitration shall most likely return to its core-value, the classical expression, “the arbitration is as good as the arbitrators are”, who will be now seen not through the lens of the limitations it may have, but through the lens of the amplitude of the human value it may bring.