CAN ARTIFICIAL INTELLIGENCE OUST INDIAN ARBITRATORS?
Author: Stency Mariya Mark, Pursuing LLM, Rajiv Gandhi National University of Law, Patiala
Abstract
In this cyber-physical age, every day a new invention hits the market and the old ones rest like a souvenir. Surprisingly, artificial intelligence has crawled in and made an eternal impression. The legal profession wasn’t immune to this paradigm shift which then created a dilemma. The first part of the article sheds light on the significant impact of artificial intelligence on the job of arbitrators. Furthermore, the article enlightens how technology has successfully displaced many human activities. Technology has augmented the quality of work and has proven to be cost-effective. This article from a holistic point of view addresses the potential repercussions if the arbitrators are replaced with machine-oriented intelligence. Over years, new technology has ousted the old ones. For example; calculators, cameras, alarm clocks, calendars aren’t specifically bought from the markets anymore. The consumers can merely buy a mobile phone which has in-built functions for all these. In the end, the article proposes a conglomerate of human and machine. Arbitration, powered with artificial intelligence, can be the face of technologically advanced society adjusting to the ever-changing dynamics of the world.
KEYWORDS: Dynamic, Machine-oriented, Dilemma.
Introduction
In ancient times people were mutually dependent for their needs. This theory of interdependence was propagated by a prominent jurist in the sociological school of jurisprudence. Emile Durkheim emphasized on two theories called mechanical solidarity and organic solidarity. He preached how the societies were dependent on each other due to the division of labour in organic society. It is what held the societies together. Another revolutionary thinker was Leon Duiguit. His theory of social solidarity dealt with ‘interdependence of men’.[i]
Leon Duguit was inspired from the work of August Comte and Emile Durkheim. He considered the laws which promoted social solidarity were good laws. However, the world became technologically advanced with each passing day. This dependency from men shifted towards technology. Men were replaced with technology at work and home. The factory hired and rented machines instead of labour. Machines are considered efficient and cost-effective. Technological innovations and artificial intelligence have become a part and parcel of life. It has entered into every field from schools to colleges. The Oxford dictionary defines artificial intelligence as “the development of the computer system being able to do a task/work which would normally require human intelligence”.[ii] As years passed, revolution knocked doors of the legal profession and has left an impeccable footprint.
Artificial intelligence and robotics are two separate terms. Quite often they are used interchangeably which is incorrect. However, the former is a branch of computer science that works akin to a human. They are capable of solving problems and analyzing. The latter is a technology which primarily focuses on carrying out tasks. In a layman’s language, artificial intelligence’s centre of interest is the brain and for robotics, it is the body. Robotics and artificial intelligence have a mingling point when an artificially intelligent robot is erected. In recent discussions, the introduction of artificial intelligence in courts and arbitration was put forward. It is unequivocal that technology will be contributing to the proper functioning of arbitration. But depending entirely on it is, impractical. The Chief Justice of India, Sharad Arvind Bobde emphasized on the need of AI and said that “artificial intelligence can be useful for the judicial process but it cannot replace human discretion”.[iii]
Implementation of Artificial Intelligence in Legal Decision-Making
The 21st century is undoubtedly fuelled with technological innovations which have led to the use of artificial intelligence in almost all fields of life. One such field where there could be penetration of artificial intelligence is the dispute resolution mechanism called arbitration. The Black Law’s Dictionary defines arbitration as “a submission for determining the dispute to private unofficial persons provided by agreement or law”.[iv] In India, artificial intelligence hasn’t penetrated completely in dispute resolution mechanisms. Arbitration is known for its procedural flexibility. Unlike courts, arbitration gives the parties liberty to mould and tailor the procedure. They have a greater degree of dominance over the proceedings. Now, a question arises how will this be implemented in the field of arbitration?
There are various tools of artificial intelligence which can be used to resolve the dispute. One such tool is called ‘predictive coding’. Originally Cutler proposed about predictive coding in the year 1952.[v] It is also known as computer-assisted review or technology-assisted review. Instead of human-review or manual-review, the predictive coding with the help of artificial intelligence reviews the documents. It is a time and money-saving procedure and many lawyers have turned towards this. Relevant data and documents can be easily traced down with the help of an algorithm.
Another artificial intelligence which can be used in the arbitration is ‘translation’. The documents of arbitration will be scanned by the technology within seconds with accurate results. The researching tools with artificial intelligence have proven to be extremely efficient. These tools are built with strong power engines where the search is easily done. Just like predictive coding, even this helps to cut short the time and energy. A peculiar feature of such research tools is the feedback system. It helps the search engine to improvise each time and increase the success rate.
Moreover, artificial intelligence can be used to predict the ‘future of the dispute’. There is plenty of commercial software that helps in predicting the outcome of a case. It has already been used in the labour dispute, intellectual property rights etc. These programs look for combinations and sequences of words which help to predict the outcome. This technology has already been used in various countries. In the year 2017, the ‘Case Cruncher Alpha’ program stole the headlines with its astonishing technology. It was pitted against almost hundreds of lawyers and was asked to predict the future of the cases. The program gave 86.6 % accuracy rate against the lawyers who had merely 66.3%. It proved to be better than humans in terms of accuracy.[vi]
Is Artificial Intelligence the future?
The Arbitration and Conciliation Act, 1996 deals with arbitral cases in India. The law applies to international commercial arbitration, domestic arbitration and even the enforcement of the foreign arbitral awards. It has adopted the United Nations Commission on International Trade Law model law.[vii] The parties are at the liberty to choose the numbers of arbitrators in the arbitration tribunal. In case they fail to do so, the tribunal would consist of one arbitrator. [viii] The act specifies that a person’ of any nationality can be an arbitrator unless something else was agreed by the arbitrator.[ix] The act specifies having a person as an arbitrator, however; the nationality is of the choice of the parties. None of the provisions in the Arbitration and Conciliation Act, 1996 reflect on artificial intelligence.
David Johnson designed an online test to determine whether a robot can do your job along with the accuracy percentile. The results for the lawyers stated that almost 23% of the work could be performed by a robot. They can prepare legal documents and even research on relevant things. [x] Technology can play a crucial role in the assistance of a lawyer in their day to day life. The arbitrators and lawyers aren’t immune to this revolution. This created a fear in the minds of the arbitrators that they might lose their jobs to technology which work better than them. The role of an arbitrator is crucial. It is akin to the role of a judge in the court of law.
The arbitrator is an indispensable component of a successful arbitration. There is always a possibility of biasness at the end of an arbitrator. Since arbitrators are chosen by the parties themselves. This biasness would be removed if there wouldn’t be any human factor. Artificial intelligence is free from prejudice and would be providing a better reward than a biased arbitrator. For instance, XYZ(female) and ABC(male) appoint DFJ(the arbitrator). DFJ gives an award in favour of ABC merely because he is a male. Such biasness of gender disparity could be eradicated if there is machine adjudicating. The decision of a machine is likely to be less tainted when compared to a human. Another example would be if an arbitrator had a bad day it will cloud their judgment. Such biasness can be avoided.[xi]
In today’s cyber-physical age having a competitive edge is paramount. If a firm or business will be engaging in arbitration, it will be valuable for them to know the predicted future or the likely outcome.[xii] The artificial intelligence is known to predict the outcome with accuracy. So if with the help of technology these firms can keep an edge. All these indicate that this technology can lessen the burden of tedious work, perform higher-level of work in less time and with more efficiency. Artificial intelligence can be the future that the legal profession needs.
Contemporary challenges in implementation of AI
There is no provision in the Arbitration and Conciliation Act prohibiting the use of artificial intelligence as arbitrators. But the word ‘person’ includes human beings only and thus, it implicitly excludes using technology as arbitrator. Even if the domestic dispute adjudication uses artificial intelligence instead of arbitrators, parties may repudiate it based on public policy. Public policy can’t be restricted to a definition or mere combinations of words. It has a variable and dynamic nature and keeps evolving to meet the political, economic and cultural changes. The enforceability and recognition of the arbitral awards rendered by artificial intelligence may be denied on the grounds of public policy. Machines and technology always lack empathy and emotions. These emotions help in better decision making which only a human can make. For instance, the Code of Criminal Procedure(CrPC) states that a woman related offence shall be tried as far as practicable by a Court presided by a woman.[xiii] It is because a woman presiding officer can empathise better than a male officer. Sometimes the laws don’t decide a dispute but factors like equity, good conscience and justice are the driving forces for a good decision. Even if a machine is accurate, it might not do justice to the parties. The absence of human qualities will always raise questions on the morals of the decision. A just decision is always backed with moral principles.
Another question which needs to be addressed is the affordability of technology. Young and new arbitrators don’t have the resources or money to buy artificial intelligence. Only big firms, funders, corporations and wealthy people will have access to it. Any arbitrator who buys such artificial intelligence wouldn’t be experienced to handle such sophisticated technology. They would lack expertise and knowledge.[xiv] Each software which is made for searching and reviewing documents would give the results according to a static algorithm. This often raises the question who would be responsible for inaccurate results? A human can be held liable for his review. On the other hand, a machine can’t be held accountable for identifying the wrong document or irrelevant document.
Moreover, artificial intelligence as decision-makers could be inherently dangerous. It gives the technology an immense degree of control and power. Every decision-maker is obligated to provide a reason for their decision. For example; the ratio decidendi of each case helps to comprehend the rationale, rule of law, principles and reason behind each judicial decision. The fault in artificial intelligence lies in its reasoning capability. It doesn’t back the decision with rationale and grounds. It simply decides the case and it is objectionable. If the party is aggrieved by the decision they seek an appeal on the ground that their case was ‘wrongly decided’. Thus, the absence of justification will create hurdles in filing appeals. It is manifest and evident that arbitrators cannot be replaced with technology as they can never possess the explicit qualities of a human. Using artificial intelligence can be cost-effective but there will always be a catch i.e. it needs a human force behind the screen to operate it.
Suggestions and Conclusions
The last few decades have witnessed a gigantic growth in technology which has motivated people to shift towards novelty and innovation. Companies spend millions in building artificial intelligence that can assist litigators and arbitrators. Some have suggested replacing arbitrators with technology. They argue artificial intelligence makes legal work structured, methodical, coherent, productive and economical. While on the other hand, one cannot be ignorant of the obvious truth. Artificial technology taking over arbitrators would be like an aeroplane using autopilot.
Humans can’t trust machines completely because the experience of humans can’t be ingrained in computers. Even though artificial intelligence helps in cutting downtime and money, it is unfathomable that it can take over the jobs of arbitrators. They do a portion of work accurately but the work of an arbitrator isn’t limited to decision making or research. The routine tasks of reviewing a document or any such discrete task can be handled by the technology easily. Additionally, there would always be clients who require a human and not a machine to resolve their problem. Arbitrators who see the rise of technology as a threat should start seeing it as an opportunity to prosper. The technological revolution will help to mitigate the cost and make it more affordable to access legal help. Incorporating artificial intelligence and embracing what technology has to offer, should be an ideal strategy for arbitrators. The steady increase in effective algorithms can’t replace the traditional arbitrators.
Thus, combining artificial intelligence with arbitrators would be less controversial than making it the sole arbitrator. It can help to eliminate the biasness of the arbitrator and also help in giving an alternative solution to the problem Ideally, using artificial intelligence in the field arbitration is better than making it an arbitrator.
[i]Renate Douwes & Maria Stuttaford et. al, Social Solidarity, Human Rights, and Collective Action: Considerations in the Implementation of the National Health Insurance in South Africa, 20 HEALTH AND HUM RIGHTS 185, 187(2018), https://www.researchgate.net/publication/329984491_Social_Solidarity_Human_Rights_and_Collective_Action_Considerations_in_the_Implementation_of_the_National_Health_Insurance_in_South_Africa.
[ii]Artificial Intelligence, OXFORD REFERENCE, https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095426960# (last visited October 13, 2020).
[iii] Press Trust of India, Artificial Intelligence can be used in judicial process but cannot replace human discretion, THE TIMES OF INDIA, January 24, 2020), https://timesofindia.indiatimes.com/india/artificial-intelligence-can-be-used-in-judicial-process-but-cannot-replace-human-discretion-cji/articleshow/73586926.cms.
[iv] Arbitration, BLACK'S LAW DICTIONARY (St. Paul, Minn. West Publishing Co., 4th ed. 1968).
[v] SHILPA METKAR & SANJAY TALBAR, MOTION ESTIMATION TECHNIQUES FOR DIGITAL VIDEO CODING, 5 (2013), (ebook).
[vi] Ademola Adeyoju, Artificial Intelligence and the Future of Law Practice in Africa, TEKEDIA, December 16, 2018, https://www.tekedia.com/artificial-intelligence-and-the-future-of-law-practice-in-africa1/.
[vii] Arbitration and Conciliation Act (1996).
[viii] Arbitration and Conciliation Act, §10 (1996).
[ix] Arbitration and Conciliation Act, §11 (1996).
[x] DAVOR BABIC & MIKLOS BORONKAY ET. AL, AUSTRIAN YEARBOOK ON INTERNATIONAL ARBITRATION 2019, 507(2019), (ebook).
[xi] Karen Maxwell, Summoning the demon: robot arbitrators: arbitration and artificial intelligence, THOMSON REUTERS (January 17, 2019) http://arbitrationblog.practicallaw.com/summoning-the-demon-robot-arbitrators-arbitration-and-artificial-intelligence/.
[xii] Ahmad E. Alozn & Abdulla Galadari, Utility Function under Decision Theory: A Construction Arbitration Application, AIP CONFERENCE PROCEEDINGS (August 1, 2017), https://aip.scitation.org/doi/pdf/10.1063/1.4994404.
[xiii] The Code of Criminal Procedure, §26 (1973).
[xiv] Kathleen Paisley & Edna Sussma, Artificial Intelligence Challenges and Opportunities for International Arbitration, 11 NYSBA 35, 37 (2018), https://sussmanadr.com/wp-content/uploads/2018/12/artificial-intelligence-in-arbitration-NYSBA-spring-2018-Sussman.pdf