By Pulane Jeanet Kholoanyane
Advancements in technology have traditionally shaped the practice of dispute resolution, and this trend is projected to continue in the foreseeable future. This essay seeks to critically evaluate the future role of human arbitrators in light of the emergence of Artificial Intelligence, commonly referred to as AI. This essay will explore the potential opportunities and challenges faced by human arbitrators with the introduction of AI to the arbitration landscape. More specifically, it will discuss the ethical and practical considerations to the use of AI in arbitration, discussing, amongst others: arbitration processes; transparency, bias and the preservation of due process. By critically evaluating these, the chapter aims to provide insights into the future direction of human arbitrators in light of the emergence of AI.

AI has the potential to revolutionalise the field of arbitration by streamlining processes, improving efficiency, and reducing costs. AI can assist human arbitrators in various tasks, such as case analyses, legal research, and document review, thereby allowing them to focus on more complex and nuanced aspects of dispute resolution. Additionally, AI-powered tools can facilitate predictive analytics, helping arbitrators anticipate potential outcomes based on available precedents and data analysis. One of the key benefits of integrating AI into arbitration is the potential to enhance transparency. That is, AI algorithms can be programmed to provide clear and objective reasoning behind decisions, thus promoting transparency in the arbitration process.

AI can further help identify and mitigate biases by analysing large datasets and detecting patterns that human arbitrators may otherwise overlook. By eliminating bias, AI can enhance the fairness and impartiality of arbitration proceedings. Although AI has its benefits, it also presents challenges that must carefully be addressed. One of the primary concerns is the potential loss of human judgement and discretion. While AI can process vast amounts of data and identify relevant legal precedents, it may lack the ability to contexualise information or exercise subjective judgment. Human arbitrators bring valuable insight, intuition, and empathy to the decision-making process, which AI may struggle to replicate.

Moreover, the use of AI in arbitration raises ethical questions regarding accountability and responsibility. In cases where AI algorithms are used to make decisions, it may be challenging to determine who is ultimately responsible for the outcome. Human arbitrators may need to grapple with issues of liability and oversight, particularly in instances where AI systems make errors or produce unjust outcomes. Another concern is the preservation of due process in arbitration proceedings. While AI can expedite certain aspects of the process, such as document review and data analysis, it must be ensured that the rights of the parties involved are fully respected. This includes the right to be heard, the right to present evidence, and the right to a fair and impartial tribunal. Human arbitrators play a crucial role in safeguarding these fundamental principles and ensuring that arbitration remains a legitimate and effective means of dispute resolution.

Conclusively, the future role of human arbitrators in the age of AI will likely be one of adaptation and collaboration. While AI has the potential to enhance efficiency and transparency in arbitration proceedings, it is essential to recognise the unique value that human arbitrators bring to the table. By leveraging the strengths of both human judgment and AI-powered tools, arbitrators can navigate the complexities of modern dispute resolution and uphold the integrity of the arbitration process. Moving forward, it will be crucial to strike a balance between technological innovation and the preservation of core principles such as fairness, impartiality, and due process.
By Cindy Amuka
In 1955, when John McCarthy coined the term ‘Artificial Intelligence’ (AI), McCarthy defined AI as “the science and engineering of making intelligent machines”. Almost 70 years later, the advent of Al in the various forms we interact with it today has radically transformed lives and the times; including, through revolutionary telecommunication, improved healthcare, efficient service delivery, better transport systems, immersive education and entertainment experiences.

Al and Arbitration, today:
The dispute resolution landscape is no different; Al does and will continue to impact the law in unprecedented ways. According to Global Arbitration Review, Al has, at present, already unbundled various aspects of legal work in many jurisdictions where machine-appropriate legal tasks such as research, transcription and certain drafting elements have been now been automated. Consequently, time spent on arbitrations is halved and associated costs are significantly reduced. In this regard, clerks and secretaries to arbitrators may soon be redundant.

Al as Arbitrators, in the long-term:
Beyond basic administrative assistance, the debate on the AI subject as concerns arbitration ultimately turns on whether Al can act as arbitrators. Put differently, can disputing parties submit their matter to a programmed robot or code together with all pertinent documents and information for adjudication? Notably, litigators and adjudicators are already using AI predictive software to determine the chances of success of disputes. In these instances, Al explores and offers possible outcomes to a dispute, implicitly acting as a decision-maker should its decision sway the litigators or adjudicators, as the case may be, and so the formal use of Al as the singular arbitrator in the near future is not a far-fetched thought.

Are Al-Arbitrators likely to supplant Human-Arbitrators?:
Nevertheless, the concerns with installing Al as arbitrator are readily appreciable and include the risk of confidentiality and personal data protection. Lack of transparency over control of arbitral data and algorithm jeopardizes the sanctity of arbitrations. These risks coupled with the fact that arbitration is one of those nuanced practices that requires the exercise of niche skills inherently human such as emotional intelligence, the art of persuasion, intuition, sense of equity, diplomacy, discretion which are either lacking or underdeveloped in

Al, lead the charge in the case against the total rise of AI-Arbitrators.
It has also been argued that AI has a tendency to perpetuate biases contained in the training data, has a propensity to mix up or invent information to fill knowledge gaps and is unable to identify the logic or sources of information used to produce given output.

Whilst Al regulation and legislation has been largely lacking, on 13 March 2024, the European Union passed the AI Act, the world’s first comprehensive AI law. On 14 March 2024, the United Nation General Assembly unanimously adopted the first global resolution on artificial intelligence. Both laws take a protectionist approach seeking to limit Al’s application within certain ethical boundaries. This approach, and the fact that strictly speaking, an Al-Arbitrator rendered award would likely face enforcement challenges in many jurisdictions, further informs the position that Al-Arbitrators are not a forgone conclusion.

Conclusion: What does a truce look like, then?:
AI is certainly at a disadvantaged position in usurping human-arbitrations more so in high stakes arbitrations involving States or multinational enterprises. Nonetheless, as change is inevitable, a balanced approach needs to be taken on the matter where human-arbitrators must advocate for universally recognized limits and minimum standards in the use of agile-tested Al in arbitrations. If anything is a win in this new century, it is everyday people-centred problem-solving technology; be it Al or a human being steering said solutions.