Technological changes are impacting legal processes across the board, and arbitration is no exception. The current technological landscape has developed rapidly in recent years and will continue to do so in the near future and beyond. We consider the current use of technology in arbitration and what the future might look like.
Present
Leading figures in the judiciary are advocating for greater use of technology in litigation, including digitising the court system. Despite arbitration being a private forum for dispute resolution, distinct from the courts, technological changes are also being made at a fast pace. Arbitration, in particular where the LCAM rules apply, is uniquely well suited to keeping up with the changes given the flexibility the forum affords.
Virtual hearings, electronic bundles and real-time transcription have become more prevalent in recent years, driven significantly by the enforced lockdowns of 2020-21, which dramatically increased the speed of uptake and acceptance of these technologies. These tools serve to promote flexibility when parties and arbitrators may be in different jurisdictions, as well as affording costs savings and environmental benefits.
Aside from the use of technology in hearings, it is employed day-to-day in the preparation of cases, including the use of technology assisted review and artificial intelligence (AI) in disclosure, the use of AI to review and summarise voluminous contracts and documents, and machine translation.
Perhaps most recent (and most controversial), is the use of AI by decision-makers. At least one Court of Appeal judge has used generative AI to produce a summary of an area of law which he transposed into his judgment. Arbitrators also have this technology available to them to, for example, produce an overview of the relevant black letter law, summarise the factual background or produce a chronology from the documents available to them. Ensuring that the appropriate human checks are in place is key to ensuring accuracy and maintaining user confidence.
Arbitral rules and guidance worldwide are being amended to reflect technological advances, both in terms of use of technology in the arbitration process, but also to reflect the subject matter of disputes relating to complex technologies. The London Chamber of Arbitration and Mediation (LCAM) places emphasis on promoting economy, efficiency and expediency in arbitration, which can only be improved by strategic use of technology.
Future
The use of technology in arbitration is here to stay and will increase quickly, with the ever-developing use of AI reducing human work and increasing over time to cover more tasks. As acknowledged recently by Sir Geoffrey Vos, Master of the Rolls and Head of Civil Justice, case outcome predictions are likely to be increasingly sought by parties in dispute, to sense-check and complement the opinions of legal teams.
The use of AI to make decisions is also on the horizon, albeit some way off, particularly for significant and complex commercial disputes. For there to be confidence in any such automated process, there would need to be some development in AI capability and predictability, as well as agreed rules which will apply.
by Duran Ross, Partner, Lewis Silkin