Home » AI In International Arbitration – New Technology – Switzerland

AI In International Arbitration – New Technology – Switzerland

Artificial Intelligence (AI) is the ability of a computer or
computer-controlled robot to perform tasks that are commonly
associated with the intellectual processes characteristic of
humans.1

With the appearance of AI, many fear that computers will take
over the work of human workers, especially in fields where a
computer can actually perform better. An example of such a field is
legal work, where a study has shown that the capabilities of AI far
exceed those of human lawyers in certain aspects. For instance, an
AI is capable of drafting five NDAs in 26 seconds with an accuracy
of 94.55%, whereas lawyers needed at least an hour and achieved an
average accuracy of 84.84%.2

AI in its current state, however, is far from perfect. This was
showcased when two US lawyers were fined USD 5,000 because they
relied on AI to come up with case law for one of their submissions.
The cases ChatGPT referenced did not exist, although ChatGPT
assured the lawyers the cases were real.3 This example
clearly shows the underlying dangers in the use of AI in litigation
and international arbitration.

Regulation of AI in International Arbitration

Currently, as in almost every other field, the use of AI in
arbitration proceedings is mostly unregulated. Therefore,
arbitration lawyers must approach this new technology with
caution.

The pioneer in the regulation of AI in legal work is the Silicon Valley
Arbitration & Mediation Center
(SVAMC), a forum
specializing in technology-related dispute resolution. In August of
2023, SVAMC published its Draft Guidelines on the Use of Artificial
Intelligence in International Arbitration
(the
“Guidelines”). These guidelines have not yet been adopted
but were only made publicly available in a draft form so that
practitioners can provide feedback and comments before the final
version is published.

The Guidelines contain rules addressed to the parties, their
legal representatives and arbitrators. It also differentiates
between compliant and non-compliant utilization of AI, the latter
being essentially the use of AI without human input and an
assessment of the results to select arbitrators and draft
submissions or awards. For instance, arbitrators must still conduct
an independent assessment of the facts, the law and the
evidence:

AI Tools Currently Used by International Arbitration
Lawyers

AI can already be used in international arbitration in several
different aspects of legal work.

To conduct legal research, international arbitration lawyers can
use AI to complement their own work and speed up certain parts of
the process. AI, however, currently does not allow fully automated
research. Platforms such as Jus-AI (by Jus Mundi), Lexis+ AI (by
LexisNexis) and Westlaw Edge (by Thomson Reuters) have already been
introduced to the public. Jus-AI uses ChatGPT as its engine and provides
a centralized platform where the AI responds to questions based on
the Jus Mundi database. Lexis+ AI can do the same, but it is also able
to draft arguments, contract clauses and client communications, as
well as analyse and summarise the content of documents. Westlaw Edge is a boosted version of the
well-known Westlaw research tool, which also provides litigation
analytics with detailed information on judges, courts, damages,
attorneys and case types. It also features a so-called
“KeyCite Overruling Risk” assessment, which warns its
user when a “point of law has been implicitly undermined
based on its reliance on an overruled or otherwise invalid prior
decision.
4

For one of the first steps of the proceedings, the selection of
arbitrators, lawyers can also use tools such as Arbitrator
Intelligence, which allows practitioners to share information and
feedback about arbitrators without breaching the confidentiality of
proceedings or awards. To achieve this, Arbitrator Intelligence
does not collect data that would identify the case or the parties.
Instead, it asks for information that facilitates the analysis of
decision-making and overall case outcomes of certain
arbitrators.

International arbitration lawyers typically work with documents
in a variety of different languages. DeepL
is an AI-powered tool using artificial neural networks that can
dramatically speed up the initial translation of foreign-language
documents. While the translation tool of Google (Google Translate)
is improving, tools such as DeepL are currently more reliable.
DeepL, at the time of publication of the current note, can
translate to and from 27 different languages with high accuracy
while also learning from its previous mistakes and the user’s
inputs.

Some lawyers have also applied AI in international arbitration
for drafting purposes. Apart from the tools listed above, lawyers
sometimes rely on ChatGPT to draft certain parts of submissions or
contract clauses. This must be approached with caution, however.
Artificial Intelligence, in its current state, is famous for not
being able to differentiate between correct and incorrect
information. It also invents information (known as AI
hallucinations) to fill in the gaps in its knowledge.5
This is a key reason why reliance on AI to draft submissions in
international arbitration cases without proper human intervention
will amount to non-compliant use of Artificial Intelligence under
the SVAMC Guidelines and should be avoided.

Privacy Issues with the Use of AI in International
Arbitration

One of the crucial issues with using Artificial Intelligence for
legal work is the consideration of data privacy. While most of the
above tools provide an elevated level of data security to their
subscribed users, uploading confidential information to these
platforms can still be problematic. It is important to consider
that these AI models continuously “learn” from new data
shared with them and can also remember and reuse previously
processed information. Sharing unredacted legal documents,
therefore, can lead to severe issues and even violations of
regulations like the GDPR.6

Conclusion

There are significant hazards associated with using AI in
international arbitration and other legal tasks in its current
condition. Serious errors can occur in the absence of sufficient
human oversight and input. As a result, extreme caution is
required. On the positive side, this also means that lawyers cannot
(at least for a while) be replaced by Artificial Intelligence.
Rather, AI can provide legal professionals with new tools to make
certain aspects of their work more efficient.

Footnotes

1 Britannica, artificial intelligence, Nov 2023,
https://www.britannica.com/technology/artificial-intelligence (last
accessed 24 November 2023).

2 Lrz.legal, Artificial Intelligence vs. Human in the
Legal Profession – AI vs. Legal Profession
, May 2018,
https://lrz.legal/de/lrz/artificial-intelligence-vs-human-in-the-legal-profession
(last accessed 24 November 2023).

3 The Guardian, Two US lawyers fined for submitting
fake court citations from ChatGPT
, June 2023,
https://www.theguardian.com/technology/2023/jun/23/two-us-lawyers-fined-submitting-fake-court-citations-chatgpt
(last accessed 24 November 2023).

4 Thomson Reuters, Two US lawyers fined for
submitting fake court citations from ChatGPT
,
https://legal.thomsonreuters.com/en/products/westlaw-edge/features
(last accessed 24 November 2023).

5 Scribbr, Is ChatGPT Trustworthy? | Accuracy
Tested
, November 2023,
https://www.scribbr.com/ai-tools/is-chatgpt-trustworthy/ (last
accessed 24 November 2023).

6 Legalfly.ai, Legal AI: The Unseen Data Privacy
Risks
, August 2023, https://www.legalfly.ai/blog/data-privacy
(last accessed 24 November 2023).

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