Revue - Les Cahiers de l'Arbitrage N°2 - 2024 - 52

ARTICLES - DEBATES
institutions to check the arbitrators' backgrounds and ensure there are no conflicts,
unavailability or other performance related issues that may impact the integrity of
the proceedings. With automation, such an exercise can be instantaneous, whereby
a rigorous review for conflicts can take place simultaneously with a check on all
past matters involving the nominated arbitrator. Between the institution's internal
systems, publicly available data and platforms aimed at " increasing access to
critical information about arbitrators " , AI could be trained to review such sources
instantaneously. 38
The ability to confirm arbitrators at such a pace, coupled with the
other decisions that AI could handle, would materially expedite the appointment
process. Processes like the LCIA's expedited appointment procedures, as well
as emergency arbitrator appointments, 39
have demonstrated that it is possible to
address this quickly. However, as of now, such expedited procedure is available
only in case of " exceptional urgency " , if the necessary requirements are met and
if the LCIA decides to grant the request. 40
improve the process significantly.
- Challenges and replacement of arbitrators: Institutions already publish data
on their challenge statistics and the reasoning for them. The LCIA, 41
SCC, 42
HKIAC 43
Otherwise, such procedure would not
be available to the parties. Accordingly, by adopting this kind of AI tool, or simply
collaborating with platforms which already offer such services, institutions could
and
have all published sanitised versions of challenge decisions. Transparency
can make a difference in advising clients as to whether or not to pursue a challenge.
The use of AI could streamline the process further and even prevent, or limit, the
challenges of arbitrators to meritorious ones only. For instance, parties could engage
with the AI by inserting the fact pattern and specific reason for wishing to challenge
an arbitrator. In turn, the AI, based on the institution's rules and various past
situations, could then provide the parties with a suggestion indicating the potential
for a successful challenge and, where applicable, perhaps the institution's cost of
such procedure. In this way, parties would benefit from knowing early on whether
they have grounds for challenging arbitrators (which could also save time by
eliminating meritless challenges), and knowing the approximate institution cost of
that process. The same approach can be adopted in the replacement of arbitrators. 44
It is further suggested that AI or a specifically developed tool can be used by
the institutions for more complex decisions. These include:
38. All arbitrators have online profiles published on the websites of their respective workplaces
(e.g. law firms, chambers, universities, or their own websites. See also Arbitrator Intelligence
available at https://arbitratorintelligence.vercel.app/ , last accessed on 27 November 2023.
39. See e.g. 2020 LCIA Rules, Article 9A; DIFC-LCIA Rules (2021), Article 9A; and 2007 DIAC
Rules, Article 12.
40. M. Scherer, 'Chapter 10: Expedited Formation of the Arbitral Tribunal, Emergency Arbitrator
and Expedited Replacement of Arbitrators', in M. Scherer, L. Richman, et al., Arbitrating under the
2020 LCIA Rules: A User's Guide, (Kluwer Law International 2021), pp. 145 - 184.
41. See e.g. the LCIA Challenge Decision Database available at https://www.lcia.org/challengedecision-database.aspx
, last accessed 28 March 2024.
42. See e.g. A selection of SCC Decision on Challenges of Arbitrators in 2016-2018 available at
https://sccarbitrationinstitute.se/sites/default/files/2022-11/scc-practice-note_scc-decisions-on-challengesto-arbitrators-2016-2018-1.pdf
, last accessed on 13 June 2024.
43. See e.g. the HKIAC Case Digest available at https://hkiac.org/Case-Digest, last accessed on
15 June 2024.
44. The LCIA has recognised this by introducing rules for expedited appointment of replacement
arbitrator, see 2020 LCIA Rules, Article 9C.
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The Paris Journal of International Arbitration 2024‑2

https://arbitratorintelligence.vercel.app/ https://www.lcia.org/challenge https://www.sccarbitrationinstitute.se/sites/default/files/2022-11/scc-practice-note_scc-decisions-on-challenges https://www.hkiac.org/Case-Digest

Revue - Les Cahiers de l'Arbitrage N°2 - 2024

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