Revue - Les Cahiers de l'Arbitrage N°3 - 2024 - 13

DOCTRINES - DÉBATS
arbitration. 7
Today, counsel use predictive coding software to review large sets
of data and identify the most relevant documents for use in arbitral proceedings.
Their clients and third-party funders similarly rely on such software to predict the
outcome of proceedings. According to a 2023 survey, other common use cases
include translation (37%), editing and proofreading (30%), and content analysis
(23%). 8
There has also been no shortage of discussions of potential future use
cases such as artificial intelligence systems being used to draft submissions and
assisting arbitrators as " digital tribunal secretaries. " 9
In contrast to the extensive debate on the use of artificial intelligence, there
have been fewer discussions on the desirability of its regulation whether on a
national, international, or institutional level. More specifically, the international
arbitration community to date has paid little attention to the EU AI Act and its
potential application to international arbitration. 10
This is curious given that
the Act aims to broadly regulate the use of artificial intelligence and expressly
includes within its ambit artificial intelligence systems used in " alternative dispute
resolution " for " researching and interpreting facts and the law and in applying the
law to a concrete set of facts. " 11
It is therefore timely to discuss the extent to which
7. See, e.g., Annabelle O. Onyefulu, Artificial Intelligence in International Arbitration: A Step
Too Far?, 89(1) Arbitration: The International Journal of Arbitration, Mediation and Dispute
Management (2023), at p. 65 ( " [T]his innovation will certainly change the system of dispute
resolution in the coming years. " ); Cover feature: AI: the end of human arbitration?, 2 The Resolver
(2023), at p. 8 ( " [W]hile generative AI tools are still in their infancy... [t]heir advent means we
need a shift in the way we see the practice of arbitration " ); Kathleen Pailsey and Edna Sussman,
Artificial Intelligence Challenges and Opportunities for International Arbitration, 11(1) NYSBA New
York Dispute Resolution Lawyer (2018), at p. 39 ( " Whether we like it or not, artificial intelligence
is going to play a major role in international arbitration in the near future. " ); Ana F. Araluce, AI in
International Arbitration: Unveiling the Layers of Promise and Peril, 49 Iurgium [previously Spain
Arbitration Review] (2024), at p. 35 ( " Computer technology has changes the practice of international
arbitration in many ways... The new era of artificial intelligence ... represents change on a scale not
experienced before. " ).
8. George Burn et al., Annual Arbitration Survey 2023, Bryan Cave Leighton Paisner, undated,
available at https://www.bclplaw.com/a/web/tUW2SW6fjHrpXVrA7AfWkS/102932-arbitration-survey2023-report_v10.pdf.
9.
Ole Jensen, Tribunal Secretaries in International Arbitration (Oxford University Press 2019), at
para. 10.20 ( " Whether we like it or not, the use of artificial intelligence in decision-making must at
some point be discussed as a novel area of the delegation of arbitrator duties. " ); Stefanie G. Efstathiou
and Mihaela Apostol, Arbitration Tech Toolbox: ChatGPT - Arbitral Assistant or Fourth Arbitrator?,
Kluwer Arbitration Blog, dated 22 July 2023, available at https://arbitrationblog.kluwerarbitration.
com/2023/07/22/arbitration-tech-toolbox-chatgpt-arbitral-assistant-or-fourth-arbitrator/ ( " While using
ChatGPT for decisional purposes might seem unrealistic now, using ChatGPT as a tribunal secretary
might be more practicable. ChatGPT can undertake a good part of the tasks of the tribunal secretary " );
Meriam Al-Rashid and Ulyana Bardyn, Global Arbitration Review Insight, dated 25 July 2019,
available at https://globalarbitrationreview.com/review/the-arbitration-review-of-the-americas/2020/
article/the-role-of-artificial-intelligence-in-international-arbitration ( " Many tasks that were previously
delegated to administrative secretaries could now be delegated to AI. " ); Paul Cohen and Sophie
Nappert, The March of the Robots, Global Arbitration Review, dated 15 February 2017, available
at http://globalarbitrationreview.com/article/1080951/the-march-of-the-robots ( " [A] human tribunal
might consult with a computer programme as a supplement to, or check on, their decisions. The
computer might therefore perform a role similar to the one for which tribunals use (and occasionally
abuse) tribunal secretaries " ).
10. See Maxi Scherer, We Need to Talk About ... the EU AI Act!, Kluwer Arbitration Blog, dated
27 May 2024, available at https://arbitrationblog.kluwerarbitration.com/2024/05/27/we-need-to-talkabout-the-eu-ai-act/.
11.
EU AI Act, Annex III, at Article 8(a).
Les Cahiers de l'Arbitrage 2024‑3
655

https://www.bclplaw.com/a/web/tUW2SW6fjHrpXVrA7AfWkS/102932-arbitration-survey-2023-report_v10.pdf https://www.bclplaw.com/a/web/tUW2SW6fjHrpXVrA7AfWkS/102932-arbitration-survey-2023-report_v10.pdf https://arbitrationblog.kluwerarbitration.com/2023/07/22/arbitration-tech-toolbox-chatgpt-arbitral-assistant-or-fourth-arbitrator/ https://arbitrationblog.kluwerarbitration.com/2023/07/22/arbitration-tech-toolbox-chatgpt-arbitral-assistant-or-fourth-arbitrator/ https://globalarbitrationreview.com/review/the-arbitration-review-of-the-americas/2020/article/the-role-of-artificial-intelligence-in-international-arbitration https://globalarbitrationreview.com/review/the-arbitration-review-of-the-americas/2020/article/the-role-of-artificial-intelligence-in-international-arbitration http://globalarbitrationreview.com/article/1080951/the-march-of-the-robots https://arbitrationblog.kluwerarbitration.com/2024/05/27/we-need-to-talk-about-the-eu-ai-act/ https://arbitrationblog.kluwerarbitration.com/2024/05/27/we-need-to-talk-about-the-eu-ai-act/

Revue - Les Cahiers de l'Arbitrage N°3 - 2024

Table des matières de la publication Revue - Les Cahiers de l'Arbitrage N°3 - 2024