Revue - Les Cahiers de l'Arbitrage N°3 - 2024 - 34

ARTICLES - DEBATES
Commercial Arbitration. While Germany is in the process of reforming its arbitration
law and the draft bill took account of technological advancements such as remote
hearings and electronic signatures, 116
was not discussed in the drafting process.
the question of regulating artificial intelligence
National arbitration statutes and international treaties ensure that fairness,
transparency and due process are promoted in arbitration. They typically include
standards for the appointment and conduct of arbitrators and mechanisms for
judicial oversight. These instruments therefore already protect the fundamental
rights of all parties involved whether artificial intelligence is used or not.
Given that the existing international arbitration treaties and national arbitration
statutes are broad and flexible enough to address the misuse of artificial intelligence
in international arbitration, there does not currently appear to be a strong need
for additional, mandatory regulation of artificial intelligence at the international or
national level for international arbitration. However, as discussed below, there is
room for soft law regulations addressing the use of artificial intelligence as a matter
of best practice. 117
B. Regulation by Soft Law Instruments
In theory, there is nothing to prevent parties to an arbitration agreement from
specifying regulations on the use of artificial intelligence that would apply to their
arbitration. However, in practice, it is unlikely that the parties get into this level of
detail in the arbitration agreement. Instead, the regulation of artificial intelligence
by party agreement is most likely to occur by the parties expressly agreeing to the
rules of an arbitral institution that promulgates rules or guidelines pertaining to the
use of artificial intelligence, or by selecting to apply soft law such as the IBA Rules
on the Taking of Evidence to their dispute.
Even though various arbitral institutions and organisations have acknowledged
that artificial intelligence could impact proceedings and that regulation may be
required, almost none to date have amended their rules or soft law instruments
to expressly regulate the use of artificial intelligence in international arbitration. 118
116. See Draft bill of the Federal Ministry of Justice for the Modernisation of Arbitration Law,
available at https://www.bmj.de/SharedDocs/Downloads/DE/Gesetzgebung/RefE/RefE_Modernisierung_
Schiedsverfahrensrecht_2024_EN.pdf?__blob=publicationFile&v=3.
117. See below at Section IV(A)(2).
118. See Christian Aschauer, LCIA Perspectives Arbitration in the Current Wave of New
Technologies, dated 21 November 2018, available at https://www.lcia.org/News/lcia-perspectivesarbitration-new-technologies.aspx;
ICC, Policy statement on Artificial Intelligence, dated 21 November
2018; ICC, Statement on the Use of AI in Advertising and Marketing Communications, dated
27 March 2024, available at https://uscib.org/uscib-content/uploads/2024/03/2024-ICC-statementon-the-use-of-AI.pdf.
In April 2024, California-based arbitral institution JAMS published the " JAMS
Rules Governing Disputes Involving Artificial Intelligence Systems " as part of its " continuing effort to
provide our clients with the highest quality dispute resolution services...to meet the parties' needs
in a variety of situations, including artificial intelligence. " These rules are purportedly tailored to the
resolution of disputes over artificial intelligence systems but say little about the regulation of artificial
intelligence in the arbitration proceedings. See e.g., Sam Winter-Barker, JAMS Publishes Artificial
Intelligence Arbitration Rules, but Are They Fit for Purpose?, Kluwer Arbitration Blog, dated 27 June
2024) ( " The JAMS AI Rules are new arbitration rules intended to govern disputes involving AI. They
do not provide rules or guidance on the use of AI in arbitrations. Rather, they are a set of rules
designed to 'refine and clarify procedures for cases involving AI systems.' " ).
676
The Paris Journal of International Arbitration 2024‑3

https://www.bmj.de/SharedDocs/Downloads/DE/Gesetzgebung/RefE/RefE_Modernisierung_Schiedsverfahrensrecht_2024_EN.pdf?__blob=publicationFile&v=3 https://www.bmj.de/SharedDocs/Downloads/DE/Gesetzgebung/RefE/RefE_Modernisierung_Schiedsverfahrensrecht_2024_EN.pdf?__blob=publicationFile&v=3 https://www.lcia.org/News/lcia-perspectives-arbitration-new-technologies.aspx https://www.lcia.org/News/lcia-perspectives-arbitration-new-technologies.aspx https://uscib.org/uscib-content/uploads/2024/03/2024-ICC-statement-on-the-use-of-AI.pdf https://uscib.org/uscib-content/uploads/2024/03/2024-ICC-statement-on-the-use-of-AI.pdf

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

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