LIMITATION ON THE USE OF ARTIFICIAL INTELLIGENCE (AI) IN ARBITRATION UNDER THE NEW YORK CONVENTION
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Abstract
AI as a new technology clearly raises many questions across all public and private areas, arbitration being no exception. Although AI introduces numerous beneficial tools for arbitration such as document analysis or data collection, it also poses several risks. The most significant and most discussed risks include compromising due process, integrity of the proceedings, and confidentiality of arbitrators. Jeopardizing these fundamental values and principles of arbitration also entails a risk of making an arbitral award revocable, unrecognizable and unenforceable.
Since AI is a recent phenomenon, there is still no detailed regulatory framework or developed case law providing parties with rules on the use of AI in arbitration that would minimaze the risk of issuing unenforceable award. Some arbitral institutions seek to address this legal uncertainty and publish their guidelines regarding the use of AI in arbitration proceedings. However, without established arbitration practice, it is not yet clear whether these rules are sufficient to ensure due process, procedural integrity, and confidentiality of arbitrators when using AI. It is therefore necessary to look also at other sources of regulation that would provide a framework for the lawful use of AI in arbitration. One such source is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and related case law. If parties want to have an arbitral award that is recognizable and enforceable even in countries outside the jurisdiction of the arbitral tribunal, they should not disregard the rules set forth in this New York Convention.
This article considers the limitation of the use of AI in arbitration from the perspective of the New York Convention. Specifically, it focuses on a violation of the right to be heard pursuant to Article V(1)(b) of the New York Convention and a violation of public policy pursuant to Article V(2)(b) of the New York Convention.
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