Arbitration and technology should, and eventually must, interact or “tango,” say the authors.
Authors
Derick H. Lindquist, Professor and Dean, Jindal School of Psychology & Counselling, O.P. Jindal Global University, Sonipat, Haryana, India.
Ylli Dautaj, Managing Partner at DER Legal, Stockholm, Sweden.
Summary
Technology is rapidly changing the way law is practiced. The legal profession, including arbitration, will feel the effect of technological advancements in AI and Legal Tech. In fact, the Covid-19 pandemic has already pushed arbitration to either be virtual in toto or hybrid in other cases. An exclusively physical arbitration hearing is currently the exception, rather than the norm.
Admittedly this is a temporary and perhaps unsustainable situation, nevertheless the current landscape underscores that humans are replaceable. According to the authors, two contributory reasons for the quiet triumph of arbitration are procedural efficiency and access to adjudication. In other words, the procedure allows true experts to adjudicate, while the process remains informal and at the dispositive powers of the parties.
Incidentally, while capital-rich commercial actors can avail of this private procedure, non-commercial actors can ripe the fruits of a court system that has a reduced backlog. Hence, arbitration directly enables access to justice for sophisticated litigants and indirectly promotes access to justice for individuals and small enterprises by reducing backlog in courts.
“Because it works, private arbitral adjudication usurps the role of judicial litigation,” in some respects. In a similar vein, arbitration infused with AI, Legal Tech, and virtual platforms (“Arbitration 2.0”) can further enhance efficiency and access to adjudication. When Arbitration 2.0 is sophisticated enough and the desire to fully utilize it is present, it might be impossible or unwise to refuse its use.
Therefore, arbitration and technology should, and eventually must, interact or “tango.” In order to keep up to date and improve the means for redress, some fundamental legal values must be rejected, or at least reconsidered, lest legal civilization not survive.
Also, when the market speaks, it speaks with a strong voice. Consumer demand can be an important measure of efficiency and the institution of arbitration could do well to listen to its consumers. Open and free markets where innovation can flourish have proven superior for economic growth and political and legal stability.
Published in: Journal of Dispute Resolution
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