32 American Review of international Arbitration 337-359 (Jurist 2021)
February 1, 2022
Arbitration’s next technological frontier is not yet zooming into focus. Largely impelled by the COVID-19 pandemic, the arbitral community is mostly fixated on integrating and mastering existing technology in the remote conduct of evidentiary hearings, preparatory conferences and argument. While many advocates still prefer the in-person hearing experience, arbitrators focused on rendering their awards largely discern immaterial difference between the in-person and remote processes to decide many types of cases. Still, the ongoing technical accommodation of the arbitral process is morphing into a hybrid meld of in-person hearings and remote conduct that will likely be circumstantially dependent. The larger cases will certainly retain in-person elements, while some of the smaller or more document-centric cases will explore online dispute resolution. In between, the vast bulk of the cases will employ whatever technology in whatever combination makes sense to promote a speedy, economic and fair resolution.However, the potential for future process disruption by transformative technology—both in terms of its impact on the process itself and the nature of conflicts to be considered—is barely appearing on the collective radar screen. The discussion initially was focused on how blockchain technology might impact arbitration. More recently, recognition of artificial intelligence (“AI”) has surfaced, including not only over use of systems aiding counsel to sort the wheat from the chaff in discovery, but also to move toward predictive analytic algorithms for insight into the likelihood of particular results. There also had been the beginning of a deeper look at how current AI technology might be integrated into both litigation and the arbitral process, but this was just the tip of the iceberg. Ongoing developments in deception detection, the use of artificial intelligence, machine learning and quantum computing have the potential to disrupt arbitral systems at a hitherto unseen speed. So, perhaps we had best pause to look at the horizon and see what iceberg might be headed our way, lurking beneath the surface in the not-too-distant future. After all, forewarning offers practitioners the opportunity to be forearmed through timely adjustments, rather than tardy in their reactions to these changes.