Tuesday, August 16, 2022

Technology and arbitration are intertwined in the pursuit of justice: Justice DY Chandrachud

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Stressing on the importance of technology in delivery of justice, Supreme Court Judge Justice D.Y. Chandrachud on Saturday said that technology and arbitration were so intertwined in the pursuit of justice that it was impossible to discuss either of these concepts without referring to the other.

Speaking during the ongoing International Conference on “Arbitration in the era of globalisation,” Justice Chandrachud said, Technology and arbitration are so intertwined in the pursuit of justice that it is impossible to discuss either of these concepts without referring to the other. While technology expands the realm of arbitration, making it more cost-effective and efficient, arbitration is entrenching as the best dispute resolution mechanism for issues involving the complex interplay of law and technology. Artificial intelligence and technology are slowly penetrating various walks of life.

Robot driven cars, robot helpers and robot adjudicators are considered essential in this Morden, fast paced world. However, the technological advancement are not accompanied by the development in the legal framework. This eventually leads to a situation, where issues relating to technology law become non-adjudicatory as there is a lack of lack of a unified legal frame work governing the field. For example – a plea seeking damages against the damage caused by robot driven car cannot be adjudicated unless the issues of personhood and accountability of Artificial intelligence are settled. Technology and artificial intelligence are integrated into commercial transactions. One such example is a smart contract where the terms and conditions of the contract are encoded.

A breach in the terms of the contract would automatically enforce the contract. one example of such contract in the insurance sector is providing travel insurance through a smart contract so that when transport is delayed the compensation for the delay is automatically credited to the account of the insurer. The decentralised nature of smart contracts makes it increasingly difficult to identify the place of performance and obligation. Therefore arbitration is a well suited method of dispute resolution for transactions such as smart contracts. The detachment of arbitration from national jurisdictions, the ability to offer specialised arbitrators who are well versed with the cutting edge technology and evidentiary flexibility are some of the advantages that arbitration as a mechanism of dispute resolution hold over the traditional court system in adjudication of technological issues. Since disruption in commercial transactions for a few hours can cause substantial financial damage. The key to decide the appropriate dispute resolution mechanism is the expedition of solving disputes and providing interim reliefs. Technological disputes involve confidential data and carry enormous financial implications, making arbitration a well suited choice of dispute resolution.The adjudication of technology and artificial intelligence disputes can be classified into two kinds- first, non- arbitral disputes that are incapable of settlement of arbitration which involves public rights and thrid party interests such as privacy, data confidentiality, personhood and accountability. Second, arbitral issues which involve the resolution of disputes such as technology contract infringement. However, all Arbitral issues are not necessarily desired to be Arbitral. Absence of delay and cost efficiency are the two most important features of arbitration. Although in practice neither is Arbitration affordable nor is it always time efficient. It has been found that arbitration is more expensive in than litigation in many contractual disputes. There are also arguments that arbitration agreement might not comply with the requirements of rule of law as confidentiality is antithetical to transparency and accountability and party appointment of arbitrators is hostile to independence. The arguments against rule of law coupled with non-accessibility perhaps make arbitration seem to be a less desirable option. Therefore, it is imperative that the principles of governing arbitration evolve to stand the test of time and not be drawn into the trenches of the litigation system. Legal professionals from across the globe are also suggesting the implementation of smart contract arbitration where dispute resolution takes place electronically on the block chain. The arbitration clause is coded into a smart contract where the arbitrator would be the algorithm itself. The auk jurisdiction task force recently published the digital dispute resolution rules which provides a procedural framework to resolve disputes arising out of hi-tech digital technologies such as crypto assets, crypto currency, smart contracts, black chaina nd fin tech applications.

The rules provide three methods for dispute resolution -1) automatic dispute resolution by which the dispute is automatically resolved by the automatic selection of the person/ panel or artificial agents whose decision would be directly enforced

2) by arbitration3) by expert determination of the dispute Unlike the traditional arbitration set up where the parties chose the members constituting the arbitration Tribunal, in automatic dispute resolution the arbitrators are appointed based on the preferences of the number, identity and qualifications indicated by the parties. Since traditional arbitration is slowly but steadily starting to resemble the traditional court system given the high cost and time consumption in the settlement of disputes, smart contract arbitration seems to be an effective alternative. However, algorithms as we know are not free of bias. Prominent AI researchers have written that the facial recognition software is less accurate at identifying women and people of color because the software has predominantly been provided pictures of white men. Similar concerns have been raised in language algorithms where racist and se ist language is used as the training data. This inherent bias in the algorithm would manifest various forms of discrimination against the consenting parties. The inclusion of arbitration causes in smart contracts should not beade a default option rather it must depend on the plausible issues that could arise from the breach of the smart contract.
”Change is the only constant in life”- heraclitus
Technology is transforming the practice of law in an incredible way. If used appropriately, technology and arbitration can be uniquely intertwined to deliver Justice. Arbitration specialist must utilize the new technological advancements to supplement the efforts of the justice system to reduce pendency. Also providing their clients with a confidential and efficient system of adjudication.

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