Navigating the Future of Arbitration: The SVAMC's Guidelines on AI Use

Introduction:

Artificial Intelligence (AI) is revolutionizing various sectors, and arbitration is no exception. The Silicon Valley Arbitration & Mediation Center (SVAMC) has recognized the necessity to integrate AI responsibly within arbitration processes. On April 30, 2024, the SVAMC published the "Guidelines on the Use of Artificial Intelligence in Arbitration," aiming to establish a fair, secure, and balanced framework for AI utilization. These guidelines are pivotal for maintaining the integrity and efficiency of arbitration while safeguarding confidentiality and ensuring ethical standards.

Understanding AI in Arbitration:

According to the SVAMC, AI encompasses any computer system performing tasks associated with human cognition, such as understanding natural language and generating human-like outputs. This broad definition ensures that all current and future AI variations are covered. The guidelines are structured into three parts, addressing participants in the arbitration process, parties and their representatives, and arbitrators.

Key Guidelines for AI Use in Arbitration:

Safeguarding Confidentiality (Guideline 2)

Confidentiality is a cornerstone of arbitration, and using AI tools introduces new risks. Guideline 2 emphasizes the responsibility of all participants to ensure AI tools align with confidentiality obligations. Publicly available AI tools, like ChatGPR, often record and store user data, potentially exposing confidential information. Therefore, only AI tools with robust data protection measures should be employed. Participants are urged to rigorously vet and authorize AI tools, considering data use and retention policies, and to anonymize or redact sensitive information when necessary.

Disclosure of AI Use (Guideline 3)

The guidelines do not mandate general disclosure of AI tool usage, leaving it to the arbitral tribunal's discretion based on case-specific circumstances. While AI is already embedded in various legal processes, such as e-discovery and legal research, the decision to disclose its use should consider due process and applicable privileges. If disclosure is deemed necessary, details like the AI tool's name, version, usage, and the complete prompt and output should be provided to ensure transparency and reproducibility of results.

Duty of Competence and Diligence (Guideline 4)

AI-generated outputs can be factually or legally incorrect, posing risks if not properly monitored. Guideline 4 stresses the responsibility of party representatives to verify AI outputs for accuracy. Ethical standards and professional diligence must be maintained, and representatives are accountable for any errors or inaccuracies in AI-generated submissions. The phenomenon of "hallucinations," where AI produces plausible yet incorrect results, underscores the need for rigorous prompt engineering and retrieval-augmented generation to minimize errors.

Non-Delegation of Decision-Making (Guideline 6)

Arbitrators must retain their decision-making responsibilities, as emphasized in Guideline 6. While AI can assist with data management, it should not replace the arbitrator's independent analysis of facts, law, and evidence. The human element is crucial for the fairness and integrity of arbitration, and delegating decisions to AI undermines this principle. Arbitrators must exercise caution in delegating even administrative tasks to AI, ensuring a thorough review of AI-generated outputs.

Conclusion:

The SVAMC's Guidelines on the Use of Artificial Intelligence in Arbitration represent a significant step toward integrating AI into arbitration while upholding ethical standards and confidentiality. By emphasizing responsible AI usage, safeguarding sensitive information, and preserving the human element in decision-making, these guidelines aim to enhance the efficiency and integrity of arbitration. As AI continues to evolve, adherence to these guidelines will be crucial for maintaining trust and fairness in the arbitration process.