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Regulating Generative Artificial Intelligence in Domestic and International Arbitration: A Content-Neutral Blueprint for Action- ARIA - Vol. 34, No. 4

Author(s): 
S. I. Strong
Page Count: 
26 pages
Published: 
October, 2024
Jurisdictions: 
International
Practice Areas: 
Arbitral Process,
Practice & Procedure,
Basic Standards of Due Process,
Agreement to Arbitrate,
Procedural Orders,
Sources of Arbitration Law,
International Institutions and Rules,
National Institutions and Rules,
Court Decisions,
Arbitral Awards,
Arbitral Decisions,
BITS
Tags: 
Artificial Intelligence (AI),
Soft Law in International Arbitration
Author Detail: 

S. I. Strong, Ph.D. (law), University of Cambridge (U.K.); D.Phil., University of Oxford (U.K.); J.D., Duke University. The author, who is qualified to practice as an attorney in New York, Illinois, and Missouri and as a solicitor in England and Wales and in Ireland, is the K.H. Gyr Professor of Private International Law at Emory University. 

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Description: 

Originally from The American Review of International Arbitration (ARIA)

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In 2023, ChatGPT—an early form of generative artificial intelligence (AI) capable of creating entirely new content—took the world by storm. The first shock came when ChatGPT demonstrated its ability to pass the U.S. bar exam. Soon thereafter, lawyers and judges were found to use ChatGPT in actual litigation, raising questions about the extent to which generative AI is being or will be used in domestic and international arbitration.

Some within the legal community find technology like ChatGPT untroubling. Others believe generative AI is problematic as a matter of due process and procedural fairness due to its propensity not only to misinterpret legitimate legal authorities but to create fictitious sources through a process known as hallucination. These phenomena suggest that participants in arbitration cannot rely on anything contained in a document created by generative AI.

Thus far, the legal response to generative AI has been partial, piecemeal, and panicked. No consensus exists as to what can or should be done, let alone who should be responsible for regulating the use of generative AI by arbitrators, arbitral secretaries, practitioners, and unrepresented parties in arbitration.

This article analyzes the narrow issue of how best to address the problems associated with generative AI in domestic and international arbitration. Rather than proposing specific solutions to the issue, this article focuses on identifying who can and should act in the short, medium, and long term. In so doing, it provides the arbitral community with a content-neutral blueprint for immediate action.