What to Know
- AI definitions vary across laws and arbitral rules, shaping IP arbitration risk and strategy.
- New AI guidelines stress disclosure, data security and limits to protect due process integrity.
- Predictive analytics and AI use raise bias, enforcement and award validity concerns in disputes.
Introduction
We are in an age where artificial intelligence-enabled legal applications have flooded the legal world overnight. International and domestic arbitration-specific AI tools compound the number of applications useful to general commercial disputes practices. Layer on top AI programs aimed exclusively at intellectual property, and IP arbitration practitioners and arbitrators are awash in AI. What’s more, international arbitrators must also navigate the emergence of AI laws and guidance from countries, arbitral institutions and other alternative dispute resolution (ADR) organisations, committees and working groups. In this chapter, we consider the practical implications of these developments.
The chapter first discusses the definitions of AI that are relevant to the IP arbitration community, which are many and growing, and examines how applicable laws, institutional standards and party‑ or tribunal‑imposed rules interact across jurisdictions. It then reviews the current landscape of AI‑related standards and guidance issued by arbitral institutions and ADR bodies, before addressing the growing use of AI predictive analytics and the professional and procedural issues this raises.
The chapter proceeds to highlight several instructive cases that have already confronted AI‑related issues, and it concludes by briefly considering future developments, including the potential transformation of hearings through real‑time AI use.
The Definition of AI and Why it Is Important
Defining artificial intelligence is a natural starting point. The numerous definitions – no singular definition is widely accepted – range from the scientific to the philosophical.
For international IP arbitration, the relevant definitions of AI are those provided by the following:
- applicable governing law;
- governing arbitral institutional rules;
- agreed upon party-supplied or arbitrator-imposed protective orders; and
- the law governing enforcement actions.
This disparate list of overlapping sources gives rise to significant variation in what constitutes AI.
