A hush engulfed the stadium as one Nestor Pitana pressed his index finger to his earpiece to listen in more closely. Tens of thousands within the stadium and billions more across the globe waited with bated breath as a discourse took place between Nestor at the Luzhniki stadium and the Video Assistant Referee (VAR) officials in another part of Moscow. Twenty two sports men on the pitch conversed animatedly among themselves in eager anticipation of the outcome. After a couple of agonising seconds that seemed like an eternity, the Argentine umpire pointed to a digital screen on the side of the pitch and solemnly jogged to it to have a second look at the action that had just taken place a few seconds earlier. By now you know that I’m recounting events that took place in the 2018 soccer World Cup final between France and Croatia.
The decision by the referee to seek digital assistance is one step closer to the advent of Artificial Intelligence (AI) in arbitration. Just think about it, you feed the computer with the details of the dispute, it processes the information and then reverts with an impartial, fair decision. Of course things will not be as simple as that but the advantages of a digitised Alternative Dispute Resolution (ADR) system would be phenomenal – turnaround time, integrity you name it. AI will reduce staff hours and by translation costs. Going digital in dispute resolution will definitely be a game changer.
The coin has two sides – a computer geek might hack into the AI system and compromise it. Yes, going digital comes with its risks – LinkedIn, Sony, Hilton Hotels are just some of a few household brands to fall victim to cybercrime and nothing stops the same happening to a digitised ADR system. The custodians of such systems would have to be well versed on the frontiers of Information Technology and be able to set up impregnable firewalls against hackers and their ilk. We’ve heard of frustrated factory workers stuffing peanut butter sandwiches down card readers, in this case sabotage could come in the form of a jaded employee systematically releasing viruses into the ADR system so as to interfere with its AI.
How about a member of staff who makes a mistake when keying in data on key specifics of the dispute? This will inevitably affect the Award and someone will have to bear the liability. Staff training will have to be deliberately thorough and more importantly assessment of staff personality.
The digital ADR system will require programming to give actionable awards. One can foresee a situation where the AI gives an award that is absolutely impartial yet unenforceable.
It will also be near impossible to analyse how decisions are arrived at using AI. What with the zeros and ones of binary code that computers use and answers will be hard to come by when queries as to the decision making process are raised by disappointed disputants.
Some areas like ethics and morals are absolutely beyond the digital realm. Being a machine a digital ADR system will be blind to these fields which are pivotal in decision making. Prudence suggests that there will have to be an old school decision maker on these, no compromises – a mature head that knows his onions and has been through his fair share of dispute resolution.
After all is said and done aggressive marketing will be the only way to convince the market that such tools are trustworthy – when they eventually do arrive. When millions are at stake, one’s psychology is bent towards grey haired wise looking individuals handling a dispute rather than AI.
Oh and you must be wondering what the referee decided after taking a long hard look at the VAR screen on the side of the pitch. He punished the Croats and awarded a penalty to the French. They eventually put four goals past the Croats one of which will go down in history as being the first VAR assisted goal in a World Cup final!
Qs. Gyavira Namulanda, MCIArb
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