Don't rage against the machine: why AI may be the cure for the 'moral hazard' of party appointments

摘要

In 2010, Jan Paulsson decried the use of party-appointed arbitrators in international arbitration as a 'moral hazard' that threatened the legitimacy of arbitration as an impartial method of dispute resolution. He suggested a series of reforms, most notably allowing arbitral institutions to make all arbitrator appointments. Over the past decade, commentators have debated Paulsson's arguments and whether arbitrators should be chosen by parties or arbitral institutions, relying on an assumption that those two methods are the only ways by which arbitrators can be selected. This essay demonstrates that both approaches are fundamentally flawed, because they are subject to the self-interest . and biases of human beings. Moreover, it explains how modern technology has produced a new way by which arbitrators can be selected-specifically, via artificial intelligence (AI)-that allows for parties to have input into the selection process but removes the issues that arise when parties select arbitrators directly. As this essay illustrates, using an AI to select arbitrators will allow arbitrators to truly be independent, ensure that arbitrators are selected for their merit and not for their connections, eliminate incentives for compromise awards and the use of dissents to communicate leanings to future appointing parties, and increase diversity in arbitrator appointments.