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AI v. arbitrator : how can the exclusion of evidence increase the appointments of the arbitrators?

Jurgis Bartkus (UGent)
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Abstract
Background: The present article was prompted by the growing influence of artificial intelligence in international arbitration. Artificial intelligence poses a challenge to the arbitration market since its advantages make it inevitable that in the future, it will take over some of the arbitrators' fact-finding functions. Accordingly, the question arises as to how arbitrators can improve factfinding and, consequently, maintain their demand in the arbitration market. This article,analyses in detail one of the alternatives for such an improvement - a stricter application of the rule on the admissibility of written witness testimony.Objects: The article sets out the following objectives: (1) to uncover why artificial intelligence could be considered a better fact-finder than the arbitrator; (2) to identify how arbitrators apply the rule on the admissibility of written witness testimony in international arbitration proceedings; (3) to justify a different application of the latter admissibility rule that both improves the quality of fact-finding and, accordingly, allows arbitrators to keep pace with artificial intelligence.Methods: The article is grounded in the doctrinal legal research method since it will examine three legal sources: 1) the widely applicable IBA Rules on the Taking of Evidence in International Arbitration; 2) the arbitral tribunals' awards; (3) legal scholarship. The research additionally uses an economic analysis of law as well as an interdisciplinary approach, which reveals certain psychological phenomena related to decision-making in arbitration.Results and Conclusions: The application of the rule of admissibility of written testimony of a witness in international arbitration leads to various negative consequences in the fact-finding process. For arbitrators to keep pace with artificial intelligence in the fact-finding process and increase their demand in the arbitration market, it is necessary to adopt a stricter approach to the latter admissibility rule. This approach leads to the exclusion rather than the evaluation of written witness testimony in international arbitration proceedings.
Keywords
international arbitration, admissibility of evidence, witness statement, cognitive bias, artificial intelligence

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MLA
Bartkus, Jurgis. “AI v. Arbitrator : How Can the Exclusion of Evidence Increase the Appointments of the Arbitrators?” ACCESS TO JUSTICE IN EASTERN EUROPE, no. 1, 2023, pp. 111–24, doi:10.33327/AJEE-18-6.1-a000114.
APA
Bartkus, J. (2023). AI v. arbitrator : how can the exclusion of evidence increase the appointments of the arbitrators? ACCESS TO JUSTICE IN EASTERN EUROPE, (1), 111–124. https://doi.org/10.33327/AJEE-18-6.1-a000114
Chicago author-date
Bartkus, Jurgis. 2023. “AI v. Arbitrator : How Can the Exclusion of Evidence Increase the Appointments of the Arbitrators?” ACCESS TO JUSTICE IN EASTERN EUROPE, no. 1: 111–24. https://doi.org/10.33327/AJEE-18-6.1-a000114.
Chicago author-date (all authors)
Bartkus, Jurgis. 2023. “AI v. Arbitrator : How Can the Exclusion of Evidence Increase the Appointments of the Arbitrators?” ACCESS TO JUSTICE IN EASTERN EUROPE (1): 111–124. doi:10.33327/AJEE-18-6.1-a000114.
Vancouver
1.
Bartkus J. AI v. arbitrator : how can the exclusion of evidence increase the appointments of the arbitrators? ACCESS TO JUSTICE IN EASTERN EUROPE. 2023;(1):111–24.
IEEE
[1]
J. Bartkus, “AI v. arbitrator : how can the exclusion of evidence increase the appointments of the arbitrators?,” ACCESS TO JUSTICE IN EASTERN EUROPE, no. 1, pp. 111–124, 2023.
@article{01HPP0SN0S1C3R1P2603DBX78K,
  abstract     = {{Background: The present article was prompted by the growing influence of artificial intelligence in international arbitration. Artificial intelligence poses a challenge to the arbitration market since its advantages make it inevitable that in the future, it will take over some of the arbitrators' fact-finding functions. Accordingly, the question arises as to how arbitrators can improve factfinding and, consequently, maintain their demand in the arbitration market. This article,analyses in detail one of the alternatives for such an improvement - a stricter application of the rule on the admissibility of written witness testimony.Objects: The article sets out the following objectives: (1) to uncover why artificial intelligence could be considered a better fact-finder than the arbitrator; (2) to identify how arbitrators apply the rule on the admissibility of written witness testimony in international arbitration proceedings; (3) to justify a different application of the latter admissibility rule that both improves the quality of fact-finding and, accordingly, allows arbitrators to keep pace with artificial intelligence.Methods: The article is grounded in the doctrinal legal research method since it will examine three legal sources: 1) the widely applicable IBA Rules on the Taking of Evidence in International Arbitration; 2) the arbitral tribunals' awards; (3) legal scholarship. The research additionally uses an economic analysis of law as well as an interdisciplinary approach, which reveals certain psychological phenomena related to decision-making in arbitration.Results and Conclusions: The application of the rule of admissibility of written testimony of a witness in international arbitration leads to various negative consequences in the fact-finding process. For arbitrators to keep pace with artificial intelligence in the fact-finding process and increase their demand in the arbitration market, it is necessary to adopt a stricter approach to the latter admissibility rule. This approach leads to the exclusion rather than the evaluation of written witness testimony in international arbitration proceedings.}},
  author       = {{Bartkus, Jurgis}},
  issn         = {{2663-0575}},
  journal      = {{ACCESS TO JUSTICE IN EASTERN EUROPE}},
  keywords     = {{international arbitration,admissibility of evidence,witness statement,cognitive bias,artificial intelligence}},
  language     = {{eng}},
  number       = {{1}},
  pages        = {{111--124}},
  title        = {{AI v. arbitrator : how can the exclusion of evidence increase the appointments of the arbitrators?}},
  url          = {{http://doi.org/10.33327/AJEE-18-6.1-a000114}},
  year         = {{2023}},
}

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