Last week­end the Asia ADR Sum­mit was held in Kuala Lum­pur. I had the hon­our and pleas­ure of par­ti­cip­at­ing in an Oxford-style debate on the top­ic: ‘This House believes that “human­ity” is dis­pens­able in arbit­ra­tion, and arti­fi­cial intel­li­gence will sup­plant arbit­rat­ors in the future’.

Here is my state­ment and my rebuttal.

There were two debat­ing teams and a mod­er­at­or, Chung Ting Fai. Dav­id Yek and I argued in favour of the motion. Our debate oppon­ents were Crys­tal Wong and Anirudh Krish­nan. Inter­est­ingly (per­haps), in a sim­il­ar debate in the past, I argued that arti­fi­cial intel­li­gence would not replace arbit­rat­ors with­in twenty-five years. Now, in Kuala Lum­pur, I would argue the oppos­ite. Then as now, it was a lot of fun.

The Statement

My esteemed fel­low speak­er in sup­port of the motion has giv­en con­vin­cing reas­ons why human­ity – the qual­ity of being human, humane even – is dis­pens­able in arbit­ra­tion and why arti­fi­cial intel­li­gence will sup­plant arbit­rat­ors in the future. I could leave it at that, espe­cially since my learned friend speak­ing against the motion has giv­en good reas­ons for being human, which are bey­ond doubt, but has not, in my opin­ion, giv­en a good reas­on why human­ity is indis­pens­able in arbitration.

But let me add some­thing anyway.

You will have noticed that the argu­ments of my esteemed fel­low speak­er were of an intrins­ic nature. Let me round them off with an extrins­ic reas­on. This may turn out to be a bit of a telling-off for the human listen­ers in the audi­ence, but I can­not help it.

Human­ity is dis­pens­able in arbit­ra­tion, and arti­fi­cial intel­li­gence will sup­plant arbit­rat­ors in the future because we humans allow it to hap­pen. It’s a bit like Grab and the tra­di­tion­al taxi industry.

Before continuing, I would like to state that I have no financial interest in Grab or any of its subsidiaries (collectively, ‘Grab’). In particular, I have not invested in Grab securities or benefited from warrants or other derivatives. I do not receive any remuneration from Grab, nor do I serve as a director or officer of any Grab company, and Grab or any other third party has not provided or agreed to provide me with any remuneration in connection with this debate.

All Well with Taxis at First

Today, Grab some­times acts as if it is the first to come up with the idea of ride-hail­ing ser­vices. That’s not true, of course, because for as long as there has been road trans­port – longer than there have been motor­ised vehicles – there has been an industry trans­port­ing people in vehicles from A to B: the taxi industry.

For a long time, mem­bers of the taxi industry have been the undis­puted top dogs in the field. This, it must be said, has made them com­pla­cent and com­fort­able in some parts of the world, to the det­ri­ment of users. It happened in our part of the world too. Does any­one remem­ber? It was only twelve years ago.

I live in Singa­pore, so I’ll use Singa­pore as an example. When I first came to Singa­pore in 2001, the only per­son-hail­ing rides were the old-school tax­is, and they were great. They were every­where, you could hail one on any street corner and it would take you to your des­tin­a­tion. A taxi was fast and cheap.

Market Consolidation

But as time went on, some­thing changed. Tax­is became rarer and rarer. Not rarer at first, but harder to come by. There were sev­er­al reas­ons for this, to do with the mar­ket con­sol­id­a­tion of taxi companies.

Driver Liability

For example, taxi com­pan­ies imposed strict liab­il­ity rules on their drivers. For reas­ons of over­all effi­ciency, a taxi driver involved in an acci­dent had to pay a high per­son­al con­tri­bu­tion to the set­tle­ment of claims, regard­less of wheth­er he was at fault or not. This cre­ated an incent­ive not to carry pas­sen­gers at times when acci­dents were more likely. The res­ult was that when there was a trop­ic­al down­pour and you needed a taxi urgently, the few brave tax­is out there would all be taken and none of the oth­ers would stop. You would be stuck where you were forever, or at least for a very long time, and it would be dif­fi­cult to explain to your date that you had no inten­tion of stand­ing her up.

Cleaning Duty

The taxi com­pan­ies also imposed strict clean­ing require­ments on their drivers. Drivers now had to clean their cabs them­selves at the end of their shift before they could go home. This was anoth­er reas­on why many taxi drivers soon stopped pick­ing up pas­sen­gers in bad weath­er or at dawn after a night out in the clubs.

SMS-a-Cab

Or my per­son­al favour­ite, the intro­duc­tion of call-a-taxi ser­vices via SMS. This was so con­veni­ent because you could now order a taxi to come to you for an extra charge. But it also meant that you could no longer just hail a taxi at the end of a big event. I exper­i­enced this many times myself: after a con­cert at the Indoor Sta­di­um in Singa­pore, the place was packed with people try­ing to leave. Taxi drivers knew this, so with­in three miles of the sta­di­um there were more tax­is than ordin­ary cars. In fact, they were so close you could see the whites of the drivers’ eyes. But no taxi would take you unless you ordered one via SMS for an extra three dol­lars, at a time when three dol­lars was often a quarter to a third of the fare.

All of this ali­en­ated the taxi pas­sen­gers, and resent­ment grew over time. But the taxi industry did noth­ing because it felt safe. Until at some point it was too much.

Enter Grab.

Alternative Transport Solution

What was new about Grab was not the idea of tak­ing people to places. Grab did just that. It did things dif­fer­ently to offer a new ride exper­i­ence, it also exper­i­mented a lot with new tech­no­logy and so on, but over­all it was always about get­ting someone from A to B. What was new about Grab, and what mattered to its users, was that it could do it faster, cheap­er and bet­ter than a taxi.

There are still tax­is. There are far few­er of them, but they still exist. But now even tax­is often drive under the Grab ban­ner, and it doesn’t look like this trend is going to reverse.

The Taxi Industry Within

You know where I’m going with this. Today, the taxi industry is us, the arbit­ra­tion industry, and Grab is AI. The unhappy pas­sen­gers are the unhappy users of arbit­ra­tion, that is, the parties.

We have always told the parties and ourselves that we offer a bet­ter dis­pute res­ol­u­tion exper­i­ence, that we are more indi­vidu­al and tailored than the state courts, which, to con­tin­ue the meta­phor, are the bus and train com­pan­ies in dis­pute res­ol­u­tion land. We, the arbit­rat­ors, the arbit­ra­tion insti­tu­tions and the arbit­ra­tion lawyers.

But for years, parties to arbit­ra­tion – mostly busi­ness people – have been telling us that they are no longer sat­is­fied. Arbit­ra­tion, they say, takes too long, it is too expens­ive and the pro­cess is too bloated. For years, we have nod­ded, vowed to do bet­ter at con­fer­ences and in pro­fes­sion­al art­icles, and tweaked our rules. But so far not much has changed in the eyes of our cli­en­tele. In par­tic­u­lar, the num­ber of their com­plaints has not decreased.

We are still not listen­ing to our tar­get audi­ence, the parties. Instead, we dis­cuss what AI can do in arbit­ra­tion, or dis­pute res­ol­u­tion in gen­er­al, and when, and how what AI does dif­fers from what humans do, wheth­er AI is cap­able of mak­ing a reasoned decision, or just mim­ick­ing a decision based on cal­cu­la­tions of a huge amount of data. This is all well and good, but it seems to me that we are dis­cuss­ing details at an exper­i­ment­al stage. Some of the new things that come out of this will stay, some will go.

Inter­est­ingly, and more import­antly, this is not what the parties are dis­cuss­ing. For them, the bot­tom line is still wheth­er there is a rel­at­ively quick and cheap way to resolve dis­putes. Busi­ness people, in par­tic­u­lar, are less inter­ested in how AI achieves this than in the fact that AI prom­ises to resolve a dis­pute faster, cheap­er and bet­ter than us humans, and soon.

The con­clu­sion is ines­cap­able and self-evid­ent. To the extent that AI deliv­ers on its prom­ise to be fast and cheap, and to the extent that we humans con­tin­ue to fail to deliv­er on that prom­ise because we are no longer able or will­ing to do so – per­haps because we have become com­pla­cent and com­fort­able –, we humans in arbit­ra­tion will go the way of the taxi industry. The fact that human­ity in arbit­ra­tion has become, or will soon become, dis­pens­able, and that arbit­rat­ors – as well as arbit­ra­tion law­yers and insti­tu­tions – will be sup­planted by AI, is not the fault of AI. We have only ourselves to blame.

The Rebuttal

My learned friend, who spoke against the motion, said that my examples of Grab and the taxi industry were very apt because they showed that a vehicle needs a human driver. He also said that AI suf­fers from inher­ent bias and there­fore AI arbit­rat­ors are not trustworthy.

To this I say that it is a mis­take to dwell on today’s state of affairs. Yes, most cars today still need a human driver. But driver­less cars are com­ing. In fact, they have already appeared in some cit­ies. The same will hap­pen with AI arbitrators.

And bias? Bias is not a phe­nomen­on first dis­covered in AI. In fact, it was first dis­covered in humans. And therein lies the rub. The users of arbit­ra­tion, that is, the parties, have been beg­ging us for a long time to do some­thing about our short­com­ings – it’s almost as if they’ve been com­plain­ing about too much human­ity (the flawed side, I mean). We didn’t listen, and now we’re whist­ling in the dark because AI arbit­rat­ors are on the horizon.

Will AI arbit­rat­ors be per­fect? Of course not. But they will be bet­ter at what the parties want arbit­ra­tion to do and be. And that’s the point.

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Do I really believe what I said in the debate? Isn’t it a bit rad­ic­al? Please see my related Linked­In post for context.