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.
The Singapore Institute of Arbitrators invited me to debate the following motion: ‘This House Believes That Artificial Intelligence Will Have Replaced Arbitrators within Twenty-Five Years’. In short: can – will – algorithms replace arbitrators within a generation?
We were debating this last night. Here are my opening and closing statements.
As of this week, German lawyers are required to use an electronic communication tool designed especially for them: the special electronic lawyers’ mailbox (besonderes elektronisches Anwaltspostfach or beA). The problem is that the beA is inherently insecure, so it seems better to avoid using it. This would include, if possible, not litigating before a German court if there’s a chance that the opponent or the court might use the beA in the proceedings. This seems all the more appropriate where there is a risk of snooping or foul play by the opponent or third parties, or where the stakes are high – and when aren’t they?
Smart contracts are described as self-executing: how they are formed is how they will be performed. This is why some of us see no (or at least less) room for legal dispute over them.
It shouldn’t be this way. Where it’s efficient, it should be possible to breach a smart contract. Even though this may lead to a legal dispute.
Yes, blockchain technology can do things which conventional ledgers or registers cannot do. A few days ago I argued that this didn’t mean blockchain should replace traditional ways of recording legal transactions wholesale. Traditional ways of recording legal transactions embed functions which blockchains don’t embed yet. Where the law demands it or wherever else it makes sense we should think about implementing them.
Here’s in more detail what I had in mind.
After reading Caitlin Moon’s instructive blog Blockchain 101 for Lawyers I commented that we should ‘think of it as a cybernotary who can authenticate — everything’.
I’ve changed my mind.
For the avoidance of doubt, I’m all for catchy analogies. They help understand much of what’s going on in cyberspace. Even better than a catchy analogy, though, is an analogy that’s catchy and apt.
This really very long and quasi-academic post is based on a speech I gave to MBA students of the Management Development Institute of Singapore sometime in 2016. Subject: how do we resolve disputes and what borders, geographical or otherwise, do we cross in doing so? Borders and otherwise, geddit, I was talking about dispute resolution in cyberspace and algorithms.
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