Imagining the next generation of arbitrators…
By Garv Malhotra*
The development of arbitration as a formal system of dispute resolution has transfigured it into a highly evolved version of its primitive self a century back. Alongside the process, the players have also matured into influential stakeholders with defined roles and scope of flexibility. So how have the profiles of arbitrators changed over time?
In 1996, sociologist Yves Dezalay and lawyer Bryant Garth authored a phenomenal book entitled ‘Dealing in virtue’[i]. They sought to find the magic ingredient(s) of a successful arbitrator in past and at the time. Based on their analysis they opined that the first generation of arbitrators was ‘the grand old men‘, those who were distinguished legal personalities in their domestic countries but with no specialization in arbitration. The second generation, which they opined to be prevailing at the time of their study, was ‘the technocrats‘, those who were career arbitration specialists and technical experts of the process.
In 2012, academician Thomas Schultz and practitioner Robert Kovacs wrote a brilliant article titled ‘The Rise of a Third Generation of Arbitrators‘[ii]. In this article they opined that a Third Generation of Arbitrators has come to rule the ranks. These were ‘the managers‘ of the dispute resolution process. This was because parties saw disputes as a problem that had to be ‘managed’.
This short piece is not an attempt by the author to add another work in this series by analyzing past and contemporary trends to conclude that a new era is here. It merely predicts that a new era shall dawn. No sociological study was employed for the purposes of this article and hence the hypothesis is as abstract as a speculative proposition could possibly be. The methodology employed is a careful blend of daydreaming and imagination through the glasses of knowledge of contemporary trends in arbitration. The imagination is untamed but, it is reined by the ropes of practicalities of dispute resolution.
In this article, I attempt to imagine and forecast the development of ‘arbitrators’ one generation down the line. What profiles will they have and what will be the most sought after attributes. Truth be told, I am a young counsel and have never been an arbitrator and hence I apologize if some of my understandings of practicality appear naive.
II. The future of arbitration process:
As the arbitral process evolves, it moves towards uniformity, efficiency and possibly transnationalism. It is increasingly becoming the default mechanism for resolution of commercial disputes. There is increased proliferation of other international dispute settlement bodies and cross-fertilization of academia and practice within them.
In parallel, technology has evolved at an exponential pace. It has been doubling in capacity every two years as observed and predicted by Moore[iii] in 1965. Today you can easily find a 1 terabyte hard disk which is the size of the 1.4 megabytes floppy disks that were common a decade ago.
So a preliminary question that comes to mind in this background is, how will the future arbitration process look like, say two to three decades down the line?
I believe that in the future, arbitrations will be conducted in a completely virtual environment. All players, including arbitrators, counsels, parties, witnesses etc. will participate remotely from their respective offices or residences. Everyone would press a button/click a link/wear visual effects glasses (or whatever trigger or medium may exist at the time) and be teleported into a virtual environment. This would virtually appear like any conference hall or arbitration room, customized to suit the requirement of a particular case. It will have virtual screens for documents, exhibits and presentations. It will have constant tech support on standby to avoid any disruptions. All pleadings will be filed, operated, maintained and updated electronically and no papers would be needed. Every document will be stored in digital cloud vaults with ‘need to know’ basis access.
Artificial Intelligence (“AI”) will become an essential element of arbitration efficiency. All ancillary functions of the tribunal beyond the core adjudicative functions would be delegated to AI. Tasks like procedural orders, hearing notes, computations etc. will be handled by AI. AI would completely obviate the need for translators, transcription professionals, logistical assistants and most importantly, the secretary of the tribunal.
The scope of participation of AI will be decided mutually by the parties at the time of the Terms of Reference. Based on the common consent of parties, the AI will be programmed regarding its scope of work and to be impartial and efficient in its decision. Thus, no Yukos-like scenario would possibly arise. Of course, legal framework would have to evolve ‘in-sync’ with the technological developments to draw the outer limits of party autonomy qua technology.
As per the study by Shultz and Kovacs, disputes have today become like problems that have to be ‘managed’. The author believes, with the growth of a new generation or class of high level players like third party funders and insurance companies, the future of disputes is mainly in the figures. The value of a dispute to a client is currently and will continue to become increasingly financial. They will be nothing more than entries in the ‘suspense’ account of the company. The parties will become more detached and dispassionate to the cause of action. The speculations of winnings and risks of losing will be hedged by funders and insurers. The realms of justice and dispute resolution will grow independently and it would be accepted that they do not necessarily need to overlap.
If this is even a possible future evolved version of arbitration process, how will the leader/masters/managers of the process look?
III. The future arbitrators:
The author believes that some attributes will remain extremely important as they have been in the past e.g. specialization in law and practice of arbitration, management abilities, experience, specialization in the substantive law or technical discipline. It is however believed that the following attributes will become essential-
- Comfort with technology
Technology like video conferencing, AI, deep web data mining etc. are going to become fundamental to arbitration in the future. It will become essential for arbitrators to be extremely tech-savvy. The absence of technical comfort will be seen as a major barrier to efficiency. This will be explained further down.
With increasing transparency, there will be a substantial employment of statistics and data analytics. All arbitrators will have a public profile with an efficiency rating (including cost, managerial skills, business acumen, legal acumen, availability etc.) and will be searchable on public databases. Those with a higher efficiency rating will certainly be preferred. Internally, the performance of each arbitrator will be examined by AI to transparently and regularly report efficiency to the involved parties and the tribunal.
Technologies like deep web mining and complex algorithms will be used by parties to select arbitrators based on a variety of factors like inclination towards formalism, personal and issue conflicts, previous awards and publications, availability etc. This will help parties in making more informed choices but will also increase speculation on the impending awards.
Most of all, it will help lawyers answer the two most puzzling question that clients have posed since eternity, (1) what are my chances? and (2) how long will it take?
- Business acumen & ability to encourage settlement efficiently and creatively
With commercial dispute resolution process becoming increasingly different from the traditional courtroom style of adjudication, the mindset of the adjudicators is expected to follow. As resolution moves further from the traditional notion of equitable justice, future arbitrators will need to have demonstrable commercial sense in a world where disputes to parties are becoming merely figures of profit and loss. Moreover, the ability and creativity of an arbitrator in efficiently resolving disputes by punctuating the process with ‘out of the box’ hybrid mechanisms of settlement and creative solutions will become important. Those with the most efficient and effective style will be the most successful.
Some skill that the author believes will become redundant in the long run are-
- Language skills– Technology will allow for highly accurate and easily consumable real time translations thus eliminating the need to have a multilingual skill set. Nicholas Negroponte[iv] predicts that humans will ingest information, including languages.
- Nationality or residence– With increasing globalization and movement towards transnationalism (assuming geopolitics to be growing at a constant pace, which is a humorous proposition in the year 2017), there will be no positive effect of nationality. The negative effect i.e. not being from the same countries as the parties will remain.
The author hopes to be around to be able to see for himself whether this prediction comes true or whether it becomes a source of humorous reflection. It is speculated that the next (or possibly the one thereafter) generation (whenever it comes) will be the generation of (etymologically) ‘true’ technocrats i.e. the advocates of technocracy. As this label was already (mis)employed by Dezalay and Garth to categorize the second generation, I shall call them, ‘the Technostars‘.
(* Garv is a Counsel specializing in International and Commercial disputes with a focus on arbitration. He appears before the Supreme Court of India other courts and tribunals. He graduated in law and commerce from GNLU and studied arbitration at the Paris Academy. Currently, Garv is on an academic hiatus pursuing the MIDS LL.M program in Geneva. He can be reached at firstname.lastname@example.org.)