Driverless arbitration - Ben Giaretta, Partner at Fox Williams

Driverless arbitration - Ben Giaretta, Partner at Fox Williams

 

The most dramatic technological change on the horizon is likely to be driverless cars. Dramatic in the sense of the scale of the adjustment in our relationship with technology.

We accept as a normal part of our lives the fact that we keep in our pockets a device that has more computing power than the mainframe computer that NASA used to send astronauts to the moon. But our relationship with cars is different. For over a century we have built our societies around cars. We see them every time we step onto a city street. We know how they operate. We understand that accidents can be caused by man or machine. But soon, with the advent of driverless cars, everything will change.

There is no indication we are anywhere near developing driverless arbitration. However, the use of technology in arbitration will steadily increase, and there are lessons to be learned from the introduction of driverless cars. The main changes relate to the passenger, the vehicle and the context.

 

The passenger

 

The most important person in a car, of course, is the passenger. The primary purpose of a car is to convey a passenger (who might also be the driver) from one point to another.

We are so used to cars that we accept them unthinkingly, but when choosing whether to travel by car, rather than by an alternative means of transport, a passenger might weigh up the pros and cons: for example, the benefits of arriving at their destination quickly compared to the risk of a traffic accident.

Driverless cars bring that equation to the front of our minds again, with the added element that the presence of a driver gives the passenger confidence. The passenger can understand what the driver is doing, and they take comfort from the fact that the driver shares their sense of self-preservation and will avoid crashing the car. When presented with a driverless car, therefore, will the outcome of this equation deter passengers from using it at all?

Similarly, will a party trust an arbitration process that is driven by technology, or will they abandon it for another dispute resolution method? The new technology alters the equation, again. 

Or will they embrace the idea of technological change, but insist that a human remains on hand in case something goes wrong? The driverless taxis currently being deployed in Shanghai have a person in the driver’s seat watching in case the computer makes a mistake; and the driverless taxis in Phoenix, Arizona are being monitored remotely. Perhaps parties will always want a human watching the machine.

 

The vehicle

 

One of the main features of the design of the interior of a car is the control mechanism (the steering-wheel, pedals, etc). This will be redundant in a driverless car, unless there is someone inside the car ready to take over in an emergency. What will be the reaction of the passenger to a redesign of the interior? The inside of the car has looked much the same since its invention and it would be a shock to see anything different. There are also safety parameters that would prevent any radical alteration.

Parties in an arbitration at present have expectations about how an arbitration looks; or at least, they have expectations about the look of a hearing. Will they accept a redesign? Alternatively, will they prefer that arbitration remains relatively unchanged in appearance? And what about the safety parameters – the requirement under arbitration laws that there be a fair hearing and compliance with natural justice – how will these continue to influence the design of arbitration, even when there is a greater involvement of technology?

Also, driverless cars depend on vast quantities of data. Not only have the driving systems been created by complex modelling of data collected over many years, but the operation of those systems depends on the continuous gathering of data as the car moves. For there to be a step-change in arbitration technology, there will most likely need to be a sustained increase in the gathering of data. That might be the biggest obstacle to the entire removal of humans from arbitration, since it is unlikely that sufficient data relating to arbitration can be gathered, at least with current levels of access by non-parties to many parts of arbitration. The main changes may therefore be in areas in which data can be gathered: in the activities of one party alone, or in generic activities such as legal research which are not tied to any specific case.   

 

The context

 

Finally, many parts of the road environment are there for the human driver of a vehicle. These may become redundant as driverless cars become common. What need is there for traffic-lights, for example, if there are no drivers to see them, and if at any intersection the cars can communicate with each other? On the other hand, different technologies may emerge that are suited to the new vehicles – most obviously, apps on passengers’ phones that will allow them to give instructions to their cars.

The legal context will change too. “Dangerous driving” has no meaning when there is no driver. On the other hand, data protection will be more important. A car that is constantly gathering information about its environment will also be constantly gathering information about its passenger. And, given their continuous operation of a vital service, car companies might be regulated in the same manner as financial service companies today: we may have a Car Conduct Authority like we have a Financial Conduct Authority.

In the same way, greater use of technology will change the context of an arbitration. A client may be able to follow the progress of the preparation of a written submission via an app. An alert may come up on their phone when fees reach certain levels. The technology may also become part of the Internet of Things: for example, progress at a hearing might be monitored by in-room sensors which will trigger an order for lunch when the midday break is approaching. 

At the same time, the increasing complexity of the technology may require greater levels of regulation. It may not be enough for parties to adopt the guidance of “soft laws”; arbitration rules may need to be rewritten; and arbitral institutions might be elevated to a position of greater responsibility, monitoring everything that is going on in an arbitration and feeding information through to the arbitrators (to be read, perhaps, on apps on the arbitrators’ own phones).

It is predicted that lawtech will transform the legal industry, and “arbtech” will be part of that transformation. We can prepare for the changes to come by observing the impact of new technology in other parts of our lives.

 

 

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About the author:
Ben Giaretta, Partner at Fox Williams LLP, is an international arbitration lawyer with a wide range of experience across many different sectors.  He is a Chartered Arbitrator and Fellow of the Chartered Institute of Arbitrators, and is the current Chair of the London Branch of the Chartered Institute of Arbitrators. He is a member of the Consulting Editorial Board of Lexis PSL Arbitration.