Editor’s Note: The Fourth Seminar of the International Commercial Expert Committee of the Supreme People’s Court and Reappointment (New appointment) Ceremony of Expert Members was held successfully on September 25, 2024. Over 40 experts from more than 20 countries and regions focused on the theme of the “Collaborative Dialogue, Diverse Integration, Peaceful Development” during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the members of expert committee and distinguished guests during the discussion session on Topic Four Innovation in digital era: AI’s application in dispute resolution and its outlook would be posted on the CICC’s website.

Innovation in a Digital Era: 

AI’s Application in Dispute Resolution and its Outlook

Christopher Campbell-Holt

Registrar and Chief Executive of the Astana International Financial Centre Court and International Arbitration Centre

Enforcement Judge of the Astana International Financial Centre Court

“There will undoubtedly be limits to how far AI will be able to progress. Will we reach a time when AI can adequately assess complex legal arguments or develop new legal principles? This is still to be seen. For now, machine learning systems do have an increasingly important role to play in assisting lawyers to analyse and produce legal documents, and technology can assist judges to make decisions, but they cannot substitute complex human reasoning and judgment”

Mr. Christopher Campbell-Holt

Introduction

The AIFC Court is an international commercial court in Astana, the capital city of Kazakhstan. It commenced operations on 1 January 2018. The Court is led by The Rt. Hon. Lord Burnett of Maldon, former Lord Chief Justice of England and Wales.  He is supported by ten judges who understand the international commercial world and are amongst the most experienced and distinguished judges from the common law system with global reputations for absolute independence and impartiality.

The Court has completed and enforced 128 Judgments.  It also supervises the case work of the International Arbitration Centre in Astana which has completed more than 3,200 arbitration and mediation cases.  The disputes have been complex, including all manner of commercial matters, and claim values have been in the multiple hundreds of millions of US dollars.  All Judgments have been enforced to 100% satisfaction of the parties.  48% of the cases have involved foreign investors from 28 countries, and 20 cases have involved Chinese investors doing business in Kazakhstan.  The applicable laws in disputes have been English law and Astana International Financial Centre law, modelled on the laws of England and Wales, as well as Kazakh law.  The Court has been recognised by global corporations as the “deal breaker” when making final decisions to invest in Kazakhstan and has become the model for international commercial dispute resolution in Eurasia.

At the heart of what we do at our Court is technology and AI.

Will your dispute be decided by a human being in the future?

I will start by highlighting the advantages of online dispute resolution, AI, and smart programming “to suggest resolutions (not, in my view, to determine outcomes)”.

But first, what is AI?

The type of AI being considered in dispute resolution is “machine learning”: essentially, where an AI system is designed to map patterns in the training data that is passed through it and then draws on that mapping to generate outputs and answers. The AI system is designed, and the training data selected, by human programmers, but the mapping process is automated and occurs without human intervention. As further data is passed through the system, so it continues to adjust and calibrate its pattern mapping to focus in on the statistically least wrong outputs, given the data passed through it. Once trained, an AI system can generate decisions, predictions, spot analogies and so on. Developers will test the system to check that outputs are correct, but there will often be no transparency regarding how or why a particular output was arrived at.

Use of AI to date

Many countries have started to adopt AI in dispute resolution, and a few are beginning to use it to replace judges (at least initially) for low value, low complexity disputes. Estonia is at the forefront of this in Europe and has designed, and recently started to implement, a system which allows AI to issue decisions in low value cases.

In China, we know that the Hangzhou Internet Court, which operates 24/7, uses virtual judges to reach decisions in disputes involving digital matters. The average length of a case is around 40 days and although rulings can be overturned by human judges, no appeal has been brought in approximately 98% of cases.

“Internet courts” have been established in Beijing and Guangzhou, using machine learning technology to automatically generate judgments for judges to review in certain cases.

Even where AI does not reach decisions, it is being used around the world to “assist” judges in reaching decisions. This has at times proved controversial: for example, in the US, COMPAS is a risk-assessment tool that purports to predict a defendant’s risk of committing another crime and so assist judges determining whether to grant bail. But this system is not independent because it has “built in” biases in the historical data used to train the system so COMPAS has merely replicated those biases in its predictions.

The benefits and downsides of AI

The appeal of AI in decision making is clear: there are, quite literally, millions of disputes in the world (fuelled in part by the huge rise in online payments and e-commerce) and AI could help to resolve smaller value claims more quickly, freeing up court time to hear higher value and more complex cases. For straightforward debt claims, the use of AI could result in claimants quickly and cheaply obtaining an enforceable judgement.

AI might have other advantages too: most notably, greater consistency – it will not have “off” days and will produce the same result, given the same criteria, on any given day. Many would argue that AI could never work in a case in which the judge must decide which witness is telling the truth. AI is essentially driven by mathematics and has nothing to compare to the intuition and “gut feel” of a human being. But developments are being made in this field all the time. For example, there have been advances in AI emotion recognition systems, looking for physical indicators that someone is not telling the truth, and this has meant that lie detectors are improving all the time.

Replacing judges (humans) with artificial technology still faces many challenges. For example, in 2017, Kazakhstan designed an intelligent judge system, which I actually believe is unachievable. Although we have made many advancements, I think the way AI systems make decisions is entirely different from human rational reasoning because it is based on statistical weights and boundaries set by reference training data. Therefore, AI reasoning may not clearly explain which elements of evidence are decisive. A more fundamental issue is whether the parties involved in litigation consider AI to be a fair and impartial means of dispute resolution.

Even more fundamentally, there is the issue of whether litigants see AI as a fair and impartial way to resolve disputes. As the experience with COMPAS demonstrates, AI is only as impartial as the training data that is fed into it. But arguably, it is not more partial than judges and, moreover, it is free from the influences of human relationships and commercial interests that could, in principle at least, affect human decision making.

There will undoubtedly be limits to how far AI will be able to progress: will we ever reach a stage where AI could assess complex legal arguments or even develop new legal principles? This remains to be seen.  

AI-Enhanced Transcription Services: Bridging the Gap

A critical area where AI is currently being developed at the AIFC Court to “assist” proceedings is in transcription services. Traditionally, obtaining a transcription of court proceedings in other courts has been a costly affair, often involving external providers based in locations like London. These services, while accurate, are expensive and may not be feasible for all parties involved in legal disputes.

Recognising this challenge, our Court is developing an AI-assisted transcription service that will be both cost-effective and locally managed in Kazakhstan. This service will offer real-time transcription in both English and Russian languages, displaying live words on the screen during proceedings. Additionally, daily or hourly printed transcripts will be made available to the parties, ensuring they have timely access to accurate records of the proceedings.

We believe this development will be a significant step forward, showcasing how AI can be used to improve the accessibility and efficiency of transcription in Court proceedings.

Conclusion

For now, my view is that AI does have an increasingly important role to play in “assisting” Judges to make decisions, BUT IT CANNOT appropriately make those decisions by itself without a Judge, particularly when the dispute is highly complex, without questioning the integrity and independence of the courts and ultimately reducing the trust and confidence that parties, and investors, have in those courts.  

I very much look forward to observing how technology and AI continues to develop in the coming months and years, and I wish everyone involved in dispute resolution in China the greatest success with their various AI and other technology based initiatives.

Thank you.