The legal profession is one that is deeply rooted in tradition and procedure which is not easily done away with as procedural steps are paramount throughout the entirety of legal proceedings. Artificial intelligence (herein after referred to as “AI”), is a computer and technology support system that has arguably grown to be the largest support system in the working world. The development of AI has transcended barriers and completely changed the way certain industries operate. Though AI is not strictly restricted in the legal profession, it ought to be limited and controlled to certain extents. This begs the question asking, “in this ever-changing society, just how involved can AI become in the legal environment?”
AI as Tool
Arbitration proceedings is a form of Alternative Dispute Resolution that produces a quicker, more flexible process as opposed to traditional litigation proceedings.[1] The role of Arbitration is essentially to steer individuals away from lengthy litigation proceedings and instead settle the dispute privately and swiftly, oftentimes by a specialist arbitrator who understands technical information used to understand a dispute. In these proceedings, both parties may exercise autonomy in the sense that they can come to an agreement over the appointment of an independent Arbitrator.
In Arbitration proceedings, AI can play a pivotal role in various ways. It can take minutes, review and summarize documents as well as provide technological aid where meetings are held virtually.[2] This can be seen through transcription or video recording enhancement and any other basic technological task that uses computers to generate an outcome.[3] Therefore, AI provides a considerable boost of efficiency where tasks require the analysis and/or collection of data.[4]
Efficiency versus Due Process
The development of technology and AI have transcended geographical barriers, allowing individuals to host meetings and conclude complex transactions by way of videoconferencing and telecommunication.[5] The digital age has changed the way operations are conducted. However, it is crucial that the use of AI in this transformation is limited to technological advancement and AI should not be used as an obvious procedural shortcut, with the reason being that it poses irreparable risks.[6]
In the legal profession, efficiency should never compromise due process as short cutting on the process could be the difference between winning and losing a case due to the procedural prejudice to an opponent in contravention of rules of law. Furthermore, the integration of AI into the legal profession threatens the attorney-client confidentiality in its entirety. Client confidentiality is a defining rule in the legal profession as it is a legal practitioner’s duty to uphold this legal professional privilege. In terms of the Protection of Personal Information Act 4 of 2013 (herein after referred to as “POPIA”), organisations are required to process personal information lawfully and securely.[7] Uploading confidential documents onto publicly accessible AI platforms without appropriate safeguards may expose parties to unauthorised processing or international data transfers, potentially resulting in non-compliance with POPIA.
Arbitration Proceedings
One of the defining characteristics in Arbitrations is that parties may appoint a specific individual to determine their dispute, and that appointment is based upon confidence in the arbitrator’s expertise, independence and judgment.[8] In addition, the type of arbitrator that is chosen will further depend on the dispute at hand; for instance, if the dispute is a legal dispute, then the arbitrator may be an admitted attorney or advocate, with a certain level of experience.
Furthermore, whilst AI may assist with research or administrative tasks, it should never influence the substantive reasoning behind an arbitral award. Although South African courts have not yet considered AI specifically within arbitration proceedings, the Courts have already emphasised the importance of procedural fairness in arbitration.
In Giflo Engineering (BOP) (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBIC) and Others,[9] it was affirmed that procedural fairness is paramount in an arbitration proceeding and subsequently the awarding of an arbitrational award.[10] Furthermore, In Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another[11] the Constitutional Court confirmed that arbitration derives its legitimacy from party autonomy whilst remaining subject to fundamental principles of fairness.[12]
Essentially, parties choose arbitration because it offers an efficient process that also purports to promote privacy and confidentiality. Moreover, the pursuit of efficiency should never justify a practioner compromising on procedural fairness. This principle of fairness remains particularly relevant in the age of AI. Whilst technology may improve efficiency, the fairness, impartiality and integrity of arbitration must always remain paramount.
Conclusion
As AI and the digital age continue to transform the legal landscape, parties involved in arbitration proceedings must always remain mindful of both the opportunities and risks associated with their incorporation. From confidentiality concerns and POPIA compliance to ensuring procedural fairness throughout the arbitration process, navigating these issues requires careful consideration.
At Adriaans Attorneys, we assist clients in navigating the complexities arising from the integration of technology into legal proceedings, ensuring that efficiency and innovation are achieved without undermining the fundamental principles of fairness, confidentiality and due process.
Bibliography
Case Law
- Giflo Engineering (BOP) (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBIC) and Others (JS 390/07) [2011].
- Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another (CCT 97/07) [2009] ZACC 6.
Journal Articles
- Baghbnano, F. and Solhchi, M.A., 2023. Artificial intelligence and its role in the development of the future of arbitration. International Journal of Law in Changing World, 2(2), pp.56-76.
- Eidenmüller, H. and Varesis, F., 2020. What is an arbitration? Artificial intelligence and the vanishing human arbitrator. Artificial Intelligence and the Vanishing Human Arbitrator (June 17, 2020).
Legislation
Protection of Personal Information Act 4 of 2013.[1] Eidenmüller, H. and Varesis, F., (2020) What is an arbitration? Artificial intelligence and the vanishing human arbitrator. Artificial Intelligence and the Vanishing Human Arbitrator (June 17, 2020) Page 3.
[2] Eidenmüller, H. and Varesis, F., (2020) page 4. [3] Page 9. [4] Baghbnano, F. and Solhchi, M.A., (2023) Artificial intelligence and its role in the development of the future of arbitration. International Journal of Law in Changing World, 2(2), page 57. [5] Baghbnano, F. and Solhchi, M.A., (2023) page 59. [6] page 67. [7] The Protection of Personal Information Act 4 of 2013. [8] Eidenmüller, H. and Varesis, F., (2020) page 44. [9] (JS 390/07) [2011]. [10] Giflo Engineering (BOP) (Pty) Ltd v Metal and Engineering Industries Bargaining Council (MEIBIC) and Others (JS 390/07) [2011]. [11] 2009 (4) SA 529 (CC). [12] Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another (CCT 97/07) [2009] ZACC 6.By Jordan Meyer
Candidate Attorney
While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes and should not be construed as legal advice.
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