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Law 3.0 and ADR: Technology Law Disputes

Digital Technologies have transformed supply and information chains for businesses around the globe. For instance, artificial intelligence (AI) as a technology has permeated every sphere of commercial business activities ranging from chatbots, voice recognition, and facial recognition. The general concerns of privacy, data breaches, and specific concerns of bias and data profiling can ensure a large number of disputes. Therefore, the importance of ADR methods to address such issues with expert technical knowledge and understanding the know-how of technology is very important. Regardless of this specific technical expertise, it is important for dispute resolution professionals and arbitrators to identify some potential issues in any technology disputes. In this article, the trends related to dispute resolution mechanisms on issues surrounding artificial intelligence and other digital technologies have been discussed.

Current Means of ADR on Issues Related to Digital Technologies

Generally, the stakeholders who are involved in mechanisms of dispute resolution i.e., the arbitrators, negotiators, mediators, and other dispute resolution professionals will often have to deal with the intermeshed questions of law and technology to identify the party responsible for the actions committed by any AI product or services. In order to counter the common issues arising from dispute resolution mechanisms such as costs, time frame, and jurisdictional issues it could be a way to adhere to model clauses for dispute resolution. Procedural rules from various jurisdictions can be combined to create uniform rules for technology arbitration, negotiation, and mediation at a global level. These procedural rules and guidelines will confirm a time frame for the resolution of a dispute and will resolve basic jurisdictional challenges and promote an efficient dispute resolution system.

The substantive and procedural laws are already prefixed by the parties in the contracts. This will also ensure that jurisdiction is conferred to a specific place. These model clauses and procedural guidelines will assist parties involved in the dispute as well as the dispute resolution professionals to adjudicate upon the developing areas of technology-related questions instead of diverting focus on extant conflict of law issues arising in dispute resolution. For a more consumer-focused dispute resolution, the guidelines should be domestically oriented depending on the place where the company operates within the country or where the consumer resides (in personam jurisdiction) or a more convenient forum (Forum conveniens).

The various methods of Dispute resolution to deal with Technology related disputes would include the following as described.

Technology Arbitration

Technology-related arbitration has grown from typical commercial contracts and agreements to include a wide array of claims pertaining to consumer, IPR, and competition law issues. Lawsuits arising from the liability of the semi-autonomous and autonomous vehicles, for example, can also be addressed via arbitration. The complexities arise in identifying the parties responsible for the malfeasance. It can include the owner of the system/technology, the developers and the engineers or the company manufacturing the AI products and services. The essential feature of technology-related arbitration is to ensure that a neutral place for dispute resolution is chosen. For example, since it involves questions that would require technical expertise, especially on privacy concerns surrounding the AI system due to an error in the code of the system, it can be dealt with by neutral experts that have specialized knowledge and experience to assist the arbitrators in the decision-making process. Since Arbitration is relatively a flexible process where the parties can lay out their own procedure, costs are shared and specialized expert opinion can be provided in complex artificial intelligence disputes.

External Dispute Resolution (EDR)

This is a widespread practice for ensuring accountability and an oversight mechanism, for example, in the case of Australian Financial Complaints. This mechanism of dispute resolution can also be utilized for any consumer-related issues arising from technologies such as privacy concerns, compensation for any tort committed, etc. For instance, if an AI service or product has mishandled personal information or caused damage to the consumer, then an EDR scheme can be proposed to handle specific consumer complaints. Complaints can be made by Consumers for which EDR will ensure that the companies and businesses can respond within a specific time and accede to the request of the consumers. If no satisfactory response is received by the consumer, then in accordance with the policies, guidelines and recommendations, further examination of the consumer complaint will be taken up by the independent persons in EDR. Upon a fair and reasonable assessment, negotiation will be conducted between the consumers and the businesses for reaching an agreement on the amount of compensation.

Expert determination

Expert determination can take place if there is a pre-existing expert determination clause in the contract between the parties. A dispute can be referred to as expert determination where the submission can be made by parties. An expert can be selected by the parties unanimously and can be someone with technical knowledge and expertise to determine the various technical facets of the dispute. The decision of the expert would be binding on the parties. The expert determination as a dispute resolution mechanism can be used alongside an existing arbitration or mediation case. It can be used for IPR-related claims arising from the dispute. The clauses governing expert determination in the contract would establish the jurisdiction hence removing the issues associated with jurisdiction. Unlike arbitration, where an expert would be appointed at a later stage by the Arbitrator, expert determination appoints an expert to decide the entirety of the dispute[1]. The usual problem with technology-related arbitration is the appointment of technical experts from both the sides to adduce evidence, each providing their expertise on the dispute at hand. The question at hand remains with the arbitrator to choose which expert evidence to be preferred and this major question is left to be decided by the arbitrators. These issues with technology-related arbitration have encouraged parties to appoint a neutral technical expert themselves for analysing the entire dispute and are the decision makers of the dispute. This usually involves the appointment of a neutral technical expert by the parties through an agreement. In a usual case, if the parties cannot agree on a neutral expert, then an industry expert will be appointed. In the case of AI-related disputes, a neutral technical expert can be appointed by a proposed Law and Technology body, whose details have been provided at a later section in this article.

For instance, if there is an AI-related dispute concerning the manufacturing of the AI product and the parties involved are the company’s developer of the AI software and the manufacturing company, then a neutral technical expert can be appointed in accordance with the agreement entered into between the company and the manufacturers to decide the dispute instead of appointment of an arbitrator. The decision of the expert will be non-binding or binding, at the option of the parties to the agreement. However, parties should seek some guidance while drafting the expert determination clause to reflect accurately and layout exhaustively the scope of disputes that are submitted to experts for decision making. More often than not, when there are a large scope of disputes and defaults arising from AI-related technology services, disputes can be split between technology arbitration, meditation-negotiation and expert determination depending upon the parties involved, cost-effectiveness, and nature of the dispute.

Expedited Arbitration

As the name suggests, it is an arbitration method used in WIPO (World Intellectual Property Organisation) as a dispute resolution mechanism that is carried out in a short span of time by eliminating costs and adhering to strict time limits in each stage of the Arbitration. WIPO has proposed the Expedited Arbitration Rules (2021) consisting of a set of procedural rules that parties can follow for any arbitration arising out of commercial disputes between parties. A sole arbitrator is nominated by the parties for the appointment.

Further, the non-common usage of ADR for technology firms was noticed at an international level when a working group of the United Nations Commission on International Trade Law (UNCITRAL) explored the legal implications of dispute resolution in a digital economy. This is mostly because the tech sector has characteristic claims involving technical and specialized questions and demands a highly flexible mechanism to overcome the innovations of the emerging technology. Further draft provisions for technology-related dispute resolution has defined a technology dispute to mean a “dispute arising out of or relating to supply, procurement, research, development, implementation, licensing, commercialization, distribution, and financing[2].

The draft had discussed several issues as to why technological disputes have not preferred ADR mechanism by addressing questions of time frame (Draft Provision 4) and case management conferences (Draft Provision 3). In case management conferences, the arbitral tribunal will often discuss procedural questions of how arbitration proceedings will be conducted and technology experts can be decided beforehand. This will ensure that any future ambiguities and further procedural difficulties will not arise at a crucial point of dispute resolution. The proceedings are structured during the case management and handling expert evidence is discussed so as to prevent further complexities from arising in the future. However, the draft rules have not specified whether the provisions and procedural framework are sufficient for the large scope of technology disputes.

Proposing a Law and Technology Body

Other additional concerns that have not been dealt with are questions of jurisdiction, costs, enforceability and bargaining power of the parties in disputes are also some of the common concerns surrounding technological disputes especially for consumers of such technologies. Engineers and experts from the field of AI and other digital technologies should closely work with dispute resolution centres in the country to render expert advice and provide a qualified technical knowledge upon the subject of fixing liability on the companies, developers and manufacturers. Subsequently, the establishment of a Law and Technology body consisting of various stakeholders including developers, engineers and lawyers could be made possible in various countries to tackle issues relating to emerging technology innovations and legal issues surrounding the same. Dispute resolution professionals can closely work with the body to estimate the most effective dispute resolution mechanism to be deployed while dealing with emerging technology law questions[3].

Conclusion on Law 2.0 and Challenges Ahead

AI and its profound impact on society can raise the question of how such an emergent technology should be regulated and the regulatory challenges surrounding it. The rapid pace at which development in AI is heading presents the modern government-enacted system of regulation (Law 2.0) with a series of challenges that the static regulations cannot address. Dispute resolution and cooperation between different government entities and the introduction of new regulatory authorities are very important at this stage. The response time to implement the following changes within the government-enacted regulatory regime would outpace the technological changes made within the field of AI. Therefore, a policy-based approach estimating the soft law implications of the phenomena can be used to counteract a wide range of challenges posed by the legal technology industry. Dispute resolution professionals can rely on the policies and guidelines that are focused on dealing with characteristic issues of privacy, data breaches, confidentiality, and IPR claims. This would ensure that the future of dispute resolution would be expeditious without having to rely on court decisions and precedents[4]. This is significant to mention as rapid changing requirements of tech dispute resolution, rigid systems of lawsuits, and relying on precedents to deal with tech disputes may be futile for an industry concerning AI and technology disputes that has evolving changes. They can be systematically addressed by new and developing institutions that evolve with the changing requirements of technology, innovation, and industry.

The unique feature of technology disputes poses a challenging landscape for dispute resolution due to shortened product life cycles and innovations within the field. In the competitive environment of technology companies and services, dispute resolution professionals should be equipped and empowered to deal with the specialized requirements of technology disputes. Significant issues of jurisdiction and short timelines for dispute resolution can lay out an optimistic future for tech dispute resolution. Arrangements at both global and domestic levels should be systematically focused upon for maintaining standardized dispute resolution mechanisms and qualified dispute resolution professionals to handle high-technology disputes. Information sharing about mechanisms of dispute resolution deployed for specific tech disputes should be promoted between countries.

Further Readings

[1] The Arbitrator and Mediator; (2013) 32(2); ISSN 1446-0548

[2] United Nations Commission on International Trade Law Working Group II (Dispute Settlement).

[3] Arbitration Tech Toolbox: Technology- Related Dispute Resolution: Tailored Rules at UNCITRAL; Raoul J. Renard; July 14,2022

[4] How to Improve technical expertise for judges in AI related Litigation- Melissa Whitney; November 7, 2019


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