\n<\/p>\n
[This guest post is authored by Shubham Shrivastva, Penultimate Year Law Student, Dharmashastra National Law University]<\/em><\/strong><\/p>\n Consider the following thought exercise. Into an international arbitration, two legal teams go. At stake are the multi-billion-dollar investments of a western energy firm pitted against a state-owned Asian enterprise. Both sides use advanced document review platforms equipped with artificial intelligence (AI). The claimant uses AI based on a large language model from Silicon Valley while the respondent uses one from Shanghai. The 400.000-page evidentiary record is identical in both tools. Both models provide summaries, highlight key precedents, and help counsel piece together factual timelines but present contradictory factual conclusion.\u00a0<\/p>\n Not because the lawyers are unscrupulous. Not because the evidence is ambiguous. Since the two AI systems are trained on data constructed under distinct geopolitical conditions differing legal systems, state narratives and understanding of \u201cmarket practice,\u201d \u201csovereign immunity,\u201d or \u201cforce majeure\u201d. The two narratives diverge in their legal interpretations.\u00a0\u00a0No disclose is made. The tribunal never knows. An award is rendered. This is not a theoretical warning about some distant future. This is a description of an arbitral environment that already exists. One which international dispute resolution scholarship has largely overlooked.\u00a0<\/p>\n The Fracture Nobody Is Talking About<\/strong><\/p>\n Generally, international legal scholars have expended a significant amount of effort in discussion and\u00a0debating<\/a>\u00a0the question of whether AI can be an arbitrator, how AI-based decision-support tools can be regulated and what\u00a0disclosure<\/a> obligations counsel should have. These are sound issues to consider.\u00a0<\/p>\n The term \u201csplinternet<\/a>\u201d (splintering of the global internet into separate geopolitical internet realms) has been discussed thoroughly in the technology policy literature. This splintering is less documented but has become part of the procedural anatomy of international arbitration. The world\u2019s top\u00a0arbitral institutions<\/a>\u00a0operate today on digital platforms, on cloud infrastructure and on digital software which are located on either side of the digital divide, aligned with the United States or China. The international chamber of commerce runs on a western digital system. The China international economic and trade arbitration commission is pat of the other.\u00a0<\/p>\n This is not merely an administrative matter, but an architectural one. These ecosystems embed epistemologies when AI tools for e-Discovery, legal research, translation, evidence analysis, and, more recently, decision support are used. They are not just \u2018fact processors. They indicate whose facts are counted.\u00a0<\/p>\n Weaponized Interdependence Enters the Hearing Room<\/strong><\/p>\n International relations scholars Henry Farrell and Abraham Newman coined \u201cweaponized<\/a>\u00a0interdependence\u201d to describe how a state\u2019s structural dominance in the global economy-as a financial informational, and logistical hub- can be\u00a0deployed<\/a>as instrument of coercion. The next frontier of that leverage and arbitration is particularly exposed to it is the AI infrastructure that supports international legal practice. What is a state imposes technology\u00a0sanctions<\/a>\u00a0which limit a foreign party\u2019s ability to utilize wester technology for e0discovery while the arbitration is ongoing? Or when one of the experts\u00a0appointed<\/a>\u00a0by tribunal is unable to conduct a forensic analysis on financial records because of the laws of country or province I which the records are stored. Or when the case\u00a0management<\/a>\u00a0system provided by an arbitral institution relies on artificial intelligence and the\u00a0confidentiality<\/a>\u00a0risks are posed by access to foreign intelligence laws and rules that are not currently included in the arbitral institution\u2019s case management system.<\/p>\n This is not a \u2018special case\u2019. They are the\u00a0predictable<\/a>\u00a0results of installing into arbitration\u2019s most sensitive processes on infrastructure on which powerful states have proven themselves willing to play the game. This leaves the arbitrator with structural due process problems, not related to his actions, but to the technology layer under him.\u00a0<\/p>\n Epistemic Sovereignty: A New Concept For A New Crisis<\/strong><\/p>\n Naming this problem clearly requires mew vocabulary. The term \u201cepistemic sovereignty<\/a>\u201d is a borrowing and adaption from science and technology studies, and refers to the ability of a geopolitical player to determine factual truths by controlling knowledge-producing infrastructure. The implication in arbitration is a troubling one: the fact that an AI system\u2019s geopolitical allegiance determines its factual universe means that arbitration is epistemically\u00a0fragmented<\/a>\u00a0AI environments are, in a meaningful sense, not neutral.\u00a0<\/p>\n This extends beyond the normal meaning of bias. The issue isn\u2019t just that an AI tool that has been\u00a0trained<\/a>\u00a0largely on US law will devalue Chinese legal principles, or that an AI model trained on Chinese commercial data will overvalue state-enterprise relations, which are viewed with suspicion in western legal systems. The deeper issue is one of structural invisibility.\u00a0\u00a0An AI system\u2019s epistemics are generally\u00a0opaque<\/a>, proprietary and not subject to a current challenge procedure. The arbitral record, however, can be the silent\u00a0record<\/a>\u00a0created by geopolitical epistemics not discernible or interrogable by any party, counsel, or the tribunal.\u00a0<\/p>\n Why Current Procedural Frameworks Cannot Cope<\/strong><\/p>\n The\u00a0New York Convention<\/a>, enacted in 1958, deals with recognition and enforcement of arbitral awards. The\u00a0UNCITRAL<\/a>Model Law is limited to the procedural aspects of fairness in a largely pre-digital context. Recent years have seen guidance from ICC, SIAC, LCIA and HKIAC on\u00a0cybersecurity<\/a>. And to a similar degree guidance on disclosing AI usage, though none of these measures is systematic mandatory, or addressed to systemic infrastructure risk.<\/p>\n None of these\u00a0frameworks<\/a>\u00a0have anything like a disclosure obligation for \u201cAI provenance\u201d. Such an obligation would require parties to disclose which AI systems they used, on which platforms, with which data sources, etc. None present any evidence of AI epistemic bias that would justify challenging the award. None demand geopolitical Neutrality Audits of the technology power behind arbitral institutions. The divide is more than just a technical one. It\u00a0embodies<\/a>\u00a0an underlying premise that international arbitration is a neutral space, where justice itself is neutral and where it is above geopolitics. It was always an aspiration rather than a guaranteed reality.<\/p>\n What Reform Must Look Like<\/strong><\/p>\n Three levels of thinking are needed to move forward.\u00a0<\/p>\n In terms of procedure<\/em>,\u00a0disclosure<\/a>\u00a0of AI usage should be made mandatory in international arbitration proceedings. Firms that use AI In document review, evidence analysis, or legal research should be required to provide information on the tool\u2019s developer, training data provenance and where the tool is hosted. Is the\u00a0<\/p>\n At the institutional level<\/em>, leading arbitral institutions should order independent geopolitical\u00a0neutrality<\/a>\u00a0audits of technologies that are used. The question of whether an institution\u2019s case management system, AI-based\u00a0translation<\/a>services or handballing of documents are based on\u00a0infrastructure<\/a>\u00a0that can be accessed by foreign states is not a regular IT question, but should be treated as a fundamental question of institutional integrity.\u00a0<\/p>\n From doctrinal point of view<\/em>, arbitration law requires a new jurisprudential category: the challenge of an award based on\u00a0undisclosed<\/a>\u00a0algorithmic bias of geopolitical origin. While this is admittedly a high bar set, its articulation matters: it coveys to institutions, parties, and counsel that AI\u00a0epistemics<\/a>\u00a0are not merely a theoretical issue but one that is live and present in ongoing proceedings.\u00a0<\/p>\n The Stakes Are Not Abstract<\/strong><\/p>\n The legitimacy of international\u00a0arbitration<\/a>\u00a0rest on one overarching assurance: that there is a supranational, neutral forum for dispute resolution where\u00a0states<\/a>\u00a0and parties can solve their disputes fairly. It is the promise which induces parties to accept its jurisdiction and to provide finding for its institutions and enforcement of its awards.\u00a0<\/p>\n If the AI that drives arbitration is geopolitically divided, and if the tool that build the evidentiary record, aid\u00a0counsel<\/a>\u00a0and support institutional administration are epistemically aligned to competing geopolitical blocs, then the neutrality of arbitration is not only under threat at its edges. It\u2019s cracked at the core.\u00a0\u00a0The issue is not whether international arbitration can overcome the\u00a0geopolitics<\/a>. It has always been in geopolitical tension. The question then becomes, can it withstand the invisible geopolitics the ones that do not enter through the arbitrator\u2019s nationalities or the institution\u2019s home jurisdiction, but rather through the epistemics of the algorithm running in the background? This is a question that needs to be answered now-before the net award is made, not after.<\/p>\n ***<\/p>\n<\/p><\/div>\n\n","protected":false},"excerpt":{"rendered":" [This guest post is authored by Shubham Shrivastva, Penultimate Year Law Student, Dharmashastra National Law University] Consider the following thought exercise. Into an international arbitration, two legal teams go. At stake are the multi-billion-dollar investments of a western energy firm pitted against a state-owned Asian enterprise. Both sides use advanced document review platforms equipped with […]<\/p>\n","protected":false},"author":1,"featured_media":364185,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[96697,112560,108,202195],"tags":[13570,27371,6683,6653,5477],"dealstore":[],"offerexpiration":[],"class_list":["post-7039638","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-ai","category-arbitration","category-artificial-intelligence","category-bias","tag-algorithm","tag-arbitration","tag-geopolitics","tag-silent","tag-truth"],"yoast_head":"\n