Page 96 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

Arguments for a higher form of AI can sometimes appear going overboard.
One such argument suggests that because the UNCITRAL Model Law on International

Commercial Arbitration (‘UNCITRAL Model Law’) did not mention that an arbitrator
needs to be a person therefore nothing prohibits a machine from becoming an arbitrator.
23
Yet we also know that according to the UNCITRAL Model Law, the award (decision)
shall state the reasons upon which it is based, unless the parties have agreed that
no reasons are to be given, therefore with no evidence that AI-based decision making
24
can provide reasons, why would the parties turn to a wholly AI arbitration? This is
bearing in mind also the ramifications of trying to enforce an arbitral award made

by AI arbitrators under the New York Convention which could be subjected to challenge
25
for its recognition and enforcement because the composition of the tribunal or arbitral
procedure was not in accordance with the agreement of the parties or contrary to the
26
public policy of the country where recognition or enforcement is sought. Fundamentally,
27
AI arbitrator rendered arbitral award will also present a doctrinal issue as to whether it
validly constitute ‘award’ under the meaning of the New York Convention. 28

To think that algorithms and AI cannot be biased would need a serious rethinking.
Two researchers, Friedman and Nissenbaum have examined the Semi-Automated
29
Business Reservations Environment (‘SABRE’) flight booking system, sponsored by
American Airlines, which was used widely by travel agents to identify and reserve

airline flights for their customers. These reservation systems seem straightforward.
When a travel agent types in a customer’s travel requirements, the reservation system
searches a database of flights and retrieves all reasonable flight options that meet

or come close to the customer’s requirements. These options then are ranked according

23 Art. 2(b) UNCITRAL Model Law on International Commercial Arbitration 1985 (ML 1985)
24 ML 1985, art 31(2)
25 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Award (NYC
1958), made in New York on 10 June 1958
26 NYC 1958, art V(1)(d)
27 NYC 1958, art V(2)(b)
28 NYC 1958, art 2
29 Batya Friedman and Helen Nissenbaum, ‘Bias in Computer Systems’ (1996) ACM Transactions on
Information Systems, Vol. 14, No. 3, 330–347

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