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to inspect or challenge; he had no way of knowing how the software had reached its
conclusion. Elucidating the lower court’s decision, the Wisconsin Supreme Court, among

others, held that the software was merely a tool available to the court and that
‘consideration’ of the software is permissible but reliance on it for the sentence imposed

is not permissible. Though this may not yet directly related to international arbitration,
3
in time to come it is likely to when technology and AI play a more prominent role in
legal decision-making.

Incidentally, we are living in times where algorithms influence or control how

decisions are made about individuals, in a rather wide variety of instances that are
4
already affecting us. Outside of the judicial setting, we are all subject to some form of
judging by algorithms, therefore, in one way or another. Most commonly is credit

scoring which is widely used today, affecting lending decisions; or the assignment of
seats on an aeroplane for passengers who decline to pay more for preferred seat selection
or even electronic marketing emails. Of course, some of these actions performed by

algorithms may not even constitute important decision making unlike if it involves
an issue of significant importance affecting someone’s life. In the realm of science
fiction, they are often well represented in films, one such notable one is Minority Report

based on a science fiction book written by Philip K. Dick which tells about the use of
psychics called ‘precogs’ within a special police department to arrest criminals based

on prescience. Criminals will be arrested in the nick of time before the crimes were
committed, already with the elements of guilty mind and act present, this way, there
will be no loss of lives. However, there was a serious flaw in the system which resulted

in the department being disbanded and those previously convicted, pardoned and
released.

Coming back to Loomis, investigative journalism organisation, ProPublica
claimed that the COMPAS algorithm is biased against blacks that the algorithm ‘[w]as

3 Supreme Court of Wisconsin decision, at ¶ 129, <https://www.leagle.com/decision/inwico20160713i48>
accessed: 31 March 2021
4 See, Government Office for Science, Artificial Intelligence: Opportunities and Implications for the Future
of Decision Making Government Office for Science <https://assets.publishing.service.gov.uk/government/uploads/
system/uploads/attachment_data/file/566075/gs-16-19-artificial-intelligence-ai-report.pdf> accessed 1 April 2021

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