At the height of the French Revolution, Charles Dickens wrote in his novel 'A Tale of Two Cities' that "it was the best of times, it was the worst of times." Similarly, there is a popular school of thought that Artificial Intelligence is like Shakespeare's character, Autolycus in the winter's tale and a snapper-up of unconsidered titles.
What is Artificial Intelligence (AI)? It refers to the use of systems or programmes that perform tasks that ordinarily required human intellect and effort. Computer scientists such as John McCarthy believe that AI is the 'science and engineering of developing intelligent machines'. It is for this reason that AI is a disruptive force occasioned by the evolution of technology in the 21st Century.
AI is gaining prominence in financial services, academic, entertainment, energy, construction, and justice sectors around the world. For instance, Netflix rubbed shoulders with Hollywood actors following its advertisement of vacancies for machine learning experts. In addition, Samsung Electronics banned its employees from using generative AI owing to sensitive data breaches.
With regards to the right of access to justice, Article 159 (2) (c) of the Constitution enshrines the application of Arbitration and other forms of alternative dispute resolution such as mediation for expeditious settlement of disputes. Thus, arbitration is the resolution of disputes through reference to a private third party.
This means that court processes are no longer the first port of call, provided that there is a subsisting agreement by the parties to opt for arbitration in case of dispute resolution. The Supreme Court in Synergy Industrial Credit Limited vs Cape Holdings Limited upheld the principle of party autonomy by stating that it is an intrinsic attribute where parties exercise the freedom to construct a dispute resolution mechanism of their choice.
Is it possible for parties to appoint robot or AI arbitrators? Section 12 of the Arbitration Act does not expressly bar the appointment of AI arbitrators. Conversely, two systems of AI arbitration have now emerged. The first is autonomous AI systems which refer to AI models which make decisions freely and independently without being subjected to prior programming or instructions. The second is automated AI systems which are tools of decision making aided by pre-determined commands with regards to settlement of disputes.
Generally, arbitration is not only a confidential but also a binding and final process. The advantages of using AI arbitration are its speed trait and the ability to learn automatically. Further, the utility of intelligence sets it apart in making summaries, analysis and inferences from very limited data within a very short period of time.
However, with the development of AI arbitration, there are accruing ethical and moral challenges such as privacy, manipulation, profiling, discrimination, black-box syndrome, misinformation, emotional intolerance, absence of empathy, biased results, information asymmetry and the possibility of reaching unreasoned awards.
AI arbitration presents disputants, which are largely corporates, with a bitter-sweet experience. As per the Digital Economy Blueprint 2019, AI has been explicitly recognised as an important catalyst in Kenya's quest for a sound and developed digital economy. It also envisages AI as an area with a potential to "leap frog" the country from a low-middle income economy to a first-world country.
The Distributed Ledgers Technology and Artificial Intelligence Task force has in its 2019 report also cited AI as an important emerging technology which necessitates regulatory attention if Kenya is to fully gain from the benefits of the digital age.
The task force also envisions AI as an important tool in strengthening governance and dealing with endemic issues such as corruption.
There is need to regulate the utilisation of AI as an emerging technology in Kenya.
Nyaga is an Advocate Trainee at the Kenya School of Law. bern.nyagah@outlook.com
