Finally, we will turn to the crystal ball to predict which discussion might lay in the arbitration market of the future. Are parties able to appoint Machine Learning Systems as arbitrators? Naturally, none of the revised arbitration laws expressly forbids the appointment of a computer as an arbitrator. Instead, every provision regarding the validity of the arbitration agreement only defines it as the submission of a dispute to the arbitrators.
Thus, based on this circular argument, both an arbitration agreement referring the dispute to a Machine Learning System arbitrator and the composition of a tribunal by such machine would be valid. However, the Arbitration Acts from Peru art. Arguably, this legal loophole would enable users to designate a computer as an arbitrator in these countries.
Despite of that, legal status of MLS might change in the future. Furthermore, even if parties were not allowed to appoint computers as arbitrators, that does not mean they cannot agree to use them. Even if arbitration laws do not apply, courts should still enforce such agreements as a matter of contract law. Besides these normative considerations, we believe the appointment of machine arbitrator could be held back based on a supposed breach of international public order.
According to Gibson, this concept evolves continually to meet the needs of the political, social, cultural and economic contexts. However, change takes time. Hence, one might argue that an award rendered by machine arbitrators should be set aside for defying the international public order, as it lacks key human characteristics such as emotion, empathy and the ability to explain its decision.
Would machine arbitrators perform better? Even though technology has evolved dramatically in the last years, a MLS is still not able to accurately read, predict nor feel emotions. In our view, the lack of emotional processing would be a great handicap for a machine arbitrator. Elliot had a tumor the size of a small orange. Before deciding where to eat, Elliot scrupulously scanned the menu of each restaurant, where he would sit, the lighting scheme and attended each establishment to verify how full it was.
Elliot was no longer Elliot. Although his IQ had remained intact, he had the emotional life of a mannequin. Without emotion he was unable to make decisions. In sum, emotions are critical for humans. This would be a great handicap for machine arbitrators. Emotions act as a source of information, cause of motivation and influence information processing by coloring our perception, memory encoding and judgments.
Without them, our decisions are not human. Also, specific emotions as anger play an important role in legal decision making. As explained by Terry Maroney, anger generates a predisposition towards fighting against injustice. Thus, angry arbitrators are prone to feel an intense desire to repair an unfair situation, even if that means taking more risks to fix the current scenario. Moreover, Machine Learning Systems also lack empathy.
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