Arbitrator 'Intelligence' and the Mysterious Brown M&M
15 Pages Posted: 6 May 2021
Date Written: May 3, 2021
When Arbitrator Intelligence promised to increase transparency, accountability, and diversity in arbitrator selection, it was celebrated as a welcome innovation. Now separated from its academic backing, however, it might accomplish the opposite. Rather than engage with the scientific evaluation of arbitrators and their awards, Arbitrator Intelligence's Reports appear personally rather than factually motivated. Arbitrator Intelligence could even facilitate the manufacture of deceptive arbitrator images – and it is already stifling diversity.
Since Arbitrator Intelligence’s Reports exist, counsel may feel obligated to consider them as part of counsel’s due diligence. Simply reading these error-laden Reports, however, sends counsel on a possibly wasteful errand to establish whether the arbitrator really is who Arbitrator Intelligence says. And that errand could ultimately be for nothing, as several of those about whom Reports are offered are not accepting appointments: they have retired or their current position renders them unable to accept arbitrator appointments.
If Arbitrator Intelligence is willing to misrepresent the appoint-ability of the arbitrators for whom it offers Reports, what other misrepresentations, errors, or omissions can buyers expect? Counsel’s time is better spent independently researching potential arbitrators, including by viewing their prior awards.
This article begins with a brief summary of Arbitrator Intelligence’s history, from its early days as an academically-affiliated non-profit to its current status as a for-profit shareholder corporation. With this change in status, Arbitrator Intelligence also changed its treatment of arbitrators, who are no longer given the opportunity to review or consent in advance to the reports that Arbitrator Intelligence prepares about them. Its Reports threaten the legitimacy of arbitration as the world’s preferred method of private dispute resolution by incentivizing arbitrators to behave in ways that reflect positively in Arbitrator Intelligence’s valuation metric – a metric that favors Claimant parties in particular. Arbitrator Intelligence Reports are not an improvement over other network-based means of finding an arbitrator, but instead add an assumed scientific base to what is purely anonymized speculation.
Keywords: International arbitration, artificial intelligence, arbitrator, diversity, accountability, transparency, Arbitrator Intelligence, deception, consent, Van Halen
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