Deconstructive Processes & Algorithmic Patterns

DANCING WITH INNOVATION AT McLUHAN's PACEMAKER

In the issue of this November 2022, "Arbitration: The Journal of Arbitration, Mediation and Dispute Administration", Peter Nahmias (FCIArb) publishes an article worth highlighting. The title: "Into of Future With Eyes Wide Open: International Arbitration in the Digital Age." I found it more than interesting to read.

It can be seen as one more article about the impact on the performance of international arbitration when setting up the latest technology at hand, but it goes a little further. Below the radar, while its first paragraphs tell what the article is about, it merely expresses to us the four 'somes' in which it is structured; you can read the article will promise to 'survey various stages'. And '…briefly discuss some of the issues that have arisen..., some of the latest guidance issued..., some of the reflections on the current state of play... and ...some issues that might merit further reflection; and merit for it indeed. 'Some', you know, doesn't mean little interest, though sometimes it's the opposite.

Now, the above doesn't mean the author had not left any notice in the preliminaries to catch your?attention; I found two: on the Message and the Paysage, each.

1. Wherein summary, Peter Nahmias warns that his article' considers Marshall McLuhan's analytical method to dig deeper into the impact of technological advances. It is unusual introducing McLuhan in these struggles, so I found this Eastern Egg promissory;
2. In the first paragraph, it comes to slide the size of the arbitration market for a purpose. You can read: "considering the size of the market", and the footnote refers to the estimated turnover of USD 20 billion of the leading 30 firms in the sector. An amount coming from the estimated 10% of the live balance of the total value in dispute (USD 2 trillion) for less than the third part of the players engaged to parties' interest. Why should that be relevant? Well, there will not be a possible successful wave launching technological innovation if an increase in capital goods value figures in that same sector does not precede it. And the size of the market when pretending to undertake an innovation wave matters, despite using only two drivers: the number of potential main clients and the investment volume amount for a first approach when launching the product/service.

INTRODUCTION

Let's focus first on some descriptions and reflections. Legal Tech and Information Technology are here to serve legal services as long as it encompasses everything that can apply as a resource within technological advances. Could you grab the definition from the ICC in its four expressions of communication mechanisms, information storage tools, programs and means by which to conduct the appearances and, finally, the technologies developed for cloning the conference room hearings experience? Yes, indeed. Therefore, the liturgy procedure, whose innovation started with new patterns that alter the scenario and the mechanisms of behaviour and intelligence by how the case manages, reaches a new meaning. It is the first tip to a piece of evidence that becomes solid throughout the pages: the new ways of doing need new profiles at hand. In this issue, obsolescence can equally affect institutions, equipment and practitioners.

From the stroll where I got my reading, I made the text into these three parts:

• The Panoramic. The first is an overview of the state of affairs around due process and the ability to do justice hand in hand with technological innovation, with its concerns, its hypotheses and its approaches around specific topics (seven) seen as pivots on which to press the convenience about three categories of problems: a. Parties' actions and decisions: the paranoia of the due process and guerrilla tactics; b. Arbitrators' decisions and actions: the shape of the petitum scope and rest decisions' portfolio in charge of a sole arbitrator or panel, its expansion or, on the contrary, its constraints to more strict limits; c. The acceptable means: the disparity of weapons and the arbitrator's ability to rebalance the tools available to each party. Takes paragraphs 2 to 4 in the article.
• The Guidelines. The second, the guidelines drawn up by two Institutions with recognized influence in the sector: the ICC and the CIArb, about the accumulation of concerns aroused by the occurrence of changes in the patterns to accept in the new courses of the processes greatly dematerialized. Takes paragraph 5 in the article; and,
• Deconstructive Processes and Algorithmic patterns. The third is an exciting approach to the three problems mentioned above, considering the usefulness of new technologies and their effect on two novelties of great importance: dismantling the entire process to its digital course and the proactive presence of Artificial Intelligence (AI). Takes paragraph 6 to 7 in the article

First Part: The Panoramic

The first is an exposition of the concurrence of known needs that arise from new technologies in the requirements of procedures, patterns and challenges. Innovation constantly changes the form of doing things.?Still, technology in itself also modifies the understanding of reality and the processes by which what comes to be reality. Knowing that it is an exotic debate for this segment of dispute resolution, Peter Nahmias brings McLuhan's statement that technology not only influences the consciousness, understanding and conviction of the social actor but also determines its core and modelates its shape. And everything that influences and determines consciousness does so equally on the interpreted, undertaken or assumed reality.

McLuhan's thesis is challenging whether one agrees with him or not. Technology changes the sequential horizon of knowledge, the learning sequence changes the mind's preferences, and such priorities shift the mindset and people's needs. If people need a change, their ends will change, which must achieve with the means at hand and the path the innovation evolves in the timeline. The focus is that new technologies imply new processes and patterns and require new liturgies and players. The part in which old players remember that technology has to match the routines they used to do.?

On April 29, 2022, the European Branch of the CIArb held an exciting meeting titled "The Importance of Procedure in the Pursuit of Justice". Jalal El Ahdab MCIArb, Ana Gerdau de Borja Mercereau FCIArb and George Lambrou FCIArb as interviewers, and Philip Landolt MCIArb as moderator, had a background conversation with Neil Kaplan CBE KC SBS about the way through the subtle interaction be Among the questions asked, seven of them were defining the field of play from where could draw good reasons, such as a stick to a weighted action aimed at the proper exercise of the arbitration function. Without prejudice, the party's achievement of an arbitral award resulted in the worst conditions after the decision, but with the certainty of having been treated with due justice.

The issues with the most connection with technology and the impact on the regular arbitration procedure were: a) whether procedural objections are obstacles to justice or tools at its service (in relation to the arbitrator's training on the scope of technological innovations); b) whether the paranoia of the 'due process' and 'guerrilla tactics' are enemies of the purpose of obtaining justice (related to the constraints of distance and the disparities in quality of technological infrastructures); c) on why and how an arbitrator can go beyond the common intention of the parties (in relation to the implementation of technologies that invade confidentiality and transparency); d) on whether the confrontation of cultural differences can be an adjuvant to effective defense (related to virtual audiences); e) on whether e-justice is equivalent to true justice (in relation to AI); and f) on whether it can be suitable to balance weapons, under the pretence of doing justice due a notorious difference in the strength or quality in the respective defenses.

TECHNOLOGICAL SEQUENCES | BACKGROUNDS IN LEGAL TECH | Regarding the technology applied to the arbitration procedure, the text refers the reader to the sequence of technologies incorporated into the provision of legal services. He distinguishes three stages in which updates, innovations and feedback have had. He qualifies them by the element of the set where the essence of what he came to transform has altered firstly or, at least, most obviously. Thus, in the first sequence, the alteration was the sequence of practitioners' work involved; in the second, the dematerialization of the stage was to perform the confrontation between the parties in dispute; when the third, today's implementation of management tools for the innovative tools through which to build a resolution using the leverages outcomes from the adapted work while the first phase, through the virtual theatre launched with the second.

As I have seen, the succession of technological stages over time supposed adaptative process that, starting with the alphabet technology (McLuhan), continues with mechanics improvements, later improved by the electrical technology and this latter one by the innovative electronics innovation, resulting into a progressive dematerialization in the outcome of suppliers' work. Obviously, in this journey towards maximizing dematerialization, there is a lot of applied technology. The last technological stage, adding AI into the mix, is appropriately illustrated with the statement chosen by Nahmias to refer to the point of no return in which this momentum in AI: "We are well past the day of the tongue-in-cheek futurism predictions of 'robolawyers'. This day, the discussion is technical and high-level" (Sophie Nappert, 2021).

CRITICS Y CHAMPIONS | In his analysis, since the above is a very appropriate way to get into the matter, he continues with those 'somes' referring to those 'issues that have arisen', precisely the seven that he considers marking an achievement for the sector, which I will limit myself to enumerate: Data Security, Efficiency, Data and Document Control, Video Hearings, Wider Pool of Resources. As Nahmias says, they are all topics about which both 'critics and champions' have appeared depending on where they feel most convinced. At this point, it could be the case to find them rhyme with disparity distributed between those who see an opportunistic challenge in the broken glass that causes the occasion to proceed and those who soak the enthusiasm of the former, remembering that urgency and importance are not necessarily in a prelative order. Those circumstances can make any of them hateful according to when, how, where and why they enter the scene.

DUE PROCESS AND PROCEDURAL FAIRNESS | A common thread that runs through the 'issues' he reviews in the preceding paragraphs is what he qualifies as the greatest threat of Information Technology in International Commercial Arbitration. The threat manifests itself in due process and procedural fairness or, more appropriately, two reflections on the strength of the same concept, that of due process. The first is the non-discrete dimension of this factual: the live oral hearing is the guarantee of due process; the second is that the efficient cause of due process is constrained to the correct allocation of parity of arms between the parties in the entire temporal dimension of the conflict. A rigorous introduction of formal, material and efficient cause fills the final cause of the institute of international arbitration itself. It sounds like Aristotelianism, and this is how Nahmias slips it when he refers to the influence of McLuhan.

Second Part: The Guidelines.

The article's second part describes recommendations on implementing tools and cautions that conduct viability of needs for reconciliation discrepancies, aligned with the requirements of integrity, effectiveness and efficiency for the procedure, have gained the interest of developing guidelines by two Institutions linked to the alternative resolution of controversies system. The first in the row of time was that of The International Chamber of Commerce (ICC) and, shortly after, The Chartered Institute of Arbitrators (CIArb) document.

ICC guidelines to deal with technology challenges.

He highlights the role of the ICC text insofar as, he says, "it seeks to distil the main problems, including the relevance of technology for the selection of arbitrators." Interesting to note that Mr Nahmias has highlighted technology in selecting these professionals as a point of attention. Aspect in which it would be enough to cover the accreditation of the professional background skills of each applicant. But that is staying too close in time to how the issue of a person's suitability to the performance to which he is applying is understood. I can get back to this later.

The veiled warning is not to trust general knowledge about technology management. I am going to give a piece of concern: to what extent could it be said that a presentation or an exposition using video + audio documentary is a piece of objective evidence and not a bit of information loaded with biases distributed throughout the created scenario, in the integrated sound, in the texts spoken or in the non-verbal language of the camera taking sides without the attendant realizing of that? In short, it is more than knowing the matter of legal technique under discussion, the discourse about the scope of standards in a specific industry, or the difference between a Gaussian or short-tailed distribution curve of another Paretian or long-tailed distribution one. It is a matter of insight and emotional intelligence rather than IQ or academic prestige metrics. And this is an example where we have not at all had to enter into a sampler to extract data mining juice, assuming that the Court knows how to obtain that nectar or where to see the function limits of the AI algorithm. Once again, new processes require appealing to new profiles and training.

The ICC Report is favourably valued because it is realistic and weighted. In the last paragraphs dedicated to the ICC recommendations, I am going to highlight the special call for equity as the founding principle of the recommendations on integrating new technologies, more beyond being prevention encouraged by the ease of its use than by the substantive legal and procedural concerns to which appealing to encourage. I consider the practical implications a balance between the function of the lowest common denominator in the prevention of implementation costs alieving the weaker part, and that of the highest common multiple of potentiation drive for the benefit of oneself. As when we clclaimedo act without haste but without pause, leaving no one behind along the way to the extent that sensiness in the International Arbitration industry allows.

CIArb guidelines to deal with technology challenges.

Similarly, CIArb approved in 2021 its respective Code of Good Practices in the use of this same type of tools. Two large groups can distinguish among the measures that include the CIArb recommendations: the general guides, with four guiding principles, and another four on cybersecurity.

Summarizing the first part of CIArb's document, the general guidance implies, for the people in charge of the arbitral role, the following: a) understanding the levers and gears for avoiding the socerer's apprentice syndrome; b) provide skilled arbitrators to evaluate the disadvantages of technology not merely in terms of usability, but in the weight of learning curve, cost effectiveness, adversifying challenges and focus on the dispute; c) allow the use of technology with caution in excess when eventually undermine fairness and transparency, which means not to let avoid asking questions about the how, the why and the what for when using some driver as means and the issues on collateral damages to the process, the parties involved (persons and firms), the Court, the institutional process; d) as the opposite side of the above, avoid the use of technology with caution in defect in all related to secure use, breach confidentiality or loss essential data; and here there is some to connect with something later: quis custodet ipsos custodies when in the case of Insider policy in arbitral expectations and behavior outcomes, which not necessarily mean an issue to tackle because of new technologies, but precisely to mitigate it thanks to them. They are the topics related to asymmetries information issues conveyed under the radar.

Regarding the second, and about cybersecurity, it distils the obvious in prudence: implement security standards, identify assets and data, appeal to available institutional support, and adopt restrained information management practices.

What does the CIArb document suggest? The core line through which it evolves speaks of temperance and containment among three levels of commitment: screening, inspiring and appealing with temperance. And, now, coming back to what Peter Nahmias points out, the arbitrator must be invested with all this as required by powers that must be claimed and demanded to be suitable for the process. With two questions on my side: a) how to prevent an arbitrator from a breach of his duties by omission, without qualifying it as negligence, and b) how to educate and demand knowledge in the new language and language traps when handling tools and information that has to unravel if they do not know how to identify, precisely, the funnel into which a technology that they do not understand introduces them, that shapes their minds and menaces the autonomous decision-making process referred to in guideline 5.5. That is a challenge.

Third Part: Procedural into thin air and Algorithmic Patterns: AI

The article's third, daring, innovative part is the reflection guided by the McLuhan evaluation method. [Read my comment 1st to the introduction post in the general LinkedIn thread] We arrive at this viewpoint in the walk with the evolutionary character of the human conscience guided by the waypoints of the available technology in the notepad. The author goes through the first few paragraphs here, introducing himself to the change of scenery that the 'Deux ex Maquina' brings with it: the development tools of the processes that take place in an immaterial electronic scenario, or the better for the knights with brilliant shields, under a hybrid scheme performance.

It is the last part of the document before the conclusions and deals with two issues: virtual audiences and Artificial Intelligence. Nahmias subjects them to uncoupling work similar to complex molecules in a gas chromatography column. This analysis responds to McLuhan's methodological tetrad, which presupposes that there must be aware of what it means to exercise through externalizations and instrumental manifestations of ourselves. It is what it would be like to operate in a market in which each one performs managing an exoskeleton that could eventually expand the effects of our actions, being acts also the expressions with which the wills express. The exoskeleton is thus a multiplier lever [But, sometimes, it can also be a dividing lever, and in that case, what is adhered to ourselves should instead be considered a ballast. In the instances in which we deal with it, this would result in poor technological performance and the burden of not having access to any gain: a ballast by defection].

The tetrad responds to a method of four questions that, regarding the introduction of an instrumental novelty, requires a certain analytical scoring:

• - What improves technology? (What amplifies or intensifies which favours assigning a focus of utility as an advantage);
• - What makes technology obsolete? (Which removes from prominent what was already in operation, which favours orienting the substitution policy and its challenges);
• - What does technology recover that had previously been obsolete? (What it recovers that remained ignored, and from where can we extract a chance for complimentary benefits); and,
• - What becomes of technology when taken to extremes? (What threat emerges in case of a maximalist use of this novelty, which allows anticipating risks).

And submit to such a pickling process the interactions of technology with the challenge in the proposal to use virtual hearings, with -later on- to take advantage of the analysis and elaboration technology that results from implementing and using Artificial Intelligence algorithms.

VIRTUAL HEARINGS | PROCEDURALS | On the last question regarding virtual hearings, he raises concerns like the debate above on the exoskeleton and the ballasts. McLuhan uses the metaphor of the servomechanism that, wanting to expand the potential of the social actor, ends up inverting the terms between function and organism in the achievement of utility: from 'the function makes the organ' to 'the organ makes the function'. The example is powerful: the Indian rowing as a servomechanism of the canoe. Nahmias hides in the myth of Narciso in a very suitable way. It is convenient to read it carefully to realize the following slide: the standardization that technology forces and the demand for certainty needs in the speed of processes lead to homogenization thanks to the use of 'samples' and formal limitations. We accept that the devil is in the details. Still, with standardization, we will repeal the elements if they were detrimental to the alchemy of standardization and, from there, simplify outcome patterns and direct effect in the use of technologies that modelling disparity at convenience. A cautionary note here for that.

In the author's opinion, using standardized blocks of information mainly consolidates mental 'shortcuts'. Shortcuts that set patterns of behaviour that, over time, end up being seen as a natural response when they are nothing more than an induced effect of the groove that is left marked in the ground after the stream draft the course of the water. You would never know if there would be no other option than if exceptional circumstances arose. As usually happens when floods of water discover that where a population had spread with homes and lives, there was only a channel reserved for a while simply longer than that of those who wanted to convince themselves that they were abandoned from one hefty rain to another, being 'abandoned' a tricky word.

Technologies that virtualize the liturgy of the process and, incidentally, standardize behaviour patterns are at the mercy, according to McLuhan, of the invasive potential of technology. Nahmias wonders what behaviour will be adopted by those who traditionally intervene to manage processes to which new patterns are applied. Similar to scenarios where technology overwhelms beyond the service offering, what can expect here is that there would be partial capitulation towards achieving responsibility of correct operation, leaving -wishing, instead- the applied technology to assume the consequences and no other one that is to say: the syndrome of washing hands. This cognitive bias allows us to attribute to something outside of ourselves (technology, in this case) the critical factor of events (the decision itself awarded) that could no longer be affected but which, in addition to producing calm, blurred the need to face the facts. It was like the process in which regulatory tangle is seen as dark arcane that shifts the blame from the wills of those positioned to make decisions and monitor towards the anonymity of the force of faith dressed in sticky bureaucracy cream.

ALGORITHMIC PATTERNS | Applying the same pickling process to the proposal to request Artificial Intelligence technology for International Arbitration, Nahmias borrows the characteristics referring to AI as a species for an entire genus: it is a tool of predictive data analysis that takes advantage of Bayesian machine learning. What resembles that practitioners in the profession are the ones who adapt to technology, not the other way around, and this is a matter of time to happen. Therefore, what was said before about a particular claudication scent takes shape.

Although the algorithm must resolve a question of logic by assigning failures and successes in the body of controversial relationships, it also begins clear that dealing with the conventional training of the legal professional may be appropriate to be completed with others pushing the task forces. Close to this, I found it challenging to consider that the figure of individual or panel ad-hoc Arbitration cannot cover solvency not having at hand structuring resources in a project heavily penetrated by the latest technologies. Still, I am confident that in closed future, there will be AI service packages on demand under the freelance spirit or offered in the services menu of a Court or Arbitral Tribunal as part of the facilities for the sole arbitrator or ad-hoc panel. Mr Nahmias mentions several promissory names.

Then, it would be necessary to provide enough confidence so that a matter on the border of what is admissible when considering the benefits of arbitration opposite the jurisdiction. The author opportunely points it out: interrupt asymmetries information among those who can access compared to those who cannot- due to confidentiality arbitrators and closed rounds for appointments out from the Hall views. In more conventional terms, it is a trade union procedure incompatible with the liberalism preached. Still, it also does so with the flow of discrete information -said now in non-mathematical terms- about: "that a select group of professionals has extraordinarily greater access to information on unpublished awards, decision-making tendencies of the courts and specific details of the arbitrators. It stands to reason that certain arbitrators and firms are often selected by clients. It is a natural result of information asymmetry." He explains aetiology circumstances and responses offered by the market in terms of access and transparency on Redacted and Edited Awards, which deserves a read as carefully as the rest of the article.

ARBITRATORS AND ORACLES

To finish this walk. Peter Nahmias provides a suggestive idea: to make the arbitrator's panel a tool for supervising the technology in use. Well, this is something already claimed in the guidances: do let the understanding of the scope, derivatives and reliability of the instruments put in favour of due process, transparency and procedural equity escape from their hands, but maybe do not have to insist: the arbitral panel ought to play its role, in the same way as technology, especially if the technology is configured as a supplier external to the parties, having it has to do with data collection and monitoring. Peter Nahmias doubts how this could do it. It is worth remembering that there are platform protocols based on algorithms in which, on the different layers from which decisions were elaborated from the flow of data, 'oracles' in platforms also appear with a role to play. Oracles are latency protocols activated by cycles or demand; it can be either other algorithms with that specific function or personal elements that compromise their criteria in the supervision of the proper functioning of the software. And they successfully and confidently process arbitrations of disputes in areas such as exchanges in crypto-assets markets. However, our author indeed wants to focus on International Commercial Arbitration. And that means moving to a screen with a higher level of difficulty.

However, the vision of the arbitrator or the arbitrators' panel as the last kept of equity or clean play in the procedures is not a crazy issue, even with the character of being the 'second express instance' able to annul a bizarre decision taking by the algorithm. It is certainly captivating to know that today artificial intelligence algorithms also suffer from 'hallucinations' and that they correspond to the volume of reserves at the moment in which this technology is. But, what could today be considered an algorithmic delirium from the perspective of formal logic, could well be an out-of-the-box thought of a code without self-conscience towards its singularity destination point drafting its asymptotic chart curve: an eternal no-end journey.?

CONCLUSIONS

I have nothing to add to the paragraphs with Peter Nahmias's conclusions, but this: the walk I strolled by all the capsules that he left scattered along his 16 published pages deserves a 1-0-1 talk broadcast, some spin-off to detail and attend to his CAT visiting our future with the eyes wide open.

Let's be optimistic about the final image. Even though in some parallel universe of those described by physical theory subject to Heisenberg's principle of uncertainty (which you could ideally identify with our managed and incomplete Metaverse), there was possible that the chronicles of just over 25 years ago keep the memory of something similar to this:

“The Skylex funding bill is passed. The system goes online on August 4th, 1997. Human decisions are removed from strategic arbitral performance. Skylex begins to learn at a geometric rate. It becomes self-aware at 2:14 AM, Eastern time, August 29th. In a panic, humans in the Court try to pull the plug. Skylex understood it as a contempt of Court attack and order to release the CyberKracken.”

Well, given what you have read above, an arbitral award from any other more prosaic Skynet on an arbitration process under -to say- Swiss law for a European firm regarding the construction of a cement plant in a West African State, and solving the dispute concerned back charges, liquidated damages for delay and damages caused by the breach of the arbitration agreement is quite more relaxed, even na?ve, than the epic staging of what could have happened at the end of that last century in any given Metaverse some day at 2:14 AM, Eastern time, ending August.

And it would be fine, then.