• TECHNOLOGY
CANADA WEST
MY ADVICE...
In the loop
Use AI tools for which you can explain the output. This means that you should understand what sources the AI you are using is relying upon and how those sources are being used to develop the AI’s output. Understand the limitations of the AI tools that you are using: This is related to tip ‘a’. You need to be able to understand and explain what the AI you are using cannot do and where it is likely to be unreliable. Have a policy within your organisation for how AI can be used. This policy should clearly outline how to responsibly use AI to serve clients in accordance with your ethical obligations. This includes ensuring client confidentiality is protected and that there is a “human in the loop” to double-check the results generated by AI.
continue as AI improves.
and area of the lawyer’s practice and responsibilities”. For disputes lawyers, this may mean using AI to streamline document review and production or accomplish research tasks. However, the lawyer is still responsible for the use of AI. Where lawyers choose to rely on AI to prepare submissions, they remain responsible for the accuracy of submissions. The Alberta Court of King’s Bench directed that there must be a “Human in the loop,” stating that: “…any AI-generated submissions must be verified with meaningful human control. Verification can be achieved through cross-referencing with reliable legal databases, ensuring that the citations and their content hold up to scrutiny.” In the context of arbitration, this same principle should be held valid. In international arbitration, best practices from multiple jurisdictions should be considered. The Silicon Valley Arbitration and Mediation Centre suggests: “[p]articipants involved in arbitration proceedings who use AI tools in preparation for or during an arbitration are responsible for familiarising themselves with the AI tool’s intended uses and should adapt their use accordingly. All participants using AI tools in connection with an arbitration should make reasonable efforts to understand each AI tool’s relevant limitations, biases, and risks and, to the extent possible, mitigate them.” Again, mitigating AI risks will require humans to remain in the loop.
AI is highly effective at tasks that require quick analysis of large datasets. For example, AI can be used to process vast amounts of data to: • Detect intellectual property infringement or fraud by analysing massive data sets. • Monitor compliance with regulations. • Analyse case law, helping counsel determine whether to proceed with litigation or arbitration. However, AI remains limited by the quality of input data. Where data is incomplete or inaccurate, the quality of results provided by AI suffers. Q3 What questions does AI pose for liability – who is accountable for the actions of AI, and has your jurisdiction prepared for the question? Like many jurisdictions, Alberta continues to grapple with accountability. There is yet to be a fully developed regulatory regime in Alberta (or Canada) for AI generally or the use of AI in arbitration proceedings. Regulatory regimes across the world are struggling to keep up. Legislation has been proposed
Disputes in the age of AI
Curtis Marble Partner Carbert Waite LLP
Q1 How should parties seek and agree on a seat for ADR, and what advantages does your jurisdiction offer? Ideally, parties should agree on the seat for arbitration when negotiating the dispute resolution clause in their contract. Some of the considerations that parties should keep in mind are: • The neutrality of the location. • Accessibility for both parties (unless the parties will be participating in a remote process). • Access to reputable counsel and arbitrators in the jurisdiction. • Legal infrastructure to support the arbitration. Alberta offers several advantages as an arbitration seat. Alberta provides a neutral arbitration venue for parties seeking resolution in an English- speaking, common-law jurisdiction. Alberta is easily accessible, with direct domestic and international flights to Calgary and Edmonton. There are numerous modern, well-equipped conference venues capable of hosting large arbitration proceedings. Alberta has a sophisticated legal framework with clear, modern legislation supporting arbitration and enforcement
development and use of artificial intelligence across a broad spectrum of industries. Still, this guidance is not yet binding, and the regulatory regime is not fully developed. This means existing Alberta laws on negligence would likely be applied to determine questions of AI-related liability. This is consistent with the guidance provided to Alberta lawyers by the Law Society of Alberta regarding the duties of legal professionals when using AI. Lawyers in Alberta are mandated by the Code of Conduct. A lawyer must “…perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer.” This means that lawyers must “…develop an understanding of, and ability to use, technology relevant to the nature
of arbitral awards. Domestic arbitration is governed by the Arbitration Act, while international arbitration is governed by the International Commercial Arbitration Act. Alberta’s vibrant energy and high-tech sectors mean that there are many choices of experienced and well-qualified counsel familiar with running complex arbitrations. As counsel and arbitrators based in Alberta bill in Canadian dollars, arbitration in Alberta tends to be more cost-effective than similar proceedings in other centres, such as London or New York. While many parties may choose to proceed with ad hoc arbitration under the legislation, they may also choose to take advantage of the ADR Institute of Canada’s institutional rules or case administration services, which can assist with appointing qualified mediators and arbitrators. Q2 Have you seen or do you expect to see a rise in the use of AI to discover infringements and actionable matters? Companies and individuals are either implementing or already have implemented AI solutions to detect actionable issues. This trend will
Curtis is a partner at Carbert Waite LLP, Fellow of the Chartered Institute of Arbitrators, and Co-Chair of the firm’s Commercial Litigation Practice. Curtis has extensive experience in a variety of commercial litigation and arbitration matters, including international arbitration and litigation, defamation, and estate litigation. His clients include multinational corporations, energy companies, construction companies, family-run businesses, and individuals. He also acts for US and foreign law firms as local counsel. Curtis has both domestic and international experience with commercial and civil arbitrations and mediations and has acted in complex multi-parti international arbitration involving commodity prices and a domestic arbitration concerning construction deficiencies. He recently acted in a high-value mediation related to the disposition of significant Alberta ranch lands pursuant to an estate. In his commercial litigation practice, Curtis acts for local and international companies as well as individuals in a wide variety of disputes including contracts, construction projects and environmental remediation. He is the co-chair of the commercial litigation practice group. Curtis is experienced in estate litigation and has acted in matters concerning capacity, the disposition of business assets, and payment of personal representative’s expenses. Curtis has appeared before all levels of court in Alberta and before various regulatory boards.
at the federal level to implement a regulatory regime for artificial
intelligence. There is also a voluntary code of conduct that many companies have signed on to regarding the
About us... carbertwaite.com Carbert Waite LLP was founded in 1999 as a boutique litigation firm with additional expertise in arbitration, mediation and business law. We are skilled advocates with experience in a wide range of legal disputes both domestic and international. We do not believe in a one-size-fits-all approach. We take the time needed to understand our clients’ particular needs and goals and then set about to design a strategy to resolve the dispute as effectively and efficiently as possible. Drawing on a talented pool of lawyers at various levels with various backgrounds means we can find a solution to fit a client’s unique requirements. We are also proud of our culture and approach to the practice
of law. We believe in the value of working hard for our clients but also recognise the need for our lawyers and staff to have balance in their lives. We are a family-oriented firm and enjoy each other’s company. We have flexible work arrangements and several part-time lawyers (partners and associates). Building diversity in our lawyers and staff is a focus for us and we believe that a diverse team allows us to better serve our clients.
+1 403 705 3642 marble@carbertwaite.com irglobal.com/advisor/curtis-marble
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