AI and Arbitration: Artificial Intelligence in Spanish arbitration proceedings

This is the second article in Clyde & Co’s latest international arbitration series covering the topic of AI in international arbitration. In this piece, associates Michelle Donovan and Sofía Rivas from our Madrid office provide the legal perspective from Spain.

Artificial intelligence (‘AI') remains a 'great unknown' within the Spanish legal system, and it is used mainly as an assistance resource.

To date, only a few have ventured to legally define the concept of 'artificial intelligence' in the Spanish legal landscape. Even the Spanish courts themselves have not yet ruled on this term. However, the Royal Academy of the Spanish Language (RAE) has defined AI as:"the scientific discipline that deals with the creation of computing programmes that execute operations comparable to those performed by the human mind, such as learning or logical reasoning” ¹.

AI has such a broad scope that we can consider its implementation in arbitration proceedings in multiple ways, however there are two main ways in which it is used in the Spanish legal system: (i) as an assistance resource; and (ii) as a decision-making resource. 

AI, an assistance resource

Among the main Spanish arbitration courts, it seems that AI is used mostly for assistance in logistics issues. This was indicated at the '1st Meeting of the Working Groups of the International Arbitration Centre of Madrid (CIAM)', in which leading lawyers, experts and arbitrators discussed the impact of different sectors on the evolving landscape of arbitration proceedings in Spain².

AI, a decision making resource

On the other hand, regarding the possible implementation of the ‘decision-making’ function of AI in arbitration, we understand that, on paper, it has a greater viability than in the Spanish ordinary jurisdiction.

This is because, the use of AI applied to judicial decisions in the ordinary jurisdiction would create a direct conflict with Article 24 of the Spanish Constitution, where some fundamental procedural rights are contemplated. In this regard, some members of the Spanish courts have argued the following: "From the point of view of the Spanish legal system, the use of artificial intelligence applied to judicial decisions is directly related to the fundamental rights recognized by Article 24 of the Spanish Constitution, in the sense of the guarantee of effective judicial protection, prohibition of defenselessness, ordinary judge predetermined by law, and public proceedings with all the guarantees. It is a different matter if judges make use of this technology not to make a decision or to help them in the evaluation of evidence, which should be a completely human process, but to help or support them when it comes to being able to relate facts more easily, to make comparisons, search for large amounts of data, etc” ³.

Nevertheless, we understand that arbitration presents a more favourable scenario for AI to make its way as a resource for decision-making, as Article 24 of the Spanish Constitution does not apply. This has been declared by the Spanish Constitutional Court in its judgement no. 50/2022: "those who freely, expressly and voluntarily submit to arbitration, as a heteronomous method of resolving their conflict, choose to leave the guarantees inherent in Article 24 EC out of their dispute and to be governed by the rules established in the Arbitration Act" ⁴.

As can be seen, the legal principle of effective judicial protection provided for in Article 24.1 of the Spanish Constitution, is not enforceable in arbitration proceedings as such. It can only be invoked ex post once an action for annulment has been brought against the arbitral award, as this annulment is heard by the courts of the ordinary jurisdiction.

In this sense, we understand that, if the rules established in the Spanish Arbitration Act are respected and, as long as the parties to the dispute are in agreement, it would be possible to reach a resolution in arbitration by means of AI without violating Article 24 of the Spanish Constitution.

Conclusion

Despite the above, we can conclude that, at present, there are no plans to delegate the jurisdictional function to any type of AI, at least in Spain. There is no doubt that AI in arbitration –at the moment– is limited to assisting and/or supporting arbitrators and parties in purely logistical aspects.

This series will continue next week with the perspective from China.

^{1 On a general basis, in Spain we follow the definition given by the European Commission, which reads as follows: "Artificial intelligence (AI) refers to systems that exhibit intelligent behaviour by analysing their environment and taking actions - with a certain degree of autonomy - to achieve specific objectives".}

^{2 https://arbitrajecima.com/los-presidentes-del-centro-internacional-de-arbitraje-de-madrid-y-del-centro-iberoamericano-de-arbitraje-firmaron-un-acuerdo-para-aunar-y-unificar-su-actividad-con-con-ocasion-del-i-encuentro-de-grup/}

^{3 https://www.cej-mjusticia.es/sede/publicaciones/ver/13637}

^{4 Constitutional Court (Second Chamber) Ruling no. 50/2022 of 4 April. RTC 2022\50}