AI and Arbitration: The use of AI in the Polish Arbitration System

This is the fifth article in Clyde & Co’s latest international arbitration series covering Artificial Intelligence (AI) in international arbitration. In this piece, Senior Associate Patrycja Starczewska and Associate Aleksandra Domarecka from our Warsaw office provide the legal perspective from Poland.

Arbitration is a vital mechanism for resolving disputes in Poland's legal landscape. It seems that the next chapter in the development of arbitration proceedings is the use of Artificial Intelligence (“AI”). Algorithms and modern tools are believed to be able to help the justice system to work faster and more efficiently. 

Issues related to AI are not yet regulated in Polish legislation or case law. However, in 2020 the Polish government adopted a policy paper relating to the use of AI titled Policy for the Development of AI in Poland.¹ The paper sets out general goals that need to be achieved in order to support the development of AI in Polish society, economy and science. Regretfully, it does not provide any concrete solutions for the administration of justice. Thus, for the time being, the presence and use of AI in courts, including arbitration, stem from practice rather than regulations.

The Polish arbitration system

Arbitration is a form of alternative dispute resolution explicitly recognized and regulated in the Polish Civil Procedure Code. The procedural rules apply to both domestic and international arbitration – mostly when the place of arbitration is in Poland. Overall, arbitration rules outlined in the Polish Civil Procedure Code aim to provide a flexible and efficient framework for resolving private disputes outside common courts. A vast majority of causes of action relating to economic rights and commercial transactions (including, with some limitations, employment, consumer and corporate disputes) are arbitrable. 

The course of the arbitral process, including procedural rules for the appointment of arbitrators, the conduct of evidence and other proceedings leading to the arbitral award, are regulated by the institutional rules issued by arbitration centers (or in model rules applied by ad hoc tribunals). Each arbitration tribunal could therefore address issues related to the use of AI within its own institutional rules or even in procedural orders issued in individual cases – so long as the decisions do not violate generally applicable law and are not against Poland’s public order. 

Existing uses of AI in arbitration

Despite the advancements in AI technologies globally, there are still relatively few AI-based mechanisms used or recognized in Polish arbitration. Most of the legal community in Poland continues to rely predominantly on conventional methods of legal research, document analysis, and case management. However, the legal landscape is clearly evolving towards a greater use of AI and there are some notable developments.

AI is currently mainly used in arbitration to support administrative activities related to case and document management. For example, there are digital arbitration courts that use AI to manage cases.²  Such digital cases are "conducted" on a specialist online platform whereby the parties log in to the platform to participate in an online arbitration. On the case profile, the parties complete the claim and response forms as well as attach evidence in electronic form (videos, photos and document scans). Hearings are generally very scarce and communication with the arbitrator or the other party takes place via chat functionality. 

In this context, uses of rudimentary AI tools assist to accelerate the examination of the case, as well as to reduce the workload of the arbitrators and administrative staff. However, AI is not used to provide advanced legal analysis or issue judgments; it does not offer suggestions for the resolution of the legal issues disputed by the parties, nor does it propose possible judgments. 

First arbitration court to use advanced AI in Poland 

In response to the increasing role of AI, Polish company ENOIK is planning to start, this year, the operation of Poland's first arbitration court to use advanced AI – the ENOIK Arbitration Court.³ 

The ENOIK court will operate as an online platform and it will use AI to analyse the jurisprudence of common courts in comparable cases. AI algorithms are trained with the intent to facilitate the decision-making process of the arbitrators, relieving them of simple and repetitive procedural activities and suggesting tentative determinations in the case. ENOIK claims that its AI model would also support the arbitration process by automatically preparing a draft of the award.

By using AI to support the arbitrator, ENOIK hopes to ensure a much shorter case resolution time (reducing it to only 40 hours); it argues that its AI-enhanced process would result in lower costs of proceedings, including removing the costs of appearing in court and/or legal assistance. However, the process before the ENOIK court is to be transparent, intuitive and objective – as it will be the arbitrators, not AI, who will ultimately issue an award. 

The ENOIK platform is not yet active but according to online reports, ENOIK is expected to start operating later this year, and it remains to be seen if and to what extent its aspirations are realised.

The future of AI in Polish arbitration

The future use of AI tools is expected to increase, predominantly in the following areas: automation of routine common activities (including recording hearings, processing documents coming to the court into digital data); increasing and facilitating access to information about the case for the parties; analysing and processing large amounts of data and documents related to the case (including analysis of evidence, identifying deficiencies in documentation); analysis of similar cases and suggesting judgments based on those previously made; creating draft awards in straightforward, run-of-the-mill cases.

Whether AI is capable of replacing arbitrators in the foreseeable future to adjudicate cases on its own seems to be a speculative question. For now, such development seems unlikely. Apart from the requisite changes to the legal setup, resolving non-trivial legal disputes arguably requires not only logical thinking, but also human life experience and knowledge, in particular when one is to make judgments over ethical or moral issues. 

Conclusion

At this point in time the use of AI in arbitration proceedings is not standard in Poland, however, the initiatives such as the ENOIK arbitration court are evidence of a growing awareness of the need to implement and use AI in legal proceedings. Since arbitration strives to offer a more efficient and less formal process compared to proceedings before common courts, a well-trained and tested AI could make a significant contribution as a tool supporting the process. However, the implementation of AI on a wider scale will require common efforts among legal practitioners, arbitrators, technology providers, and policymakers in order to reach the full potential of AI in arbitration while also respecting the principles of fairness, predictability, and transparency.

The next article in this series will feature the perspective from the UAE.

¹ https://www.gov.pl/attachment/928200fa-b1a6-4c0c-b3a8-d1fbf1e1175a

² For example: https://www.ultimaratio.pl

³ https://enoik.pl/