GERMANY Trends and Developments Contributed by: Tanja Pfitzner and Claudia Löschhorn, Pfitzner Legal (in collaboration with aginom)
settings, the checks undertaken and the extent of any reliance should be documented. A distinction should be made between information disclosed to the par - ties and any protected internal audit record and rules should be established governing access, retention and deletion. Should the award later be challenged, clear documentation may help demonstrate that the arbitral tribunal maintained control of the process and safeguarded the parties’ procedural rights. Drafting the decision yourself AI may assist with bounded support tasks only. The arbitral tribunal must personally determine the facts, the applicable law, the reasoning and the disposi - tion of the case. It must not delegate assessments of credibility, ultimate factual or legal conclusions or the outcome. Conclusion The risk of hallucination urges the profession to verify what AI produces. Dealing with bias proves even more challenging. The non-deterministic nature of AI sys -
tems that are not strictly rule-based adds an element of chance to outcomes that is difficult to align with ADR principles. Accordingly, it demands preparation, learning to ask the right questions and the ability to recognise when output may be wrong even though it appears persuasive, and psychological and profes - sional strength of arbitrators to be aware of and over - come the “automation bias”. Rather than leaving the elephant in the room unaddressed and letting those involved in the proceedings fall back on unchecked and potentially unsuitable consumer-grade AI sys - tems, the issue should be raised openly and AI- related risks managed constructively. This response should be a procedural one, an approach that has proven successful in keeping inherently fallible human decision-makers in check but adjusted to reflect the particularities of AI systems. Used with appropriate safeguards, an AI tool becomes what the parties to an arbitration have contractually bargained for: a useful support tool to human decision-makers who steer the decision-making process and independently exercise judgement.
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