When an arbitrator's use of AI belongs on the record
There is no general duty to announce every use of AI. There is a narrower and more useful question: did the tool introduce something material into the process, the record or the reasoning?
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The record is the threshold
The machine may sort what is already in the file. Once its output changes what the tribunal relies on, the question is no longer whether software was used. It is whether the parties can see and answer what entered the reasoning.
No register of every prompt
An arbitrator uses a model to rename exhibits, search a transcript and assemble a chronology. The same arbitrator then asks it to compare two witness statements, follows a contradiction it identifies and relies on that contradiction in the award. Calling both acts ‘use of AI’ hides the only distinction that matters.
None of the five published instruments compared below imposes a blanket duty to disclose every use. They use different words — case-by-case judgment, transparency, discretion, impact on the process, impact on evidence or outcome — but all move toward disclosure as the tool moves from administration into material analysis.
The kept-current survey records the wider institutional position. The companion analysis on who made the decision deals with challenge and enforcement. This page has the narrower task: deciding what belongs on the record before an award is issued.
Five texts, five formulations
These are not interchangeable rules, and none binds every arbitration. Read together, however, they identify the same pressure points: material influence, information outside the record, the parties' opportunity to respond and the arbitrator's personal mandate.
| Source | What it says | The practical trigger |
|---|---|---|
| SVAMC Guidelines | Disclosure is not generally necessary. It is decided case by case, with due process and privilege among the circumstances that matter. | The circumstances of the use, not the mere fact that a tool was opened. |
| SCC AI Guide | Tribunals are encouraged to disclose AI used to research or interpret facts and law, or to apply law to facts. | The tool enters legal or factual analysis. |
| VIAC Note on AI | Arbitrators may tell the parties which tool they plan to use and for which tasks, and should give the parties an opportunity to comment. | The tribunal considers the planned use relevant and necessary to raise. |
| AAA-ICDR Arbitrator Guidance | Information obtained from a generative tool that could affect the process or decision-making should be given to the parties with an opportunity to address it. | The output, rather than the act of using the tool, may affect the case. |
| Ciarb AI Guideline | Disclosure may be required where use affects evidence or outcome, or delegates an express duty of an arbitrator or another participant. | Evidence, outcome or delegation. |
The AAA-ICDR document itself carries a 2023 copyright, although the current AAA resource library labels its arbitrator guidance as 2025. This page cites the document rather than assigning it a cleaner date than the source supports. The ICC and LCIA are not rows here: this is a comparison of dedicated published guidance, not a claim that silence in institutional rules answers the question.
A function-and-materiality test
Start with function: what did the tool actually do? Then ask materiality: did the output change what entered the record, what the tribunal considered, or how it reached the result? The product name, model version and length of the prompt are secondary until one of those answers is yes.
The response should rise with the consequence. Routine administration stays quiet. Material research or analysis goes on the record. A new issue goes to the parties. Delegated judgment is not cured by disclosure at all.
| Use | What the function changes | Procedural response |
|---|---|---|
| File administrationRenaming, indexing, format conversion, basic retrieval | How existing material is stored or found; it adds nothing to the record and makes no evaluative choice. | No routine disclosure No general need to disclose. The answer changes if confidential material was sent somewhere it was not permitted to go. |
| ResearchFinding an authority or source not cited by either party | What legal material the tribunal has in front of it. | Put the material use on record If the authority will do material work, identify the authority and the use before relying on it. The source matters more than the prompt. |
| Analysis of the recordComparing statements, detecting an inconsistency, clustering evidence | What the tribunal notices in material the parties supplied. | Put the material use on record Put a material use on the record and expose the underlying connection, not merely the name of the model. |
| A new material issueA factual inference, legal characterisation or contradiction nobody argued | What the case is about. The output creates a point the parties have not addressed. | Disclose and hear the parties Disclosure is only the first step. State the issue, show the material it rests on and give both sides a real opportunity to answer it. |
| Adjudicative judgmentWeighing evidence, choosing the result, producing reasons not independently formed | Who decides the dispute. | Stop and decide independently Do not delegate it. A disclosure that the model made the decision does not turn the output back into the arbitrator's judgment. |
Disclosure is notice, not a remedy
Suppose a model identifies a contradiction that neither side raised. A note saying ‘AI was used’ tells the parties almost nothing. They need the contradiction, the documents said to conflict and enough time to explain why the comparison is right or wrong. The procedural protection is the opportunity to answer the point, not knowledge of the software brand.
Timing therefore matters. Disclosure after the tribunal has settled its reasoning may record what happened, but it cannot restore a hearing that never took place. If the output will matter, the parties must see the issue while the tribunal can still change its mind.
Disclose the material intervention, not the existence of the machine.
And where the intervention creates a new point, let the parties answer the point before it becomes a finding.
A separate question: where did the file go?
A use can be immaterial to the merits and still be impermissible. Uploading pleadings, witness statements or a draft award may engage confidentiality, data-protection, privilege, security and contractual restrictions even if the output is never cited. Those duties turn on the input and the deployment, not on whether the result influenced the award.
That is why disclosure cannot authorise the upload after the event. The tribunal should settle approved environments, retention, training use, access and data location before case material is exposed. ‘We disclosed it’ is not an answer to ‘you were not entitled to send it there.’
Put the line in the first procedural order
A workable term does not name today's models or require a prompt log. It says who is covered, what kind of use crosses the threshold, when it must be raised and what happens next.
Cover every participant
Tribunal, secretary, institution, counsel, experts and service providers do different work with the same file. The term should say which of them it governs.
Whose use is inside the order?Define material use by function
Use that adds a source, identifies a contested connection, evaluates evidence or materially shapes reasoning crosses the line. Routine formatting and retrieval ordinarily do not.
What changed because the tool was used?Require notice before reliance
The point of notice is to permit a response. A disclosure first made in or after the award arrives too late to do that work.
Can the parties still affect the tribunal's view?Separate input controls from disclosure
Name the permitted environment and settle retention, training, access and data location. Materiality to the decision is not the test for whether a file may be uploaded.
Where does the case material go?Say what follows
A material new issue is circulated for submissions. An unreliable output is disregarded. Any adjudicative judgment produced by a tool is redone by the tribunal itself.
What must happen after the line is crossed?