Artificial Intelligence as a Judge: Can We Rely on a Machine? · practitioners and IT designers when artificial intelligence is further introduced in courts, as well as analysing

Faculty of Law Academic Year 2016-17

Exam Session 2

Artificial Intelligence as a Judge: Can We Rely on a Machine?

LLM Paper by Alina Pastukhova

Student number : 01600528

Promoter : Prof. Dr. Eva Lievens Co-Promoter: Prof. Dr. Maud Piers

Acknowledgement

First and foremost, I would like to express my greatest appreciation to my

supervisor, Professor Dr. Eva Lievens for challenging me with such an

ambitious topic and the one I have never explored before.

Professor Lievens was greatly tolerant and supportive; she gave me

constructive comments as well as comprehensive feedback. With her support

I learned more about academic writing and found a new inspiring area of law

for my further development and research.

I would like to acknowledge the LLM Programme and Ghent University for

providing knowledge and guidance this year.

Additionally, I would like to thank all the people, who contributed in some way

to my work, and to my LLM groupmates, with whom I had opportunity to

discuss my ideas.

Ghent, 26 July 2017

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Ghent University, Faculty of Law – International Relations Office

Universiteitstraat 4, B-9000 Gent, Belgium

www.UGent.be

TABLE OF CONTENTS

Introduction .................................................................................................................. 5

Chapter 1. An Artificial Intelligence judge concept ................................................... 9

1.1. Process of machine thinking and learning ......................................................... 9

1.2. Recent steps in prediction of judicial decisions ............................................... 11

1.3. The use of robots in information analysis in courts and online dispute resolution

12

Chapter 2. Regulating AI and robotics ..................................................................... 17

2.1. Brief history of Artificial Intelligence law .......................................................... 17

2.2. Three laws of robotics and reality .................................................................... 18

2.3. Regulations connected with robotics ............................................................... 20

Chapter 3. Human rights provisions and their possible impact on the concept of

AI judge ....................................................................................................................... 25

3.1. The right to a fair trial in different jurisdictions ................................................. 25

3.2. Principles of independence and impartiality .................................................... 29

3.3. Fair trial by robots and compliance with procedural guarantees ..................... 31

3.4. Requirements for a judge ................................................................................ 33

3.5. Human behaviour and deviation from law in decision- making........................ 36

Chapter 4 Recommendations an further research .................................................. 40

4.1. Recommendations: possible transformation and adaptation of laws, and

general safeguards ................................................................................................... 40

4.2. Artificial intelligence and justice: further suggested research directions .......... 42

Conclusion .................................................................................................................. 45

Bibliography ............................................................................................................... 47

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List of abbreviations AI Artificial Intelligence

IT Information technology

ICT Information and communication technology

ICAIL International Conference on AI and Law

WWW World Wide Web

EU The European Union

ODR Online dispute resolution

ADR Alternative dispute resolution

ECtHR The European Court of Human Rights

ECJ The Court of Justice of the European Union

ICESCR the International Covenant on Economic, Social and Cultural

Rights

ICCPR the International Covenant on Civil and Political Rights

UN The United Nations

NLP Natural language processing

ML Machine learning

USAID the United States Agency for International Development

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“Part of the inhumanity of the computer is that, once it is competently programmed and working smoothly,

it is completely honest.”

– Isaac Asimov

Introduction

Technology changes our life People became very dependent on technology. Different devices, programmes and

applications nowadays tell us where to go and what to do. We even rely on technology

in connection to our health and security. We use security detection systems to send alarm

notifications to police, machines servicing clients in the banks, parking systems for the

cars, implants to substitute or maintain parts of the body, surgery and carrying robots,

and many other tools. To what extent can we trust technology in our life?

The so-called "Moore's law" is the observation made by Gordon Moore, the co-founder

of Intel, in 1965, that the number of components in a dense integrated circuit doubles

approximately every two years.1 In other words, the capacity of computer processors

improves twice every two years. This prediction became more than reality. One can see

a proof of it even looking at a 5-year-old laptop and the latest tiny smartphone, which

definitely has more capacity.

Richard Susskind in his book “Tomorrow's lawyers: An introduction to your future” refers

to “The Singularity is Near” by Ray Kurzweil and expresses his thoughts about future:

“I find it amazing that in 1973, when I was 12, I held in my hand my first (large)

electronic calculator, and that in less than 50 years a machine of the same

size will have the same processing power as the human brain.”2

Information technologies are deeply integrated into business, politics, leisure, travel and

other spheres of our life and drastically change current existing professions. This

integration process also affects the job of lawyers and the justice system. One can find

successfully operating technology in justice such as online dispute resolution platforms,

virtual courts, electronic presentation of evidence, and e-working (the use of electronic

court case documents)3. The most futuristic proves to be the prediction of judicial

decisions by artificial intelligence (AI), which according to Nikolaos Aletras ”can be useful,

1 Sneed, A. (2015). Moore's Law Keeps Going, Defying Expectations. [online] Scientific American. Available at: https://www.scientificamerican.com/article/moore-s-law-keeps-going-defying-expectations/ [Accessed 10 Mar. 2017]. 2 Susskind, R.E. (2013) Tomorrow’s lawyers: An introduction to your future. Kindle edn. Oxford, United Kingdom: Oxford University Press. 3 Ibid.

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for both lawyers and judges, as an assisting tool to rapidly identify cases and extract

patterns which lead to certain decisions.”4

Among other factors, like politics, globalisation, historical events, and natural sciences,

which challenge traditionally performed professions, technology is the most merciless.

With the invention of just one small device or mechanism, thousands of people can

become unemployed. Education, medicine, jurisprudence, banking, accounting can be

seen as “classical” spheres, but, they have already changed, even if people still believe

in professionals as the best “tools” and addressees to solve their issues. Technology

challenges such beliefs every day. For instance, the entire US court system in one year

receives three times fewer claims than being resolved by eBay online dispute resolution

systems. The British Library holds less information than the fraud-detection system used

by the British tax authorities.5

According to Richard Susskind, the legal world will change more in the next two decades

than during the last two centuries.6 Lawyers use special programs and platforms for

sharing legal knowledge, conducting due diligence, legal research, and analysis. Today

one does not need a lawyer to draft a contract, whereas it is already an easy task for an

application. Programmes, such as Neota Logic, solve complex multi-jurisdictional legal

questions outperforming the best professionals. Lex Machina is a platform that cleans,

codes, and tags necessary and requested data out using natural language processing

and machine learning. For every case, it extracts all relevant information about the

parties, attorneys, law firms, and judges, as well as mine litigation data from previous

cases to generate best tactics and strategy including an indication of best time to file a

claim.7 A team of specialists would spend many hours on a task performed by a computer

programme in in a very little time.

The Luminance system is another example of a bright technology found at the University

of Cambridge and already used by legal firms of the so-called “magic circle”. The

programme is trained by legal experts to perform legal due diligence. It understands

language the way humans do but at much greater speed and amounts, indicating what

can constitute risks even if there are no direct statements about any.8

What if in the future there will be no human judges? An algorithm created by people and

taught to analyse facts and pieces of evidence will resolve the disputes in the shortest

period replacing people, who sometimes dedicate years of their life to deliver a judicial

decision. Further development of such a concept not only creates a number of legal

4 Aletras, N., Tsarapatsanis, D., Preoţiuc-Pietro, D. and Lampos, V. (2016) ‘Predicting judicial decisions of the European court of human rights: A natural language processing perspective’, PeerJ Computer Science, 2, p. e93. doi: 10.7717/peerj-cs.93. 5 Susskind, R. and Susskind, D. (2015). The Future of the professions: How technology will transform the work of human experts. 1st ed. Oxford, UK: Oxford University Press, pp. 1-3. 6 Ibid. 7 Lex Machina. (2017). What We Do - Lex Machina. [online] Available at: https://lexmachina.com/what-we-do/ [Accessed 25 Apr. 2017]. 8 Luminance.com. (n.d.). Luminance | Artificial Intelligence for Legal Due Diligence. [online] Available at: https://www.luminance.com/ [Accessed 26 Apr. 2017].

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issues but also raises a variety of ethical, moral and philosophical questions to a

particular extent discussed herein.

Richard Susskind specifies three drivers of change in the legal profession: the ‘more-for-

less’ challenge, liberalisation and information technology.9 The first driver is the

willingness of clients to get more services for less money, and actually, the possibility of

law firms and lawyers to provide them. Liberalisation means that despite that historically

only qualified lawyers provided legal services, now there has been a shift from the

standard approach how the legal services can be provided. The line between the legal

and non-legal profession is very much blurred, and legal advice can be provided by

professionals, who deal with fields closely connected to law, but not exactly lawyers. The

third driver that in the opinion of the author of this paper ties all three, is the information

technology. The technology creates new possibilities to provide more legal services with

less cost and with more efficiency.10 Legal research used to take much time and effort,

now with highly technological search systems the performance takes much less time and

can be done even by non-lawyers. However, this insight is just relevant for the developed

countries such as the United Kingdom and the USA11 and is only partially relevant in the

developing countries such as Ukraine, where technology is lagging behind. This paper

does not particularly deliberate on differences of technology development level from

country to country, and a comparison is made only for the purposes of legal issues

analysis.

This paper aims at defining legal obstacles that could be faced by legal theorists,

practitioners and IT designers when artificial intelligence is further introduced in courts,

as well as analysing whether existing legislation and the general principles of justice are

compatible with the concept of Artificial Intelligence (AI) judge.

The added value of this paper aims at extending the academic discussion on the concept

of an AI judge by offering a comprehensive study on the existing legal obstacles and the

required amendments to the current regulations together with proposals for further

research.

The research question:

What could be the main obstacles under the current international, European and national

legal frameworks that prevent an AI judge concept to be implemented in courts?

Structure of the paper:

The first chapter of this writing is devoted to a phenomenon of an AI judge. It is first

relevant to see, how the machine thinks and is taught to make decisions; highlight the

existing trends how technology can be used in solving disputes, as well as the recent

steps in predicting the court decisions.

9 Susskind, R. Tomorrow’s lawyers 10 Susskind, R. Tomorrow’s lawyers. 11 Susskind limited his research to mostly Anglo-American cases.

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The second chapter gives an overview of some aspects of AI Law, technology and robot

regulation together with the issues arising out and in connection with creation and

existence of such regulations.

The third chapter analyses the impact of the human rights principles and provisions on

the concept of an AI judge and explains whether the concept embodiment respects such

principles and provisions.

Finally, the paper ends with the fourth chapter giving some recommendations on how the

legislators should further react to the development of an AI judge concept and some

suggestions on further research questions.

The paper does not concern the data security or the use of personal data in the process

of rendering court decisions with the use of artificial intelligence. Patent law, copyright,

and other intellectual property rights may be relevant in the discussion of the questions

raised in this paper; however, those fall outside the present research. The author of this

paper focuses on the provisions of the concept of an AI judge that can be enrolled within

the current international, European and national legal framework.

Methodology:

The conclusions and suggestions in this paper are made on the basis of the functional

comparative analyses of the selected sources, i.e. recent journal articles, books,

provisions of the European and the international law on human rights, some national laws

on the examples of Germany, Ukraine, the UK and the USA, summarised case law

practice of the ECtHR, cases of the ECJ, interviews with practitioners, and websites

about technology and AI.

German law was taken as an example of national law regime of a developed country and

a Member State of the EU, whereas Ukrainian law is used to show the difference with a

developing country where even existing similar legal rules do not work properly.

The USA and the UK are referred to as leaders in innovation and also common law

regime countries with advanced court systems.

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Chapter 1. An Artificial Intelligence judge concept The purpose of this Chapter is to introduce an AI judge concept and provide information

about the recent trends on how technology is used and can be further used in solving

disputes. The Chapter speaks about the process of decision-making by machines and

the latest research report on the prediction of the court decisions as a possible preface

of an AI judge.

1.1. Process of machine thinking and learning IT practitioner Serhiy Bondarenko from Deloitte was asked to explain how in his view an

AI judge could be created. He gave a brief and comprehensive explanation to people not

dealing with technology as given below.

First, it should be a programme that could estimate the data and distinguish between

categories such as "bad" and "good", "correct" and "incorrect". By inserting a great

number of cases and details into the programme it is adapted to distinguish by analogy

between the cases and attribute them to the built-in categories. This can be made up till

the process becomes more accurate and more categories can be created. In the next

steps this programme will be able to attribute different facts to many build-in and created

categories automatically, that is to say a simple version of an AI judge. The possibility of

creating an AI judge is obvious, however, the process would require substantial

involvement of lawyers to teach the programme to understand the data and criteria of

determination.

Such an algorithm, according to Bondarenko, should not be totally independent in taking

decisions but rather a tool helping to speed up the process of decision-making. It might

be possible to make automatic decision-making for commercial disputes where facts

usually do not have various patterns and emotions, which for now cannot be digitized

properly.12

What is an Artificial Intelligence? An AI is the “theory and development of computer

systems that learn how to perform ‘cognitive’ functions competently that we intuitively

associate with human minds, such as decision-making, speech recognition and visual

perception”.13

12 Bondarenko, Serhiy (2016). AI as a judge. Senior manager, Consulting Department, Deloitte Ukraine. Kiev. Interviewed by the author in Kiev, Ukraine. 13 Room document for the 38th International Conference on Data Protection and Privacy Commissioners, Artificial Intelligence, Robotics, Privacy and Data Protection. (2016). 1st ed. [ebook] Marrakesh: EUROPEAN DATA PROTECTION SUPERVISOR. Available at: https://edps.europa.eu/sites/edp/files/publication/16-10-19_marrakesh_ai_paper_en.pdf [Accessed 10 Jul. 2017]. Steiner, C. (2012). Automate This: How algorithms came to rule our world. 1st ed. New York: Penguin Group.

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One way to build an AI is using “machine learning approach”, a process when a computer

program is taught to recognise main features of one given set of information and further

apply what it has learned to make predictions about another information. One of the

upgraded versions of machine learning being used to create a computer that “thinks” is

“deep learning”. According to Woodrow Barfield:

“With deep learning, machines teach themselves without human intervention

by crunching large sets of data and then statistically analysing the data looking

for patterns”.14

This means that there are already technologies capable to develop a functioning AI judge

of first generation that will be autonomous from humans, however, the introduction and

use of the concept is complicated due to existing legal regimes. As Kerikmae and Rull

mentioned in their book, the legal theorists are trying to “find out how to balance the rule

of law with the rapidly growing world of tech”.15

In the author’s view, this task is incalculably complex because the exercise is, basically,

the one on how to imbed the law (with all its connections with social norms, philosophy

and politics) that is not an exact science into the operating and fast developing framework

of an exact science. The main issue here is that law is not a formula to be applied directly.

To apply law it must be interpreted. Legal interpretation is going from text to context,

structure, history, goals and policies of law. The statutory language interpretation comes

first, however, if the language is ambiguous is it necessary to examine the statute's

structure and purpose, and then the history of the document creation, which can serve

as a reliable interpretive guide whilst the views of various legislators may differ

significantly among them and also be contradictory to what they say about a statute.16

Judges use all their knowledge (not only from the field of law) and their intuition to decide

on a case, whereas a computer programme applies analogy taking predetermined

examples or recently known information. According to Andrew Arruda, a human is not

capable of remembering everything; at the same time an AI system does not simply

“remember” thousands of examples but also collects them and learns even from

collecting examples.17 Accordingly, does it mean that an AI judge would be able to

outperform people or without intuition and background that a human has it would not be?

This remains questionable.

14 Barfield, W. (2015). Cyber-Humans. 1st ed. Cham: Springer International Publishing, p.86 15 Kerikmae, T. and Rull, A. (2016). The future of law and eTechnologies. 1st ed. Cham: Springer International Publishing, p.1. 16 Engle, E. (2011). Legal Interpretation by Computer: A Survey of Interpretative Rules (posted September 15, 2008). Akron Intellectual Property Journal, [online] 5, p.75. Available at: https://ssrn.com/abstract=1270073 [Accessed 21 Nov. 2016]. 17 In September 2016 at the Clio Cloud Conference Andrew Arruda, CEO and Co-Founder of ROSS Intelligence (a company providing computer services to law companies), delivered a talk called, “Artificial Intelligence and the Law: Science Fiction or Science Fact? - According to him AI is commonly used and can work for law as well, however he cannot say that robots can replace lawyers at present. Interviewed by Knight, F.T. (2016). Artificial Intelligence and the Law: Science Fiction or Science Fact?. Canada’s online legal magazine. [online] Available at: http://www.slaw.ca/2016/11/21/fear-and-machine-learning-ai-and-legal-practice/ [Accessed 7 Apr. 2017].

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1.2. Recent steps in prediction of judicial decisions

“The researchers say that the computer judge isn’t likely to take the place of

judges any time soon. But it could be used to help them out – prioritising

cases that are clearly important or need to be heard”.18- from The

Independent.

In October 2016, many web sites published similar article about the release of a report

on prediction of the decisions of the European Court of Human Rights with the use of

Natural Language Processing (NLP) and Machine Learning (ML) with the average

accuracy of 79%. The authors of the project - scientists from the UK and the US - were

investigating the potential use of information technology in the field of law.19

"Natural language processing" is the use and ability of systems to process sentences in

a natural language such as English, rather than in a specialised artificial computer

language.20

The authors of the report argue that the text-based predictive system can be a useful tool

for lawyers and judges to identify certain patterns in cases that may lead to certain

outcomes and also to define cases that should be priorities as likely to involve violation

of law. The aim of the research was not a creation of an AI judge, although the results

are essential for further development.

For the analysis the researchers used cases on violation of Article 3 Prohibition of torture,

Article 6 Right to a fair trial, and Article 8 Right to respect for private and family life of the

European convention on human rights.21 The number of such cases and availability of

the decisions were taken into consideration while choosing those particular articles to

test the algorithm.

The judgments have a definite structure that makes them suitable for text-based analysis.

The researchers selected the balanced number of violation/non-violation cases for each

article; all operative provisions were excluded so that the outcome was unknown in each

case. Then at first the features of cases were assigned to negative and positive to train

the model to predict if there was a violation on the basis of such features in the context

of a particular number of cases. Further, the features were divided into types by

relevance to procedure, circumstances of a case, relevant law (applicable to the

situation), facts, law (legal arguments of the parties and reasoning of the court) and to

the topic (more general information contained in a case). Using a special algorithm the

features of other cases were estimated to attribute them to violation or non-violation

18 Griffin, A. (2016). Robot judges could soon be helping with court cases. The Independent - News. [online] Available at: http://www.independent.co.uk/life-style/gadgets-and-tech/news/ai-judge-robot-european-court-of-human-rights-law-verdicts-artificial-intelligence-a7377351.html [Accessed 22 Feb. 2017]. 19 Aletras, N., et al., Predicting judicial decisions of the European court of human rights. 20 Phillips, W. (2006). Introduction to Natural Language Processing - The Mind Project. [online] Mind.ilstu.edu. Available at: http://www.mind.ilstu.edu/curriculum/protothinker/natural_language_processing.php [Accessed 9 Mar. 2017]. 21 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950

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outcome. The lowest prediction rate was for ‘Law’, ‘Procedure’ and ‘Facts’. The two best

performing sections were ‘Circumstances’ and ‘Topics’.

“The consistently more robust predictive accuracy of the `Circumstances'

subsection suggests a strong correlation between the facts of a case, as

these are formulated by the Court in this subsection, and the decisions made

by judges. The relatively lower predictive accuracy of the `Law' subsection

could also be an indicator of the fact that legal reasons and arguments of a

case have a weaker correlation with decisions made by the Court. However,

this last remark should be seriously mitigated since ... many inadmissibility

cases do not contain a separate `Law' subsection”.22

The authors of the report came to a conclusion that in general, the judges in ECtHR when

making decisions on complicated cases pay attention more to non-legal than to legal

reasons. However, this can be attributed to the fact that a case before coming to the

international court such as the ECtHR, passes several instances of courts, which already

determined on the legal reasons and arguments of that case. According to the authors

of the report, further analysis is required to understand if the achieved results could be

generalised to other courts. Only textual information from the decisions was used to

perform the study, thus the authors believe that the study is a good start for further testing

of different data about the case such as applications and briefs submitted by the parties.

The main problem that the searchers faced was the lack of data itself since they did not

have access to other case documents apart from decisions themselves.

The study proves that it is already possible to determine the case outcome with a great

percentage of accuracy and also what patterns and categories of the case information

are more valuable to decide on the case. In the opinion of the author of this paper, if to

combine similar algorithm with a lie detector and system that analyses facial expressions

and body language to determine lie, the future AI judge or a helping tool for human judges

would be hard to deceive.

1.3. The use of robots in information analysis in courts and online

dispute resolution

The use of computers can serve as a diagnostic tool and memory aid, to make the lawyer

consider possible arguments he might not mention. Formalisation of the law by a

computer can also help to unveil weaknesses in theirs or their opponent's arguments.

Thus, an AI can serve practical purposes in law and be a useful tool for courts as well.

In legal practice the computers have been used for the programmed instruction23 and

22 Aletras, N., et al., Predicting judicial decisions of the European court of human rights. 23 Author: in the process of programed instruction one learns or performs tasks without a teacher by means of prearranged and programmed steps to be done one after another.

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automated research (e.g., with such tools as Westlaw, Lexis, or Liga:zakon in Ukraine).

Researchers like Engle already in 2008 considered that:

”Computers can, however, also be used for representing legal decision-making”.24

There are several procedures where a computer programme can be soon used in courts

to deliver justice.

According to the Regulation 861/2007/EC of the European Parliament and of the Council

of 11 July 2007 establishing a European Small Claims Procedure, small cross-border

claims in civil and commercial matters amounting up to 2000 Euro can be filed and

resolved by means of a written procedure, that does not require a physical presence in

court.25

In the US, the state courts also have small claims divisions that are dedicated to deciding

on applications that have a maximum amount and can be filed using a special form

provided on the courts’ websites.26 Small case procedures also exist in Singapore,

Australia, Brazil, Canada, and other jurisdictions. Assuming that small claims are

submitted by a structured application form and are decided under shortened and well-

organised procedures, such claims could be analysed by a computer programme to build

the practice in the first step of court decision making by a machine.

Those small claim proceedings seem to fall out of the scope of the public hearing required

under the Article 6 (1) of the European Convention on Human Rights (the “Convention”).

In order to guarantee the right to a fair trial under Article 6 (1) of the Convention, the court

is to consider if the oral hearing is necessary or it can take place if a party so requests.27

As for the small claim cases, there can be no public hearing.

A computer programme can be used in the preface of proceedings such as to decide on

the admissibility of cases, if the court has jurisdiction, whether all required documents

are submitted with the application, if the costs are paid in a proper way and amount, and

whether the parties are informed in the manner prescribed by the procedure, etc. All

these functions are routine for the judges and court personnel and take much time.

In Ukrainian courts, small questions like correction of mistakes (typos) in court

documents are very common, and a machine can solve them without involving much

time of a judge.

24 Engle, E. (2011). Legal Interpretation by Computer: A Survey of Interpretative Rules (posted September 15, 2008). Akron Intellectual Property Journal, [online] 5, pp.71-93. Available at: https://ssrn.com/abstract=1270073 [Accessed 21 Nov. 2016]. 25 Regulation 861/2007/EC of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, Official Journal of the European Union, L. 199, 1. 26 E.g. see Courts.state.hi.us. (n.d.). Judiciary | Small Claims. [online] Available at: http://www.courts.state.hi.us/self-help/small_claims/small_claims [Accessed 26 Apr. 2017]. 27 Kramer, X. (n.d.). Introduction into the European Small Claims Procedure. 1st ed. [ebook] ERA - Academy of European Law. Available at: https://www.era-comm.eu/EU_Civil_Justice_Training_Modules/kiosk/courses/Small_Claims_Procedure/kiosk/documents/print_module_1.pdf [Accessed 26 Apr. 2017].

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Appointment and dismissal of judges could also be areas of application of a robot. An

appointment procedure based on the analysis performed by more independent and

impartial than people computer programme is unlikely to be biased or influenced by an

executive. A computer programme can also be used for the purposes of promotion and

dismissal of judges in a way that it can estimate their competencies, independence and

impartiality based on provided data about the candidates without external influence.

All these examples make a computer programme a useful tool for courts with a great

potential to make justice more fair, accessible and fast. Nevertheless, several practical

obstacles to the use of AI and computers in courts could be mentioned. First, courts

belong to states, meaning, in most countries the financing of such things as introduction

of automated systems and computer programmes for courts is not a priority. The

implementation of documents automated system in Ukrainian courts, for instance, was

funded by the United States Agency for International Development (USAID) under the

project “Fair justice”.28 Before that, Ukraine could not afford such system. Other less

developed countries also require help. Second, some corrupted authorities and influential

individuals are simply not willing to pass part of their powers over the judiciary to some

independent systems and thus would impede their introduction.

At the same time, in the countries that can afford financing of court systems to become

digital, the reforms have already started. In the UK, for example, according to the Report

of the Ministry of Justice, the courts will be made more flexible, accessible and digitalised

already by 2020. They understand that the English courts are used for the settlement of

international disputes that financially contribute to the system in general. Consequently,

the participation in litigation as well as possibility to deliver evidence online makes the

court even more attractive. The reform includes not only electronic document turnover

among the courts and the police but also filing claims online, witness hearing online to

protect the latest and delivery of decisions online. The reform aims at making the delivery

of justice quicker and more efficient.29 It can be assumed that since the UK scientists are

among the first to build machines, which analyse court decisions and predict the

outcomes, it is the UK that can soon test such things as digital decision-making and AI

judge.

A good example of the use of technology in resolving disputes is the online dispute

resolution (ODR), which is a type of alternative dispute resolution, with the main idea to

resolve disputes online without applying to a court. Many ODR websites and platforms

operate in different countries: most of them are in the USA, also in Europe, Canada,

Australia, and in other states worldwide.30

28 Fair.org.ua. (2017). Project USAID - Fair Justice - Judicial Institutions Capacity Building. [online] Available at: http://www.fair.org.ua/index.php/index/work_single/4 [Accessed 25 Apr. 2017]. 29 Transforming Our Justice System. (2016). 1st ed. [pdf] Ministry of Justice of UK, pp.1-16. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/553261/joint-vision-statement.pdf?_ga=1.104503680.1699005446.1476912463 [Accessed 20 Feb. 2017]. 30 Petrauskas, F. and Kybartienė, E. (2011). Online Dispute Resolution in Consumer Disputes. Jurisprudencija, [online] (18 (3), p.937. Available at: http://www.mruni.eu/en/mokslo_darbai/jurisprudencija/ [Accessed 4 Apr. 2017].

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ODR is famous for its success in resolving consumer disputes. E-commerce is boosting,

and with its expansion worldwide without boundaries, the number of disputes also

increases.

If the value of a claim is very little, it is unlikely that a person would seek for the dispute

resolution whereas the expenditures (time and money) are too high. According to Amy

Schmitz:

"There is no justice for consumers seeking remedies with respect to their small-

dollar online purchases.”31

ODR is cost-efficient and fast, that makes this type of alternative dispute resolution very

popular in consumer disputes settlement.

The eBay’s Resolution Centre deals with the common disputes arising out of purchases

on eBay.32 One of the today’s ODR leaders is the portal Modria.com established in 2011

which provides ODR services to eBay, among others.33

There are other examples of ODR. Cybersettle is an application that facilitates “blind

bidding” online.34 Benoam is an arbitration system for insurance companies created in

Israel that provided access to a high number of documents on the set cases. The

Rechtwijzer platform was set up in 2014 in the Netherlands to resolve landlord-tenant

disputes, debt and divorce, however, is reported to be closed in July 2017 since proved

to be not popular among users.35 The more ambitious (according to its authors) version

of an ODR than the Dutch one is now discussed in England and Wales: the main

advantage is stated to be the approach that the ODR will be linked to the court rather

than be a separated platform.36 This idea goes opposite the nature of ODR that is

alternative to the state courts; nevertheless, the realisation of this idea is left for the

future.

31 Schmitz, A. (2013). Organic Online Dispute Resolution: Resolving “Cramming” Claims as an Example. Banking & Financial Services Policy Report, [online] 32(9), p.1. Available at: http://lawweb.colorado.edu/profiles/pubpdfs/schmitz/CrammingB-FSFinal.pdf [Accessed 4 Apr. 2017]. 32 Louis F. Del Duca, Colin Rule, and Brian Cressman, (2015). Lessons and Best Practices for Designers of Fast Track, Low Value, High Volume Global E-Commerce ODR Systems, 4 Penn. St. J.L. & Int'l Aff. p.248. Available at: h9p://elibrary.law.psu.edu/jlia/vol4/iss1/13/ [Accessed 4 Apr. 2017]. 33 Mania, K. (2015). Online dispute resolution: The future of justice. International Comparative Jurisprudence, 1(1), pp.76-86. 34 Ibid. p. 76. 35 Smith, R. (2017). Rechtwijzer: why online supported dispute resolution is hard to implement | Law, Technology and Access to Justice. [online] Law-tech-a2j.org. Available at: https://law-tech-a2j.org/odr/rechtwijzer-why-online-supported-dispute-resolution-is-hard-to-implement/ [Accessed 10 Jul. 2017]. 36 Cross, M. (2017). Online court won't repeat failure of Dutch model, MoR claims. [online] Law Society Gazette. Available at: https://www.lawgazette.co.uk/practice/online-court-wont-repeat-failure-of-dutch-model-mor-claims/5061641.article [Accessed 10 Jul. 2017].

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The European Union adopted a number of legal acts to regulate alternative dispute

resolution processes including ODR. Those are Regulation on consumer ODR,37 which

“objective is to help consumers and traders resolve their contractual disputes about

online purchases of goods and services out-of-court at a low cost in a simple and fast

way”38, and Directive on consumer ADR “ensuring that consumers can, on a voluntary

basis, submit complaints against traders to entities offering independent, impartial,

transparent, effective, fast and fair alternative dispute resolution procedures”.39

According to the Regulation on consumer ODR it is “not intended to and cannot be

designed to replace court procedures, nor should it deprive consumers or traders of their

rights to seek redress before the courts.”40 Thus the ODR is only a supplementary

instrument to the judicial system in particular areas of disputes, and for that reason, in

the opinion of the author, does not compete with an AI judge concept. At the same time,

if an ODR is implemented linked to a court system it may be the first step to introducing

an AI dispute solving system in courts.

ODR and AI judge concept have some common difficulties in realisation. ODR is hard to

be implemented in developing countries such as Ukraine due to the lack of effectiveness

of the formal judicial systems and the lack of the rule of law. ODR requires governmental

support and amendments to the legal regime.41 Additionally, according to professors

Devanesan and Aresty, there are two other barriers that are preventing ODR: a

“technology barrier” people are yet not used to using technology and entrust it to resolve

real life disputes, and the second is an “alternative dispute resolution barrier” since

people are not used to using alternatives to a court and do not trust alternatives.42 Similar

problems are likely to arise with the introduction of an AI judge concept.

37 Regulation (EU) no 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, Official Journal of the European Union, L 165/1 38 Ec.europa.eu. (2017). Alternative and Online Dispute Resolution (ADR/ODR) - European Commission. [online] Available at: http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/adr-odr/index_en.htm [Accessed 5 Apr. 2017]. 39 Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, Official Journal of the European Union, L 165/63 40 See Regulation on consumer ODR. 41 Smith, R. (2017). Rechtwijzer: why online supported dispute resolution is hard to implement | Law, Technology and Access to Justice. 42 Devanesan, R. and Aresty, J. ODR and Justice, pp.291-292.

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Chapter 2. Regulating AI and robotics

The relationship between people in society and particularly in a state requires the

creation of rules and adherence to such rules for the proper functioning of the society.

With the evolution of industry and technology, new relationships appear and people tend

to regulate those relationships. Ideally regulations are created with intention to promoting

further development; however, the imposition thereof also prevents the free development

of relationship as well as the technology itself.

The regulations on AI and robotics is a relatively new area; however, the high speed of

development of the relationship between individuals with the use of technology or

between people and robots broadens the research scope significantly. The following

Chapter gives a brief overview of the evolution of research in AI law and recent trends in

regulations on robotics.

2.1. Brief history of Artificial Intelligence law

Understanding and techniques of AI and Law developed significantly during the 30 years

after the first International Conference on AI and Law (ICAIL). Data storage is becoming

cheaper, and the constantly growing capacity of computers contributes to this process.

Starting from text digitalisation and moving through predicting of court cases in 2016, we

may face full automation of justice in future.

The very first ICAIL was held in Boston in May 1987 with only five programme committee

members presenting articles mostly dealing with different approaches to conceptual

information retrieval and digitalisation of legal cases enabling the digital searches using

words and phrases to get only a few documents from a text base. ICAIL has become

very important for the development of the field since many key ideas and topics in AI and

Law were first discussed at the conference.43

The number of ICAIL participants grew while it was held in different locations around the

world every two years. Researchers presented their works connected with questions how

to build legal expert systems based on formalised legal rules to make the search and

extraction of information more efficient.

In 1991 in Oxford, the Conference Chair was Richard Susskind. He presented papers

that dealt with different software engineering aspects of legal expert systems,

explanation of legal decisions, argument structures, and the role of arguments in case-

43 Bench-Capon, T., Araszkiewicz, M., Ashley, K., Atkinson, K., Bex, F., Borges, F., Bourcier, D., Bourgine, P., Conrad, J., Francesconi, E., Gordon, T., Governatori, G., Leidner, J., Lewis, D., Loui, R., McCarty, L., Prakken, H., Schilder, F., Schweighofer, E., Thompson, P., Tyrrell, A., Verheij, B., Walton, D. and Wyner, A. (2012). A history of AI and Law in 50 papers: 25 years of the international conference on AI and Law. Artificial Intelligence and Law, 20(3), pp.215-319.

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based reasoning together with the implementation of all those into computation

systems.44

Back in 1993, the Internet was just rising and there were no such search systems as

Google or Altavista easily operating collections of legal text and data. Researchers talked

about formal foundations for new advanced IT applications for lawyers such as mediation

systems, tools for recognition of handwriting and their further use.45

The World Wide Web as a new technology influencing AI and Law was one of the main

topics during the conference in 1997.

In 2003, the topics broadened to discussion of electronic agents, e-government, online

dispute resolution, and tools of effective comparing and harmonisation of legislation in

different languages and between jurisdictions. One of the presented programmes was

intended to identify facts in text and which was thus one step closer to the prediction of

case outcomes from textual descriptions.

On the tenth conference in 2005 in Bologna papers on e-commerce and legal education

were added. Due to a rapid development of the WWW and an increasing number of legal

materials, the question of text summarisation was becoming more substantive and thus

explored by researchers.

“In December 2006, the US Federal Rules of Civil Procedure were

amended to supplement the term ‘‘documents’’ with references to

electronically stored information (ESI), and to establish procedures for

lawyer attention to this data.”46

In 2007, the number of committee members reached 33. From 2009, the researchers’

attention was also brought to e-discovery, privacy in social networks, modelling legal

cases, automatic extraction of useful information and detection of arguments in legal

texts. Research in the field of risk analysis started in 2011 concerning intellectual

property.

The number of topics for research increase many times each year as the technology

develops apace.

2.2. Three laws of robotics and reality Back in 1942, an American author Isaak Asimov first formulated the three laws of robotics

in his book “Runaround”. He introduced the idea that robots should be placed as

subordinate to human beings and such as not to harm people.

44 Ibid. p. 217. 45 Ibid. p. 227. 46 Ibid. p. 298

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“1. A robot may not harm a human being, or, through inaction, allow a human

being to come to harm.

2. A robot must obey the orders given to it by human beings, except where

such orders would conflict with the First Law.

3. A robot must protect its own existence, as long as such protection does

not conflict with the First or Second Law.”47

These three laws influenced the further development of literature, cinematography and

which is important - the reality of robot design. In Science Fiction novels and movies, one

can see that robots usually have a human appearance or a part of it such as voice, look

and even emotions. This appearance contributes to the perception of robots by people

giving them the feeling of reliability on machines as something similar to people. At the

same time, the real ability of robots to act morally and follow the laws of robotics is

doubtful.48

The role of a creator of an artificial life is a fascinating idea that dominates in many stories.

However, robots are presented not only as helping people, becoming their friends and

thus following Asimov’s laws but also neglecting them and destroying humanity such as

in Hollywood’s “Terminator”. As Leenes and Lucivero argued:

“The idea of robots taking over and replacing humanity continues to spark

people’s imagination”.49

In real life technology, creators do not deal with such problems as robots going out of

human control and striving to dominate. The contemporary tasks are e.g. navigation,

obstacle avoidance, precise surgery, recognition of faces, machine translation, writing

and analysing texts. All the named processes mostly represent tools for automation of

different activities performed by people themselves or with the use of machines. As for

now only human mistakes and improper use can lead to causing harm at the stage of a

machine evolution.

The technology progress with a view to the Moore’s law unveils the future with machines

that operate and “think” autonomously thus replacing or even overriding humans in the

completion of different tasks. However, from the history of AI and Law, it is understood

that there are many steps and challenges before this future concept will become reality.

But how far is it from today? As Woodrow Barfield mentions:

“South Korea is also working on a Robotics Ethics Charter that will establish

ground rules and laws for human interaction with robots, setting standards for

robotics users and manufacturers, as well as guidelines on ethical standards

47 Leenes, R. and Lucivero, F. (2014). Laws on Robots, Laws by Robots, Laws in Robots: Regulating Robot Behaviour by Design. Law, Innovation and Technology, 6(2), pp.193-220. 48 Ibid. p. 193. 49 Ibid. p. 193.

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to be programmed into robots to prevent human abuse of robots and vice

versa”.50

Basically, this can be seen as the transformation of Asimov’s laws into reality. The next

step could be creation of a machine that might be able to think and even claim its rights.51

The appearance of new relationship, such as communication with the help of technology,

induce people to create rules to regulate such relationship even before all the aspects

thereof are very well known. Further these rules need to evolve into regulations in order

to have imperative power. They are transmitted into laws of a particular state and become

applied to all persons and processes. Referring to the perspective of having a relationship

with thinking machines in the future in various spheres of our life the better laws and

regulations will be created for use of algorithms, artificial intelligence and cyborgs the

more human beings will be protected.52

The idea of robots to be subordinate to people became one of the most important

requirements for autonomous machines, since they are initially developed to avoid

hurting people in their operational environment.53 This idea influences the drafted

regulations the most.

2.3. Regulations connected with robotics “The technology is never neutral”.54

The technology is closely connected with society and moral principles as it is being

created by people and for people. Technological devices have to respect social and legal

rules while operating in society and considering that nowadays those devices do not have

enough capacity to learn, rules must be designed into them by their creators. Many

researchers focus on the necessity of new laws and norms to be applied to new

technology and on the legal issues that arise due to creation and application of such new

technology. Bibi Van den Berg states that:

“Each new technology evokes new sets of behaviours, new risks and new

practices of use, and hence legal scholars and governing bodies must

investigate whether the use or application of such technologies has

consequences that may fall outside existing legal frameworks”.55

Bibi van den Berg following Lawrence Lessig, Roger Brownsword and Karen Yeung

divides the regulations connected with technology into “regulation of technology” and

50 Barfield, W. (2015). Cyber-Humans. p.231. 51 Ibid. p. 4. 52 Ibid. p. 97. 53 Room document for the 38th International Conference on Data Protection and Privacy Commissioners, Artificial Intelligence, Robotics, Privacy and Data Protection. (2016) 54 Leenes, R. and Lucivero, F., Laws on Robots, p.194. 55 van den Berg, B. (2011). Robots as Tools for Techno-Regulation. Law, Innovation and Technology, 3(2), p.319.

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“regulation through technology”.56 The difference is that the regulation of technology is a

broad topic relating to e.g. data security tools, intellectual property rights in

biotechnologies and use of identity cards bearing personal data. Whereas regulation

through technology, according to van den Berg: “studies the ways in which technologies

can be used as regulatory tools, ie as a means to influence the behaviours of individuals

by implementing regulatory values”.57

Ronald Leenes and Federica Lucivero went further and introduced even four categories

of regulations with regards to robotics.58

First “regulating robot design, production through law" which is basically regulating by

imposing norms and safety standards, such as the Machinery Directive 2006/42/EC, ISO

standard on industrial robots, ISO for robot toys for children and ISO 13482:2014 ”for

requirements and guidelines for the inherently safe design, protective measures, and

information for use of personal care robots”59.

Second “regulating user behaviour through the robot's design", when technology permits

and inhibits activities of the users, e.g. when a cleaning robot shuts off when lifted by a

person.

Third “regulating the effects of robot behaviour through law". Robots do not have legal

rights and obligations and cannot be responsible for the consequences of their acts thus

a human, who is the owner or creator, must be held liable. If one would seek

compensation for the harm, it is necessary to determine the respondent.

Fourth “regulating robot behaviour through code", or better to say through design. Robots

have to comply with social and legal norms that can be achieved through their design

and technical instruments used to create them.

A good example is self-driving vehicles that are capable of navigating in a given

environment following the predetermined task autonomously from humans. Self-driving

cars are probably the most popular among such vehicles.60 It is possible to build in the

basic road rules and teach the robot to understand and estimate the surrounding but to

drive safe and take correct decisions on the road the understanding of social signs, such

as hand waving and eye contact, is also necessary. While driving people sometimes

change the rows without any obvious reasons or violate some rules if the operation of

traffic so requires.61 Participants of the traffic anticipate every driver to be a human and

meeting a robot that does not understand social behaviour on the road might influence

56 Leenes, R. and Lucivero, F., Laws on Robots, p.197. 57 van den Berg, Robots as Tools for Techno-Regulation, p. 320. 58 Here I briefly explain the categories introduced by the authors. Leenes, R. and Lucivero, F., Laws on Robots, p.198 59 Villaronga, E. (2016). ISO 13482:2014 and Its Confusing Categories. Building a Bridge Between Law and Robotics. New Trends in Medical and Service Robots, 39, p.33. Iso.org. (2014). ISO 13482:2014 - Robots and robotic devices -- Safety requirements for personal care robots. [online] Available at: https://www.iso.org/standard/53820.html [Accessed 3 Mar. 2017]. 60 Room document for the 38th International Conference on Data Protection and Privacy Commissioners, Artificial Intelligence, Robotics, Privacy and Data Protection. (2016). 61 Leenes, R. and Lucivero, F., Laws on Robots, p.200, p. 212.

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the participants' acts and lead to negative consequences such as accidents and injuries

as well as further claims against car manufacturers that could humper the evolution of

the whole concept.

Assumedly, if robots connected to the internet drove every car, the factor of social

behaviour would be eliminated. However, now robots need to adhere to all rules on the

road including social norms. It is just one example. Parties in a court also anticipate a

human to be a judge, who can consider the facts correctly, understand the social and

moral background of a dispute or help to minimise possible mistakes in the proceedings.

In their recent work of March 2017, Leenes, Lucivero and others went deeper into the

classification of regulatory challenges. According to them, there are four types of

dilemmas. First one is the law itself, which sometimes results in a chilling effect on the

technology while imposing limitations or lagging behind the technology development

process, due to lengthy procedures in creating regulations.62 Also as according to

Matthew U. Scherer: "a critical weakness of legislatures with respect to regulating

emerging technologies is a relative lack of expertise”.63

The second regulatory dilemma is the balance between stimulating technological

innovations on the market and providing that new technology does not create an

excessive risk to safety and health.64

The social norms build the third question. If a new technology is not welcome with the

public should the regulators stimulate the development or limit such technologies? The

key point is whether the regulations have to follow social norms or change them.

The fourth dilemma is the code or architecture. Social norms and laws give people

discretion if to comply with them or violate. The architecture of technology has “self-

enforcing nature”.65 The legitimacy of limiting powers of technology is under question:

“Legitimacy ultimately comes down to respect for human rights and human dignity.

This requires humans to be able to make choices to behave in the morally right

way. They should do the right things (act morality) for the right reasons (agent

morality). Techno-regulation, due to its ‘perfect’ enforcement, potentially takes

away this moral freedom”.66

In the European Union, these dilemmas are dealt with through adherence to the

overriding principles of dignity, equality and safety laid down in the European Convention

62 Leenes, R., Palmerini, E., Koops, B., Bertolini, A., Salvini, P. and Lucivero, F. (2017). Regulatory challenges of robotics: some guidelines for addressing legal and ethical issues. Law, Innovation and Technology. [online], p.7. Available at: http://dx.doi.org/10.1080/17579961.2017.1304921 [Accessed 31 Mar. 2017]. 63 Scherer, M. (n.d.). Regulating Artificial Intelligence Systems: Risks, Challenges, Competencies, and Strategies. Harvard Journal of Law & Technology, [online] 29(2), p.379. Available at: http://jolt.law.harvard.edu/articles/ [Accessed 3 Mar. 2017]. 64 Leenes, R., et. al, Regulatory challenges of robotics, p.17 65 Ibid. p.26. 66 Ibid. p. 26

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on Human Rights and the EU Charter of Fundamental Rights. In the EU, as Leenes et

al. pointed out:

"… the general concern for protecting fundamental rights and values impresses

common features to innovation processes and scientific advancements, which

have to conform to certain normative standards.”67

The principles give guidance and show priority to innovators, who should adhere to them

while working on their creations, meaning the tool, programme or robot should be

designed to perform actions or withdraw from performance according to the principles.

On the one hand, such imposition of principles throughout the adopted rules and

regulations limits the designers. Although, on the contrary, it stimulates the development

of technology within the framework of fundamental principles that have value to the

society.68 With such approach, society could possibly embrace new technology easier.

Another way of dealing with the said issues would be the use of soft law such as technical

and safety standards, which can apply internationally. Regarding that technology has no

borders, the soft law can be an advantage. Also, as Matthew U. Scherer mentioned, the

policy-making responsibility may be delegated to administrative agencies that:

“…could specialize in the particular industry in need of regulation, staff

themselves with professionals who have prior knowledge of the relevant fields,

and remain independent from the political pressures.”69

The law-making process has already commenced in the EU. On the 27 of January 2017

the Committee on Legal Affairs of the European Parliament released a Report with

recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)),

which purpose was to initiate creation of a generally accepted definition of robot and AI,

to evaluate and analyse from a legal and ethical perspective a number of future European

civil law rules in robotics, including questions of liability, general principles concerning

the development of robotics and artificial intelligence for civil use, safety and

standardization, ethical principles, intellectual property rights, common definition of smart

autonomous robots, etc. Two points are worth mentioning about the report. First, the

International cooperation is strongly encouraged since some foreign jurisdictions, such

as the US, Japan, China and South Korea, are taking regulatory action with respect to

robotics and AI. This is particularly important since technology has no boundaries and

the similar approach in different countries will encourage further use of technology

internationally. Second, Asimov's Laws are regarded as relevant to be directed at ”the

designers, producers and operators of robots, including robots assigned with built-in

autonomy and self-learning, since those laws cannot be converted into machine code”.70

67 Ibid. p. 30 68 Ibid. p. 30 69 Scherer, M. Regulating Artificial Intelligence Systems, p. 381. 70 Europarl.europa.eu. (2017). REPORT with recommendations to the Commission on Civil Law Rules on Robotics - A8-0005/2017. [online] Available at: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A8-2017-0005+0+DOC+XML+V0//EN#title2 [Accessed 7 Apr. 2017].

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The report does not give information about the use of AI directly in courts, but it is likely

that it will guide the further innovation process.

In the fourth Chapter of this paper, the author is discussing possibilities of further actions

of the regulators and what regulations with regards to an AI judge concept might be

relevant. Before however, an overview of factors influencing the concept is needed, and

that is discussed the Chapter 3 below.

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Chapter 3. Human rights provisions and their possible

impact on the concept of AI judge

This Chapter deliberates on the possible impact of human rights provisions such as the

right to a fair trial and its elements on the concept of an AI judge. The target of it is to

show whether the concept complies with a fair trial principle. The requirements to a judge

in different jurisdictions and human behaviour are the factors that question the application

of an AI judge. In this Chapter, some views on such influence are also discussed.

3.1. The right to a fair trial in different jurisdictions The Human Rights Commission of the United Nations adopted the “International Bill of

Human Rights”, which consists of the International Covenant on Civil and Political Rights

(ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR)

and the Universal Declaration of Human Rights (the “Declaration”). They became an ideal

common standard by nations around the world. The Declaration, however, does not have

the force of law.71 Declaration’s article 1072, as well as article 14 of the ICCPR73, contains

almost identical provisions as laid down in the first paragraph of Article 6 of the European

Convention on Human Rights (the “Convention”). In 1791 the Six Amendment of the US

Constitution established common rules for criminally accused persons:

“the accused shall enjoy the right to a speedy and public trial by an impartial

jury of the state and district wherein the crime shall have been committed.”74

The first paragraph of Article 6 of the Convention says:

“In the determination of his civil rights and obligations or of any criminal charge

against him, everyone is entitled to a fair and public hearing within a

reasonable time by an independent and impartial tribunal established by

law.”75

The main elements of the right are:

fair hearing;

71 United for Human Rights. (n.d.). United Nations Universal Declaration, International Covenant: United for Human Rights. [online] Available at: http://www.humanrights.com/what-are-human-rights/international-human-rights-law/international-human-rights-law-continued.html [Accessed 8 Apr. 2017]. 72 Un.org. (1948). Universal Declaration of Human Rights | United Nations. [online] Available at: http://www.un.org/en/universal-declaration-human-rights/ [Accessed 8 Apr. 2017]. 73 Ohchr.org. (1976). International Covenant on Civil and Political Rights. [online] Available at: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx [Accessed 8 Apr. 2017]. 74 National Center for Constitutional Studies. (n.d.). Amendment 6 - Rights of Accused Persons in Criminal Cases - National Center for Constitutional Studies. [online] Available at: https://nccs.net/online-resources/us-constitution/amendments-to-the-us-constitution/the-bill-of-rights-amendments-1-10/amendment-6-rights-of-accused-persons-in-criminal-cases [Accessed 8 Apr. 2017]. 75 Council of Europe, (1950). Convention for the Protection of Human Rights and Fundamental Freedoms. Strasbourg: European Court of Human Rights.

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public hearing;

reasonable time limit;

independency and impartiality of tribunal;

tribunal established by law.

All or most of these features appear to be in other international, supranational and also

national regulatory acts (directly or indirectly). The European Convention on Human

Rights was ratified in many countries and as the international law takes precedence over

national legislation. For example, article 25 of the German Basic Law establishes the

primacy of international law and makes it part of federal law.76 Ukraine ratified the

Convention in 1997. Together with the ECtHR decisions, it is mandatory to be applicable

as a source of international law by the Ukrainian courts.

In the Constitution of Ukraine, the right to a fair trial is presupposed in a number of articles

providing the right to go to a court to protect the constitutional rights and freedoms of a

person and a citizen directly on the basis of the Constitution of Ukraine (art. 8 of the

Constitution) together with guaranteed independence of judges and courts. Article 55 of

the Constitution of Ukraine states:

“Human and citizens' rights and freedoms are protected by the court. Everyone

is guaranteed the right to challenge in court the decisions, actions or omission

of bodies of state power, bodies of local self-government, officials and officers.

Everyone has the right to protect his or her rights and freedoms from violations

and illegal encroachments by any means not prohibited by law.”77

It must be mentioned that according to some national legislation, justice may be delivered

only by competent courts, unless otherwise directly prescribed by law. Article 92 of the

German Basic Law provides for the judicial power to be exercised by the Federal

constitutional court, federal courts and courts of the Lander. In Ukraine justice is delivered

exclusively by courts; creation of special courts is prohibited (articles 124-125 of the

Ukrainian Constitution). In other jurisdictions however military and other special tribunals,

such as military or medical, may exist.

The tribunal must be established by law. As comes from the ECtHR practice, in particular

in Sramek v. Austria case, for the purposes of Article 6 an authority not defined as a court

in a state may nevertheless be considered as “tribunal” because it:

“… comes within the concept of a "tribunal" in the substantive sense of this

expression: its function is to determine matters within its competence on the

basis of rules of law, following proceedings conducted in a prescribed

manner.”78

76 See Article 25, Basic Law for the Federal Republic of Germany. 77 The Constitution of Ukraine, art. 55 78 See para 36, Sramek V. Austria [1984], Application no. 8790/79 (European Court of Human Rights).

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The requirements that have to be further satisfied by such authority are independence;

impartiality; duration of its members’ terms of office; guarantees afforded by its

procedure.79

The fair hearing includes a number of aspects of the due process of the law, such as the

right of access to court, a hearing in the presence of the accused, freedom from self-

incrimination, equality of arms, the right to adversarial proceedings and a reasoned

judgment. 80 Article 6 of the Convention does not directly establish the elements of the

right to a fair trial. It is not immediately obvious from reading only the text of Article 6,

what is a fair trial. The ECtHR introduced the elements the in the cases.81 The author

understands that for the law to be applied correctly to a particular case and especially

when the scope of an article or rule is very broad and vague, the courts’ task is to interpret

the law to fill in “gaps” in order to deliver justice. The function of interpreting laws (as well

as judges do) should be built into a computer.

Observance of a right to a reasoned judgment by an AI judge is doubtful to be easily

achieved at this particular stage of technology development due to the following

uncertainties: reasoning by an AI judge and assessment of the reasoning given by the

courts of previous instances.

Machine reasoning is regarded as: “An integrated set of basic and applied research

programs that enable analysis, understanding and interpretation of uncertain,

incomplete, imprecise and contradictory data, regardless of the source”82 or also as

“algebraically manipulating previously acquired knowledge in order to answer a new

question”.83

“To a human, reasoning about relationships feels intuitive and simple. To an

AI, it’s unfathomably hard”84 – says neuroscientist Shelly Fan.

However, it can change soon according to her latest article. The AI can be of different

types while designed for various tasks – solving logical questions or finding patterns in

databases. Researchers say, the AI sometimes outperform people, especially if different

types of learning and reasoning are combined.85 Such reports give an understanding

79 United Nations, and International Bar Association, (2003). Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (Professional training series; no. 9). 1st ed. United Nations, p.118. 80 Mole, N. and Harby, C. (2006). The right to a fair trial. A guide to the implementation of article 6 of the European Convention on Human Rights. 2nd ed. Belgium: Council of Europe, p.21. 81 Ibid. p. 6. 82 Onr.navy.mil. (2012). Machine Reasoning and Learning - Office of Naval Research. [online] Available at: https://www.onr.navy.mil/en/Media-Center/Fact-Sheets/Machine-Reasoning [Accessed 18 Jul. 2017]. 83 Bottou, L. (2011). From Machine Learning to Machine Reasoning. [online] Arxiv.org. Available at: https://arxiv.org/abs/1102.1808 [Accessed 20 Jul. 2017]. 84 Fan, S. (2017). Machine Reasoning Gets a Boost With This Simple New Algorithm. [online] Singularity Hub. Available at: https://singularityhub.com/2017/07/06/machine-reasoning-gets-a-boost-with-this-simple-new-algorithm/ [Accessed 20 Jul. 2017]. 85 Ibid.

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that AI judge reasoning might be possible in the future. We already have machine

reasoning and learning tools with IBM Systems86 and The Office of Naval Research87.

Article 6 requests domestic courts to give reasons for judgment in civil and criminal

proceedings. A detailed answer to every question raised during a proceeding is not

required from a judge. However, it is fundamental to the outcome of the case that the

court specifies its reasoning in judgment. In Hiro Balani v. Spain88 case the applicant’s

submission was aimed at receiving an exact answer. There was no definite answer given

to the question and, thus, for the ECtHR it was impossible to assess whether the national

court had merely neglected to deal with the issue or whether it wanted to dismiss it; and

if so with what reasoning. Judges were anyway obliged to come to a decision, and they

voted for the violation of Article 6 (1) based on their own reasoning. An AI judge in such

cases where not all the answers are provided openly and extensively by previous courts

would have to “assess” the possible intention and reasoning of judges of those courts.

The problem here is whether it is possible for an AI judge actually to “guess” what could

be the reasoning and whether it is correct since the information is not provided in the

case materials.

According to the ECtHR, the essential “public hearing” element of the right to a fair trial

requires that an oral and open to the public hearing is held, where in criminal cases the

prosecutor and the accused, and in civil cases the parties attend the hearing.89

Derogation is possible on the grounds of morality, public order, and safety, or justified by

other means if e.g. hearing was public in one of the instances.

As the ECtHR stated in Axen v. the Federal Republic of Germany: ”The public character

of proceedings before the judicial bodies referred to in Article 6 (1) protects litigants

against the administration of justice in secret with no public scrutiny; it is also one of the

means whereby confidence in the courts, superior and inferior, can be maintained. By

rendering the administration of justice visible, publicity contributes to the achievement of

the aim of Article 6 (1), namely a fair trial, the guarantee of which is one of the

fundamental principles of any democratic society, within the meaning of the

Convention.”90

Other than in exceptional circumstances, the right to a public hearing under Article 6 (1)

implies a right to an oral hearing at least before one instance. At the same time according

to the ECtHR, civil proceedings on the merits are conducted as a principle in private.91

86 Systemg.research.ibm.com. (2017). IBM System G | Machine Reasoning Toolkit. [online] Available at: http://systemg.research.ibm.com/reasoning.html [Accessed 20 Jul. 2017]. 87 Onr.navy.mil. (2012). Machine Reasoning and Learning. 88 Hiro Balani v. Spain [1994] Application no. 18064/91 (European Court of Human Rights). 89 Ibid. Pp. 38-49 90 Axen v. the Federal Republic of Germany [1983] Application no. 8273/78 (European Court of Human Rights). 91 Mole, N. and Harby, C. The right to a fair trial. A guide to the implementation of article 6 of the European Convention on Human Rights. p 46.

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The applicant can also waive his right to a public hearing.92 Thus in isolation, the element

of publicity does not constitute a total limitation to use an AI judge.

A reasonable time limit within which the total proceeding starting and resulting in the

execution of a decision is determined by the court by assessing the whole case. Such

conditions also can be considered by the court as defined in Buchholz v. the Federal

Republic of Germany93: the complexity of the case, the conduct of the applicant, the

conduct of the judicial and administrative authorities of the State, and what is at stake.

Indeed, an introduction of automated judgement processes should contribute to the

observance of timing and fast decision-making. One of the main disadvantages of the

standard court dispute resolution is timing. Judges are overloaded with the number of

cases and especially administration tasks that can be partially passed to automated

systems already nowadays. The use of computer systems for the pre-litigation phase

and also for typical and rather simple cases would benefit to speed up the process.

To comply with other elements of the “fair trial” right all processes performed by an AI

judge (programme or robot) might be required to be open and understood by parties and

public. Without specialised knowledge in IT by all parties and participants, it seems to be

complicated, because it is hard to explain how an AI works. Even the appeal process can

be possible on totally new procedural grounds, such as there was a mistake in AI judge

software that led to an incorrect decision.

The next part deliberates on the requirements of independence and impartiality.

3.2. Principles of independence and impartiality

In light of independence and impartiality, the use of an AI judge may be both beneficial

and ambiguous.

Independence of courts and judicial bodies is protected by law, especially by state

constitutions as in Germany94 or Ukraine95. Independence and impartiality are usually

considered together. For example, in such situation where a judge was appointed by an

executive, who has connections with one of the parties to a case. The judge may be

considered dependent on that executive and also partial as with regards to the party.

92 Ibid p 48. 93 Buchholz v. the Federal Republic of Germany [1981] Application no. 7759/77 (European Court of Human Rights). 94 See Article 97 of the Federal Constitution, Gesetze-im-internet.de. (1949). Basic Law for the Federal Republic of Germany in the revised version published in the Federal Law Gazette Part III, classification number 100-1, as last amended by Article 1 of the Act of 23 December 2014 (Federal Law Gazette I p. 2438) [online] Available at: https://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html [Accessed 10 Apr. 2017]. 95 See Articles 126, 129 of the Ukrainian Constitution. Text in English: Old.minjust.gov.ua. (2014). The Ministry of justice of Ukraine. [online] Available at: http://old.minjust.gov.ua/section/330 [Accessed 8 Apr. 2017].

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The principal of an independent judiciary comes from the theory of separation of powers

which is common in many countries, where such separation is aimed at prevention from

abuses of power. This means both the judiciary as an institution and also individual

judges must be free in exercising their professional responsibilities without any influence

from executive and legislative bodies as well as other inappropriate sources.96

The ECtHR concluded that a tribunal must be independent of the executive and from the

parties.97 However, the bare fact that a judge is appointed by executive does not

constitute a violation of Article 6 (1) of the Convention for as long as such appointment

is made on the basis of law and a judge is not influenced by such executive in performing

his duties.98

According to the ECtHR, the existence of impartiality is subject to:

i. a subjective test, with regards to the personal conviction and behaviour of a particular

judge, that is, whether the judge held any personal prejudice or bias in a given case; and

ii. an objective test, that is to say by ascertaining whether the tribunal itself and, among

other aspects, its composition, offered sufficient guarantees to exclude any legitimate

doubt in respect of its impartiality.99

A breach of impartiality in some cases can be considered independent from the breach

of independence principle. It may appear when one judicial body exercises both advisory

and judicial functions that may raise a question under Article 6 (1), in certain

circumstances, as regards the impartiality from the objective point of view. However, such

factors as the judge’s dual role in the proceedings, the time which elapsed between the

two rounds of participation and the volume of his involvement in the proceedings may be

taken into consideration in estimating the breach of impartiality.

The UN Basic Principles on the Independence of the Judiciary (1985) are used by the

member states as a base in assessing the independence of the judiciary. It obliges the

states to guarantee independence to the judiciary in law and provide adequate resources

to enable the judiciary to perform its functions properly.100 Nevertheless, the judiciary is

faced with a number of challenges, especially connected with independence, such as

during the appointment, promotion and dismissal, remuneration and pressure and even

threats from both – state and individuals. An AI judge is unlikely to be subject to such

challenges because there is no promotion or remuneration possible. Appointment or

dismissal has no personal component other than that connected with creators –designers

96 Ibid. p. 115. 97 See para 78, Campbell and Fell v. the United Kingdom [1984] Application no. 7819/77; 7878/77 (European Court of Human Rights). 98 Council of Europe/ European Court of Human Rights, (2013). Guide on Article 6 of the Convention – Right to a fair trial (civil limb). [online] Council of Europe. Available at: http://www.echr.coe.int [Accessed 10 Apr. 2017]. 99 Council of Europe/ European Court of Human Rights, Guide on Article 6 of the Convention, p. 29 100 United Nations and the Rule of Law. (n.d.). Basic Principles on the Independence of the Judiciary - United Nations and the Rule of Law. [online] Available at: https://www.un.org/ruleoflaw/blog/document/basic-principles-on-the-independence-of-the-judiciary/ [Accessed 12 Apr. 2017].

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and lawyers. Threat and pressure can only address the authors or supervisors of an AI

judge but not the robot or programme itself. Thus, some of the challenges facing human

judges are eliminated or becoming secondary. Nevertheless, some new challenges can

be created in the field of technology such as hacking or fraudulent use.

In light of impartiality and independence, the use of AI as a judge is also connected with

the next issues.

First, if lawyers, judges or even parties were involved in creation, adjustment or

“teaching” of an AI judge would there be a problem of independence and impartiality if

such AI judge would participate in assessing his creators’ and teachers’ decisions or

decide on a case connected with them?

Second, would there be an issue of impartiality if an AI judge (since it is the same

programme using one database of cases and which is not different people) is exercising

both advisory and judicial functions in proceedings?

Third, can one AI judge assess another AI judge, if they have joint creators, or participate

in following instances?

An answer can be given only by evaluating these issues through the prism of the nature

of AI and also practical implementation and testing since it is yet unknown how an AI

judge would “behave” when confronted with such cases, and whether such behaviour

would be in accordance with the principles. As a safeguard, the author suggests here

that a particular AI judge should be used only on one level of decision-making e.g. in the

first instance, and in one function – judicial or advisory.

3.3. Fair trial by robots and compliance with procedural guarantees

In addition to the principles under Article 6 (1) of the Convention discussed before, there

are other procedural guarantees not directly stated in the Article 6 itself that the parties

enjoy.

The right to adversarial proceedings gives parties in criminal and civil proceedings an

opportunity to review the case document and information and provide their comments on

all evidence or observations, in order to influence the court decision. The parties to the

proceedings have the right to present the observations, which they regard as relevant to

their case.

The equality of arms between the parties, between prosecution and defence, is a

fundamental aspect of the right to a fair trial. The equality of arms provides for each party

an opportunity to present his/her case and evidence under conditions that do not place

him/her at a substantial disadvantage vis-à-vis the other party.101

101 Council of Europe/ European Court of Human Rights, Guide on Article 6 of the Convention, p. 42.

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National courts are called to perform the administration of evidence, and within this

process, they have to assess the evidence provided by the parties and decide on their

admissibility as a first step. This can be an additional task for designers of AI judge to

teach the machine to estimate evidence and decide whether they are relevant to a

particular case and whether the evidence is presented in such a way as to ensure the

fair trial.

The reasoning of the decision made by juries is an issue in many criminal proceedings,

whereas juries do not tend to give reasoned verdicts, as the Convention does not put

such an obligation on juries.102 Article 6 of the Convention requires “an assessment of

whether sufficient safeguards were in place to avoid any risk of arbitrariness and to

enable the accused to understand the reasons for his conviction”.103 A task of a judge

here is to direct or instruct the juries on the legal issues and the presented evidence in

the case. For this, a judge may ask guiding questions to formulate the verdict. An AI

judge should be capable of understanding when and what to ask to guide and not

manipulate the juries.

To make a decision a judge has to assess the materials and information of a case.

However, it is just a part of his duties and tasks in the process of delivering justice. Like

other officials, judges are called to ensure the rule of law. The judges in the framework

of their duties initiate the use of force or threat to use force. They oversee the legal

proceedings, maintain order during hearings, impose penalties, award damages, grant

injunctions, sentence to prison or community service, arrest property, etc.104 A judge has

to interact with the parties, witnesses, experts and juries, evaluate the relevance of

received evidence, influence the parties’ behaviour to ensure the due process and

prevent abuse of rights, apply sanctions if required, give reasoning to his actions and

decisions and execute a number other tasks and competencies. A computer programme

or a robot is to be capable of performing all these tasks to replace a human judge.

Another factor that should also be taken into consideration by the designers of an AI

judge is the essential differences between common law and civil law systems relevant

for the process of creation and teaching. Under the concept of the common law, the rights

and obligations are determined in cases decided by the court and put into the court

sentence, and thus they are not given by the law. The juries are called to ensure justice,

meaning that a judge is not the only person who knows what is just. Jury and judge

together decide who is right in a case. From the perspective of the continental view, the

rights and obligations are prescribed by laws, regulations and statutes, and solely courts

are called to apply the law.105

102 Council of Europe/ European Court of Human Rights (2014). Guide on Article 6 of the Convention – Right to a fair trial (criminal limb). [online] Council of Europe. Available at: http://www.echr.coe.int [Accessed 10 Apr. 2017]. 103 Ibid. p.23. 104 Brand-Ballard, J. (2010). Limits of legality. 1st ed. New York: Oxford University Press, p. 27. 105 Fleiner, T. (2005). 1st ed. [ebook] Fribourg: Institute of Federalism, pp.10-27. Available at: http://www.thomasfleiner.ch/files/documents/legalsystems_fulltext_final.pdf [Accessed 26 Apr. 2017].

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In Ukraine, one of the procedural requirements in civil and commercial proceedings is

that a court cannot go beyond the framework of the application of a claimant. An appeal

instance does not accept new evidence and cassation looks only on wrong application

of the law. Every court has its jurisdiction and limitations within which a case is assessed.

The basic requirements as to such limitations are, in the view of the author, easy to be

introduced in a computer programme. But what if the situation requires a court to make

a decision about more general and important things beyond the request of an applicant?

Such as in case Volkov v Ukraine heard by the ECtHR106. In that case not only the

wrongful dismissal of a judge was found a violation of Article 6 (1) of the Convention, but

the Court also noted that the case disclosed the ”serious systemic problems as regards

the functioning of the Ukrainian judiciary”, the system of judicial discipline “does not

ensure the sufficient separation of the judiciary from other branches of State power”, and

“does not provide appropriate guarantees against abuse and misuse of disciplinary

measures to the detriment of judicial independence”.

The ECtHR obliged the State to take a number of general measures aimed at reforming

the system of judicial discipline, i.e. ”legislative reform involving the restructuring of the

institutional basis of the system”. In the Court’s opinion, the measures to be taken should

also “entail the development of appropriate forms and principles of coherent application

of domestic law”. The Court saw deeper problems than just a wrongful dismissal of a

sole judge and underlined that violations existed even on the level of the Ukrainian

Parliament. Is it possible for an AI judge to come to similar results in assessing cases

and go beyond the request of the applicant? In particular cases such actions are essential

to maintaining the rule of law.

For Ukraine, this case has a fundamental meaning whereas the ECtHR directly pointed

out that legislative reform is required for the whole country. It has been done not easily,

however, the reform has started and hopefully would give positive results in rebuilding

the justice system of the country.

According to the EctHR, its judgments do not only aim at deciding the cases but, “more

generally, to elucidate, safeguard and develop the rules instituted by the Convention,

thereby contributing to the observance by the States of the engagements undertaken”.107

Such broader task of the ECtHR, as well as possibly similar tasks of other courts, are to

be taken into consideration by an AI judge designers.

3.4. Requirements for a judge Every person currently assumes that a judge is a person with particular knowledge and

expertise, appointed to deliver justice and to represent judicial power in a state. This is

apparently the basic understanding in most of the countries in the world. As a human, a

judge has feelings and intuition. What should be introduced in society to change this

106 Volkov v. Ukraine [2013], Application no 21722/11 (European Court of Human Rights). 107 Council of Europe/ European Court of Human Rights, Guide on Article 6 of the Convention, p. 5.

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understanding built by centuries? In the author’s opinion, society accepts changes easier

if they show to be fair, beneficial, necessary and cost-efficient. In addition, they should

be introduced in the right place and time. After the introduction of the changes in more

developed countries, they could be taken over by less developed countries. For

fundamental changes such as in the sphere of justice, appropriate regulations on

international and national levels are required.

In the German Basic Law or the Ukrainian Constitution, a judge is not directly referred to

as a “person”. However, the provisions of the appointment, remuneration, dismissal (e.g.

with regards to his death), rights and obligations – provide for a judge to have legal

personality. Article 52 of the Law of Ukraine “On the judicial system and status of judges”

stipulates that a judge must be a citizen of Ukraine.108 There are other requirements as

to the education and professional experience in Ukraine and other jurisdictions.

The UN Basic Principles on the Independence of the Judiciary (1985) directly define

judges as “persons” and “individuals of integrity and ability with appropriate training or

qualifications in law”. A requirement that “a candidate for judicial office must be a national

of the country concerned, shall not be considered discriminatory” is introduces by the

document.109

A computer programme simply cannot meet those requirements. This creates an

obstacle to calling an AI judge basically “a judge” in the framework of constitutional law

and other special rules about creation or functioning of courts in a state.

There is one more essential element that is required to be complied with by a judge,

which is not always laid down in the form of law but rather a regulation or a code of

conduct.

“Complying with ethical requirements is an essential duty of a judge that

derives from his constitutional and legal status. Judicial ethics, based on

universal moral imperatives, are efficient internal corporate mechanism to

ensure judicial accountability to the civil society.”110

Many US courts, for instance, use their own codes of judicial ethics in line with the Code

of Conduct for United States Judges, which, inter alia, says: “a judge should be patient,

dignified, respectful, and courteous to litigants, jurors, witnesses, lawyers, and others

with whom the judge deals in an official capacity”.111

108 Verkhovna Rada of Ukraine, (2016). The Law of Ukraine "On the judicial system and status of judges". Kyiv, (translation and interpretation made by the author). 109 United Nations and the Rule of Law. Basic Principles on the Independence of the Judiciary. 110 Ovcharenko, O. (2016). Judicial Ethics from Around the World: Roles, Responsibilities and Unique Challenges. In: International Legal Ethics Conference VII. [online] New York: Fordham University. Available at: https://www.fordham.edu/info/25017/rule_of_law_and_the_legal_profession/8760/judicial_ethics_from_around_the_world_roles_responsibilities_and_unique_challenges [Accessed 13 Apr. 2017]. 111 United States Courts. (2014). Code of Conduct for United States Judges. [online] Available at: http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges [Accessed 13 Apr. 2017].

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The Code of Conduct for United States Judges, Statements of principles of Judicial

Ethics for the Scottish Judiciary, Judicial Ethics Principles, Values and Qualities by the

European Network of Councils for the Judiciary – all are basically comprised of similar

requirements as to:

Independence

Impartiality

Propriety

Equality

Integrity

Competence and diligence

In the various national and international codes of conduct for judges, we can also find

requirements as to respect, the ability to listen, honour, wisdom, loyalty, humanity and

political neutrality.

The basic requirements given above are common on the international level. As an

example one can have a look at the Bangalore Principles of Judicial Conduct prepared

by the United Nations, where the reference was made to several existing codes and

international instruments in total number – 32112, making it a universal code for many

countries.

The question that may arise with regards to the judicial ethics principles is whether an AI

judge would be able to comply with those principles or whether alternative principles for

AI legal ethics should be created and adopted. Again here AI researchers and lawyers

must assess both variants from the point of view of theory and practice which way is the

most appropriate and achievable.

Many books and articles are written with regards to robot-ethics. Quite many articles

discuss the suitability of tasks for robots such as medical treatment (e.g. surgery,

regenerative medicine), robotic enhancement, and robotic care for children or seniors,

self-driving cars, robot-companions for people and animals, and robots as sex-toys.

According to Wendell Wallach, some social and moral theorists find such performance

of human tasks by robots offensive and reflecting badly on modern society.113 Is judging

an appropriate task for a robot? Can an AI judge act like a human judge? To “act”

according to Trappl means “to select from all possible actions the appropriate one”114

and in the case of a judge also in accordance with particular laws, regulations and

established ethical principles.

112 United Nations and the Rule of Law. (2002). The Bangalore Principles of Judicial Conduct - United Nations and the Rule of Law. [online] Available at: https://www.un.org/ruleoflaw/blog/document/the-bangalore-principles-of-judicial-conduct/ [Accessed 13 Apr. 2017]. 113 Wallach, W. (2011). From Robots to Techno Sapiens: Ethics, Law and Public Policy in the Development of Robotics and Neurotechnologies. Law, Innovation and Technology, 3(2), pp.192-193. 114 Trappl, R. (2015). A Construction Manual for Robots' Ethical Systems. 1st ed. Cham: Springer International Publishing. p. 3

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While making such actions by an AI judge possible designers would face two complex

problems. At first, it is complicated to find a computational method to implement laws,

rules, principles or procedures for making ethical and moral judgements. Second, there

is a group of related challenges such as recognition of an ethically important situation,

differentiation between essential and inessential information, estimation of the sufficiency

of initial information.115 Wendell Wallah put a key question:

“How would the system recognise that it had applied all necessary

considerations to the challenge at hand or completed its determination of the

appropriate action to take?”116

To build-in the principles of honour, wisdom, loyalty and humanity, many situations

experienced by different people should be installed for the computer system to learn and

apply that experience to the task it was attributed. However, to what extent were those

provided situations ethical? What would be the computer system application of the

received knowledge to new situations? When an ethical component of a decision is

estimated by people, it may also have some percentage of subjective attitude. Can a

machine have its subjective attitude? It is hard to say for now whether an AI judge would

be entirely fair and independent in its decisions. To get answers to the questions a

comprehensive testing is required.

Recently such companies as Google, Apple, Samsung and other well-known giants and

even small start-ups started producing and testing self-driving cars.117 Such testing does

not end up with following the road rules. It is also about the behaviour and decisions of

the vehicles in one or another situation on the road. The platform Moral Machines, for

example, gathers people’s opinions on how the machine should act in a particularly

dangerous situation and which of two evils to pick – to hit pedestrians or kill passengers.

People give different answers themselves based on their subjective attitude to a

hypothetical presented situation.118 Testing is essential to understand whether a machine

is allowed to have the discretion to follow one of the predetermined by people scenarios

or made any autonomous decision in an unknown situation. The example with self-driving

cars is not far from the situation with decision-making by an AI. An AI judge must decide

if a person is subject to punishment or there is no justice for the victim. Testing is

necessary to make a conclusion if an AI judge decision is fair according to the principles

applicable to a current human decision-making process.

3.5. Human behaviour and deviation from law in decision- making

115 Wallach, W. From Robots to Techno Sapiens. p. 200. 116 Wallach, W. From Robots to Techno Sapiens. p. 200. 117 CB Insights Research. (2017). 44 Corporations Working On Autonomous Vehicles. [online] Available at: https://www.cbinsights.com/research/autonomous-driverless-vehicles-corporations-list/ [Accessed 23 Jul. 2017]. 118 Moral Machine. (2017). Moral Machine. [online] Available at: http://moralmachine.mit.edu/ [Accessed 10 Jul. 2017].

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It is hard to believe now that AI would ever replace human judges. A recent case (closed

proceedings) introduced in Egypt provides with a good example to prove that blindly

following the law is not always the best way to deliver justice. The details of the case

were explained by an Egyptian prosecutor, who disagrees with the idea of entrusting

justice to machines.119 His story was as follows.

Once a girl was captured by a group of three men who took her to a waggon, raped her

and stole her money. She survived and went to the police to report the accident. The

police officer decided to act urgently. Without receiving any procedural documents and

transcending his powers, he found the waggon in another region in a garage, collected

information from people working in the same garage, entered the houses of the suspects,

gathered evidence and arrested them without getting a warrant.

The prosecution filed the case before the criminal court of Egypt, regardless of all that

procedurals violations. The court sentenced them to a death penalty. The defendants

appealed the judgment based on these procedurals errors. The case went up to the court

of cassation, which finally notwithstanding the violation of procedural requirements by

the police found the suspects guilty. In addition the accused eventually even confessed.

It is worth mentioning that, under the Egyptian penal code Article 267, if a man is

convicted of raping a woman he can face life imprisonment, on one hand, the judge can

reduce that sentence to simple imprisonment depending on the case itself, and on the

other hand, Article 290 of the Egyptian penal code allows the judge if the felon had not

just raped the victim but that raping was associated with kidnapping and armed robbery

a felon then can face up to a death penalty. The law gives a wide discretionary power to

both judges and prosecutors in determining penalties and whether to file the case before

a court or not.

‘”If we tried this case by an AI and applied the laws rigidly and strictly without

putting judge’s discretion into consideration, it wouldn’t even pass the first

degree not to mention the devastating impact on victims and their loved

ones. The prosecution even wouldn’t have filed the case in the first place

because of the number of procedural errors leading to inadmissibility.”120

An AI judge would probably prevent a decision against the rules of law and thus the final

decision could not be correct and just in respect of the victim. The main argument

provided here was that a robot has no feelings nor emotions to act in a fair way.121

Human nature of judges and parties (representatives) and real situations, which appear

to be untested under the rule of law, influence the final decisions taken in courts. A judge

is expected to take a right decision and apply law and precedents. However, deviation

from the rule of law appears due to various reasons. Results are achieved with the

influence of many different factors. A decision may be incorrect because of negligence

119 Elaiat, Khaled. (2017). AI as a judge. Public prosecutor. Prosecutor office of Egypt, Cairo. Interviewed by the author at Ghent University. 120 Ibid. 121 Ibid.

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and incompetence of a judge. The corrupt judges receive financial or other personal

benefits from taking decisions in favour of one of the parties or a third person.

Notwithstanding that the judges are mostly required to be politically neutral, political

pressure and personal political preferences can vastly contribute to a final result of a

case. Avoidance of conflict of interest is not always obeyed: a judge may take a decision

in favour of a relative or a friend. Personal views on situations brought before a court also

influence a judge’s reasoning and decisions. An ambiguous law provision may make a

judge deviate innocently because a legislator simply made a provision hard to

understand and apply to real situations. A judge can be just in bad mental or physical

condition during a hearing or while making a decision that could have a considerable

impact on the results of a case.122 Deviation from the law in decision making is not always

illegal. Invalidation of law is legally authorised if a law goes in conflict with a constitution,

so can be found unconstitutional.

What if a judge is very religious or opposite – atheistic? These views may influence his

or her decisions and reasoning as being part of life and general views. Does it always

result in a negative way on the results of his or her activity as a judge?

Deviation or rather a derogation can be authorised if justified by a higher objective. There

are many examples in the practice of the Court of Justice of the European Union (ECJ)

when the Court found it justified to apply limitations of rights against the EU law. In some

of them, the Court was not only looking at generally accepted principles but went further.

For instance in the case of Omega Spielhallen.123

Omega GmbH in Germany was prohibited from setting up a “laserdrome”, where people

were “playing at killing” others with fake laser guns. Omega claimed that such prohibition

is an unlawful restriction on free movement of services being a fundamental freedom

within the European Community. However, the Bonn government was convinced that

police authorities may block activities constituting a risk to public order or safety in special

cases.

The German Federal Administrative Court held that banning the game was compatible

with the German Basic Law article 1(1) on human dignity - fundamental values protected

by the German constitution. It seems that restriction of fundamental freedoms protected

by the EU law can be hardly justified by a national concept like human dignity, which is

a rather vague notion, but the ECJ’s decision in this particular case was in favour of the

government.

“Measures which restrict the freedom to provide services may be justified on

public policy grounds only if they are necessary for the protection of the

122 See more about deviation and reasoning in Brand-Ballard, J. (2010). Limits of legality. 1st ed. New York: Oxford University Press, pp.1-55. 123 Omega Spielhallen und Automatenaufstellungs-GmbH v Oberbürgermeisterin der Bundesstadt Bonn [2004]C-36/02 (Court of Justice of the European Union).

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interests which they are intended to guarantee and only in so far as those

objectives cannot be attained by less restrictive measures.”124

In other ECJ cases, the same justification ground of public policy was invoked. Here the

court went deeper, taking in account historical background of the particular Member

State. The reasoning was not based on the general fundamental principle, but on a

specific national concept not shared by any other Member State.

Assuming that an AI judge is created and introduced into a judiciary system, does it mean

that all the above mentioned negative deviation would be eliminated? If yes, that may

also lead to the elimination of deviation necessary to be made on the grounds of

fundamental principles such as public policy or in the case that took place in Egypt. Is it

possible for a computer program to decide correctly that deviation from law or practice is

necessary and justified? Bearing in mind that an AI judge is a kind of “collective judge”,

whose knowledge comes from many decisions and judges, does it mean that such AI

judge is fairer if it has no preferences but makes a sort of “collective” decision without

adding its own attitude? The real necessity and balance of interests are two notions that

are hard to assess even having all required facts obvious and disclosed. It is another

ambitious task for researchers to find out how to teach a machine not to follow the law

without deviation to reach a necessary and balanced decision.

124 Ibid. para 36.

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Chapter 4 Recommendations an further research The purpose of this Chapter is to provide recommendations as to possible amendments

required in the existing regulations to start the employment of an AI judge as well as

some safeguards to comply with the right to a fair trial. Some further related research

directions are also discussed herein.

4.1. Recommendations: possible transformation and adaptation of

laws, and general safeguards In 1996, at the conference about the Law of Cyberspace, Judge Frank Easterbrook

shared his view that a “law of cyberspace” was not more than a “Law of the Horse”.125 In

brief, the “Law of the Horse” means there is no need for such rules as to sell a horse

when general rules are regulating the sale of any other things. As the Judge said:

“I don't know much about cyberspace; what I do know will be outdated in five

years (if not five months!); and my predictions about the direction of change

are worthless, making any effort to tailor the law to the subject futile.”126

He compared computers with a mutating virus that lawyers do not completely

understand127 to regulate in a proper way, thus, in the Judge’s opinion, it was better not

to match law to the Internet but develop the general norms to regulate the issues

connected with it.128

Lawrence Lessig, according to himself, was among other researchers that could not

agree with such view.129 Regulations depend among other things on the architecture of

what is being regulated. Some examples of the real space architecture are that buildings

are immovable and children look like children. The architecture or rather code of the

cyberspace is different. One cannot simply identify a child in the cyberspace and there

are no buildings. The law in general, as Lessig said, orders individuals (directly or

indirectly) to behave in a certain way and provides for ex-post punishment for non-

compliance. He suggested that in cyberspace it was better to regulate not individual

behaviour but the architecture or code of the cyberspace and the institutions that write

the codes in order to prevent unlawful behaviour. Cyberspace induces the establishment

of the new values different from those of the real space.130 This gives the author an

understanding that current legal regime needs adaptation to the new values and the new

space.

125 Easterbrook, F. (1996). Cyberspace and the Law of the Horse. University of Chicago Legal Forum, 207, p.207. 126 Ibid. p. 208. 127 Ibid. p. 210. 128 Ibid. p. 207-216. 129 Lessig, L. (1999). The Law of the Horse: What Cyberlaw Might Teach. Harvard Law Review, 113(2), p.502. 130 Ibid. 501-546.

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Might the regulations for an AI judge be not more than a “Law of the Horse”? There are

already many regulations as well as case-law and principles on judicial, human rights,

and procedural guarantees. The author of this paper agrees with Judge Easterbrook that

the general rules must be developed. However, they should be also amended with

consideration to allow new spaces and concepts, because it is inevitable that those

becoming more and more important and build part of reality nowadays. At the same time,

new regulations are also required for the emerging technologies and concepts since the

existing laws are not always capable of addressing questions connected with such new

technologies.

To conclude what was discussed in this paper and also following Lessig, it is understood

that the architecture of AI should be grounded on the overarching principles.

As according to Leenes, technology should not be the target of regulation itself. It seems

that regulation should be technology-neutral to prevent it being outpaced by

technology.131 The prime challenge for the regulators is to identify the problems and

challenges to be addressed:

“This requires not only looking at the effects of a particular robotic technology

on society and its potential regulatory disconnect, but also careful value

elicitation, considering not only the social and material values at stake, but also

the affective embodied context in which robots operate.”132

At the same time, neutrality of regulations leads to potentially less legal certainty that

could be given by technology specific regulations.133 The regulators have to strike a

balance between neutrality of regulations and targeted approach to particular technology.

As an example, the EU regulations on ODR and ADR address the problems raised within

the consumer disputes and not only the ODR existence and operation in general.

Accordingly the laws regulating an AI judge should not address the existence and

operation of the concept only but the problems evolving in court systems that can be

solved by using AI. Such could be overload at courts, timing, bias, extensive data bases

to be assessed as evidence, residence of parties in distant places, etc.

Additionally, the regulators must find the right time to intervene: not too late and not too

early. The regulators need to adapt to the dynamics of the field for the regulations to be

faster and interactive. Taking into account the complexity of the field, the regulatory

process should involve more stakeholders: apart from state and business, there should

be also interest groups, professional bodies and industry associations.134

As was mentioned before, the introduction of AI, computer programmes and robots leads

to the development of various regulation types. Hard to disagree with Koops and Pirni

that:

131 Leenes, R., et. al, Regulatory challenges of robotics, pp.42-44 132 Ibid p. 42. 133 Ibid p. 42. 134 Ibid p. 43.

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“Emerging technologies often pose ‘hard cases’ that have no immediate

analogies in the past.”135

That is why it requires constant research targeted at unveiling areas for regulation and

better ways to do it.

First, it is suggested to made amendments to constitutional law and international rules

by adding that justice can be delivered with the use of technology according to specific

regulations.

Second, the new regulations and related amendments and additional rules are required

to enable the introduction of an AI judge in courts. The scope of the new regulations

could be the following. At the prime stage an AI could be used as a helping tool in courts

for collecting and assessing the data. This is already done by Luminance and Ross

Intelligence in the private sector for lawyers. The public sector could also benefit from

existing technologies. Regulations on the possibility and process of use of such tools are

required. Next, similar to ODR regulations, rules on automatic decision-making could be

introduced in courts regarding the particular types of claims, such as the consumer

protection, small-amount and standardised claims. The practical use of such technology

could show its effectiveness and whether more types of disputes can be decided

automatically by computers.

A set of possible safeguards can be of use here as well. An AI judge as automatic

decision-making tool should be involved only on one of the stages of proceedings, thus,

the challenging of a decision by a computer would be before a human judge and vice

versa. An AI judge should not be engaged at the very final stage, which is no-appealable.

Only human judge not involved in the creation of the particular AI judge should assist

decisions made by that AI judge. Intermediate checks should be performed during the

whole process. They are especially relevant at the pilot stages to assure the correct

performance of the tasks of a judge by an AI.

The author does not deny that with the introduction of an AI judge new principles of fair

justice could replace the existing ones, for instance, a decision would be considered fair

if only made by an unbiased machine.

4.2. Artificial intelligence and justice: further suggested research

directions There is still much to research in the correlation between legal norms and technical

requirements. Safety, legal, social and ethical norms are to be implemented by robots

135 Koops, B. and Pirni, A. (2013). Ethical and Legal Aspects of Enhancing Human Capabilities through Robotics, Preliminary Considerations. Law, Innovation and Technology, [online] (5 (2), p.145. Available at: http://dx.doi.org/10.5235/17579961.5.2.141 [Accessed 10 Mar. 2017].

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before they can become independent. The very idea of putting the norms in codes is

ambitious.

Among other possible questions that are relevant to the topic of this paper, the author

would like to name a list of closely connected directions of research, which could further

continue the discussion raised herein.

Liability and legal status of an AI judge

Legal theorists address the question of possible legal rights granted to robots, discussing

whether they should be given legal personality and whether they could bear responsibility

for their own choices and actions.136

From a legal perspective, robots cannot have any rights and obligations as they do not

have personality. Actions robot perform are not legal acts as they are just tools used by

human beings that are legally responsible for the robot’s actions. The owner (permanent

or accidental) of a robot must ensure the operation of a robot in the limits provided by the

law.137

If there is no personality, it means there is no liability. Different papers discus also liability

of robots. In connection with the topic of this paper, it is relevant to research whether an

AI judge can have any robot-personality and who should be responsible for decisions

taken by it.

AI judge and adherence to the ethical principles

The creation of new technologies and adaptation of regulations may not be always

positively accepted in terms of ethics and public policy.138

Robot ethics is a developing interdisciplinary research aiming at understanding the

ethical implications and consequences of technology and autonomous robots. The

evolution and implementation of robotic technology in society motivate researchers,

theorists, and scholars from various fields such as robotics, computer

science, psychology, law, philosophy, etc., to address ethical arising questions. The most

sensitive and highly discussed areas are those where robots interact with humans, such

as caring and medical robots, and robots for military missions.139

In the author’s opinion, an automatic dispute resolution by an AI judge is a sensitive area

as well. It should be under attention since the decisions by an AI judge are to influence

people’s rights and obligations. To what extent such decisions could be taken with

adherence to the ethical principles?

Assessment of evidence and witness hearing by an AI judge

136 Barfield, W. (2015). Cyber-Humans. p.18. 137 Leenes, R. and Lucivero, F., Laws on Robots, p.206 138 Ibid. 139 Ieee-ras.org. (2017). Robot Ethics - IEEE Robotics and Automation Society. [online] Available at: http://www.ieee-ras.org/robot-ethics [Accessed 20 Jul. 2017].

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The report by Aletras et al. described in Chapter 1 of this paper was based on the texts

of the court decisions. As the researchers mentioned, an AI could also try to assess

applications and briefs of the parties. What legal basis is required for the use of such

assessment or witness hearing in courts? Could the process by an AI respect the current

procedural guarantees or should they be amended? It is still under question how the

assessment of evidence and witness hearing could be realised in practice.

AI judge in different types of proceedings

Commercial law is not that much connected with emotions, mental state, and personal

motives of individuals as criminal law and family law. Various types and directions of

litigation presumably require different types of AI to resolve disputes. The author

considers relevant to explore what types of litigation an AI judge concept could be

applicable and what obstacles exist in each type of proceedings preventing such

application.

AI judge and ODR – governmental support

As was already mentioned in Chapter 1 hereof, ODR and an AI judge concept have some

common issues. One of them is essentiality of governmental support. For an AI judge

concept further evolution such support is required already at the stage of research. The

report on the prediction of court decisions named limited access to court materials as

one being a real obstacle to further research. To what extent and in what forms the

governmental support and interference are necessary for further development of an AI

judge concept could be the next questions to explore.

Challenging, recognition and enforcement of decisions made by an AI judge

Apart from issues connected with creation and operation of an AI judge, there is a number

of questions regarding the challenging, recognition and enforcement of the decisions

made by an AI judge. For instance, what could be the grounds and procedure for

challenging or how to enforce a decision if AI justice is not accepted in another state?

AI arbitrator

Finally as discussed in this paper, an AI judge concept faces some theoretical and

practical obstacles connected with constitutional law, fair trial principles, procedural

guarantees and ethical issues. As an alternative to an AI judge the research can be

continued with regards to a similar in the authors view concept – an AI arbitrator, which

is less bound by various regulations and thus can more conform to the reality.

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Conclusion

The phenomenon of an AI judge is something that does not exist for now; however the

recent events in technology and research discussed herein speak of a possibility of its

creation in the nearest future.

Tech giants and individuals such as Stephen Hawking and Elon Musk believe in almost

limitless potential of artificial intelligence.140

Nevertheless, Richard Susskind believes that personal interaction and empathy will

remain the needs that provide for human professionals to be still demanded and that it is

difficult to imagine a machine thinking as a clear as a judge.141 According to the capability

approach in determining the tasks for robots, they should perform only routine and

dangerous work leaving practical reasoning and imagination as “properly human

capabilities” only to humans.142 Can we rely on a machine in the delivery of justice or

should this area remain solely to people? Still questionable. As one can conclude from

this paper, there are legal barriers, ethical issues and open practical questions that for

now disallow the affirmative answer to the AI judge concept.

Personality

According to national and international laws, a judge is a person with rights, obligations

and liability. An AI judge concept simply contradicts such rules.

Ethical principles

To what extent is it possible to build ethical principles into a computer program? Which

principles should be built-in? Assuming, that a real person working as a judge is taken

as an example for the creation of an AI judge, meaning all his knowledge, experience,

principles and values are digitalised and combined in a computer programme, could it

resolve the raised issues about an AI judge?

Procedural guarantees

Can an AI judge ensure that the justice is delivered according to procedural

requirements? The practical performance by an AI judge of all the required functions in

the process is questionable.

Independence and impartiality

140 Bossmann, J. (2016). Top 9 ethical issues in artificial intelligence. [online] World Economic Forum. Available at: https://www.weforum.org/agenda/2016/10/top-10-ethical-issues-in-artificial-intelligence/ [Accessed 20 Jul. 2017]. 141 Susskind, The Future of the professions, p.p. 248-254, 278. 142 Leenes, R., et. al, Regulatory challenges of robotics, p.42

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New regulations are required to deal with the issue. Additional research and testing are

as well needed to estimate whether an AI judge is more impartial and independent than

a human judge or it is, even more, disregarding these principles.

Right to deviate

Should the right to deviate be given to an AI judge? The author considers it could be

allowed only in the particular cases if such deviation is authorised. Most complicated

cases and the new situation should be left to human judges.

For people in countries with high level of corruption and unstable court systems such as

Ukraine, the introduction of an AI judge could give more certainty in justice.

One day super-intelligent machines could be acting against humans or even pursue their

own goals threatening our existence. People can generally resist the development of

technologies that might create existential risks. Although any threats and risks connected

with the use of technology and allowing robots to think should not stop the development

but rather help to redirect the technology progress to avoid potential threats at early

stages. For people to accept technologies public education is certainly needed. The

public should be engaged in the discussion on the longer-term course of technological

development. As Wendell Wallach said: “Competing philosophies, religious beliefs and

cultural narratives will defuse the prospect of formulating clear policy goals”.143

Nevertheless, as for now one can see that the technology is becoming more and more

important and require proper regulations.

The society is not ready to believe in an artificial intelligence justice since even human

judges are not sometimes capable of resolving an issue and thus need to work in

chambers. The scepticism about an AI as a judge can be attributed to three biases, says

Susskind. First, it is the irrational rejection of the possibility of a machine to better solve

the case due to the lack of experience and factual confirmation. Professional lawyers

agree that a machine could perform construction works, surgery, and other tasks but not

deliver justice because of its unique character. Second, which in the author’s view mostly

prevents from giving answers to many questions left open in this paper, is called by

Richard Susskind as “technology myopia”, which is a tendency to underestimate the

potential of future technologies by evaluating them through comparison with existing

technologies. The limits of today’s computer programmes should not be applied to the

future more powerful machines. The third bias is a probably wrong contemplation that

the way to create a machine that performs human tasks at the same level or even better

is to replicate the process of thinking of a human. This belief may prevent researchers

from developing other possible ways the machines can outperform a human. 144

However, here the achieved result is of the most importance.

143 Wallach, W. From Robots to Techno Sapiens. p. 189. 144 Susskind, The Future of the professions, p. 43-44.

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Documents

Artificial Intelligence as a Judge: Can We Rely on a Machine? · practitioners and IT designers when artificial intelligence is further introduced in courts, as well as analysing