The future of Dispute Resolution

The Master of the Rolls started with examining the types of disputes which the justice system will most likely need to deal with in 2040. He suggests that factual disputes will "become almost entirely a thing of the past", certainly for civil and commercial claims at least (in the absence of allegations of fraud or deceit). That is because so much of what companies and individuals do by then will be "indelibly recorded and payment systems will be using cryptoassets on-chain".

Two major developments arising out of this are envisioned:

1) Litigants (especially those with lower value claims) will want increasingly faster (and cheaper) justice and this may, in turn, require the use of artificial intelligence "AI" led decision making. We examined the potential rise of "robot judges" in our 2021 article. The advantages of speed and low cost (and, possibly, greater consistency and predictability) are clear but, as the Master of the Rolls recognises, public confidence in the process will be the key driver of whether this reform really takes off in England.

It is crucial that the use of AI is seen by litigants as a fair and impartial way to resolve disputes. The Master of the Rolls' view is that it is important that the public understands what is, and what isn't, being decided by a machine. Above all, it will be crucial that an AI-driven decision (which, it is recognised, will be "rough and ready") can be appealed to a human judge. In reality, only minor, administrative decisions are likely to be made by AI, at least to begin with.

2) A further major issue will be how countries will deal with disputes involving blockchain, which is borderless. It is envisaged that much of the immutable data on which claims will be based will not be recorded in any one country or on any one node. The current principles of the conflict of laws are unlikely to be fit for resolving such disputes. Not only will disputes involve parties from many different countries (something which arises in disputes today too), but potentially more than one legal system might govern a dispute.

The Master of the Rolls foresees countries increasingly adopting digital justice systems which are not "hidebound by the historic civil procedure processes of old-fashioned domestic court-based processes". The digital dispute resolution system operating in a civil code country is likely to be similar to one operating in a common law country. As a result, national justice systems will need to learn to work efficiently alongside justice systems operating in other countries.