Updated: Dec 30, 2020
Research Intern, Legit
Private International Law
The definition of Private International Law has been subjected to much debate over the past years. Private International Law is the body of conventions, model laws, national laws, legal guides, and other documents and instruments that regulate private relationships across national borders. It is called the conflict of laws in common law states which perhaps explains it much better.Private International Law is also reflected in treaties and agreements, model rules, legal codes, and other transaction-regulating instruments.
Private International Law deals with a range of topics such as contracts, torts (lex loci delicti), family problems, adoption and kidnapping of children, intellectual property, etc.International law has become increasingly detailed and specific with international relationships and transnational legal processes becoming more and more complex.
Today, States remain the primary actors concerning International laws, but there has been a multiplication and even intensification in the role of sub-state and non-state actors. There is a continuous transformation by the public as well as private mechanisms. The evolution of norms has also become increasingly dense.
The number of laws a person is expected to comply with when engaging in online activities is not static; rather it varies depending on a range of factors and is context-specific. Knowledge of the number of applicable laws is an important tool for situations in which the complexity of a party’s contextual legal system amounts to an obstacle to legal compliance.
The Council of Europe defines AI as “a set of sciences, theories and techniques whose purpose is to reproduce by a machine the cognitive abilities of a human being. Current developments aim, for instance, to be able to entrust a machine with complex tasks previously delegated to a human.”  And AI has been growing in leaps and bounds throughout the world today.
Language differences, as well as differences in the meaning of legal concepts, is an obstacle when we deal with international laws and AI systems provide a promising chance to get over these barriers, now or shortly. The required technology to bring about the necessary and useful changes already exist. All that remains is to:
construct suitable modelling of private international law;
ensure access to the required data; and
feed the modelling and data into an appropriate AI system.
This can ease off the pressure on the international bodies and AI can help in the proper implementation of the laws at hand.
Can Artificial Intelligence help in dealing with the cases concerning Private International Law, a system plagued with jurisdictional overreach and jurisdictional gaps?
In this article, the author favours the use of new technologies such as AI and ML in the International Law sector. The arguments in support for the author’s stand will be laid in the ongoing parts along with case laws, expert opinions, reports and other prominent sources.
This pandemic has been an eye-opener for legal systems all around the globe. This time has given us the first taste of how things would function when we would place responsibility on the internet systems and various software to help us in dealing with cases and looking at how things are going, these changes are here to stay. AI and Machine Learning are two systems which are coming up fast and are helping the legal systems everywhere. Private International Law is a very vast and dynamic sector of law and using these new techniques to help in this sector would fasten the process and make the process of attaining justice more efficient and also more trustworthy. This paper supports the use of AI in the private International Law sector and gives reasons for the same too.
What is AI? -
AI systems typically demonstrate at least some of the following behaviours associated with human intelligence: planning, learning, reasoning, problem-solving, knowledge representation, perception, motion, and manipulation and, to a lesser extent, social intelligence and creativity.
Artificial intelligence can be split into two broad types: narrow AI and general AI.
Narrow AI is what we see all around us. They are intelligent systems that have been taught or learned how to carry out specific tasks without being explicitly programmed how to do so, for example- Siri, the virtual assistant on the Apple iPhone or the vision-recognition systems on self-driving cars, in the recommendation engines on shopping websites that suggest products based on what you bought in the past.
Artificial general intelligence is more advanced. It is a kind of adaptable intellect found in humans and is capable of learning how to carry out vastly different tasks, from haircutting to maintaining spreadsheets for companies. This is the sort of AI seen in the movies- HAL in 2001 or Skynet in The Terminator.
The problems arise in accessing the relevant laws, getting over language barriers, and identifying which states’ laws may claim to be part of the relevant legal system when dealing with cases of private international law. Here, we require an examination of all the laws of all the states in the world, including their respective private international law rules to decide the law of which state will be followed. This is perhaps humanly impossible, but it’s just the sort of task at which AI thrives.
The number of laws a person is expected to comply with when engaging in online activities is not pre-decided; it varies depending on a range of factors.
Imagine, a person in Canada sends an email to a person in India, relating to the activities of a person in Germany. Here the laws of all the 3 countries are relevant. Taking this a step further, imagine that this same person also posts this information on a US social media site on which she has “friends” in 100 different countries. In this activity, the person is exposed to the laws of a vast number of countries due to the greater reach of this post. This leads to a conflict in the laws which have to be abided by and required the need to have a legal system for any specific activity consisting of the norms of all relevant states’ laws that the person in question is expected to follow. In any situation involving clashing norms, it is not just a matter of determining which country’s laws shall be applied to the situation at the expense of all other laws, nor is it a simple matter of assessing whether a certain country’s laws apply to the situation. This formulation of laws has to abide by all the different kinds of laws of all the different states that are in question and no scope for any errors can be left. Having human beings handle this problem in earlier times was acceptable as the connectivity and reach between people and their views was limited. Today, it is a big problem that cannot be left ignored.
Also, the current regulatory landscape of AI is characterized by a proliferation of private standards and guidelines developed by the industry (e.g. Google and Microsoft). Private regulation is a useful step but remains of a voluntary and non-binding nature. Further, private standards are not harmonized and are driven by various interests and values.
How using AI will help-
The law has a lot of opportunities for incorporating AI and machine learning. Today, a handful of AI teams are building machine learning models to predict the outcomes of pending cases, using as inputs the corpus of relevant precedent and a case's particular fact pattern. As these models become more accurate, they will have a major impact on the practice of law. For instance, companies and law firms are starting to use them to plan their litigation strategies, fast-track negotiations and even minimize the number of cases that go to trial. Toronto-based Blue J Legal is one start-up developing an AI-powered legal prediction engine, with an initial focus on tax law. According to the company, its AI can predict case outcomes with 90% accuracy.
Each legal system that would be used for private international law topics is made up of norms from multiple states’ legal systems – norms that are typically neither coordinated nor harmonized. Thus, a contextual legal system to which a person is exposed to may contain clashing norms; that is, the norms of one state may demand performance of actions that the norms of another state forbid, or the norms of one state may outline duties that directly contradict rights provided for by the norms of another state. Within such a contextual legal system with conflicting norms, an advanced AI system can be programmed to prioritize some norms over others based on some pre-decided criteria. Taking one step further, legal concepts from other fields of law such as competition law may prove useful in addressing clashes of norms.
One of the models for the AI systems suggests that once data is fed to the system it will then be capable of:
Identifying the norms from multiple legal systems that together make up the relevant contextual legal system for a given activity; and
Reconciling –or at least balancing–those norms in a manner that makes for a coherent system even where individual norms clash.
New technologies could first be used to monitor compliance and prevent violations of international law and then advanced computer and robotic systems can be used to access, capture, collect, and process data that go beyond what a person can achieve. This also includes documentation and analysis of data to identify factual patterns amounting to violations of international law which can help in speeding up the process of getting to a decision in a case.
PAWS (Protection Assistant for Wildlife Security) is a project that has been developed and deployed; it predicts where poaching attacks could occur. In the context of large remote wild areas, the system has proven to be particularly useful. Another example is Sentry, an AI-based technology that predicts airstrikes in the Syrian conflict. Advanced technologies could be used to support investigations into violations of international law. In particular, combining detection and blockchain technologies could facilitate the production of evidence admissible in court. Blockchain technologies offer new ways to record, authenticate, and securely preserve and transfer information. In the context of armed conflict, blockchain can be used to verify and share evidence to enable the prosecution of international crimes. For example, in March 2018, the Global Legal Action Network (GLAN) announced the launch of a project exploring opportunities to use blockchain to securely gather evidence concerning the conflict in Yemen.
These new technologies can also be used to help in the formulation of global policies. Advanced AI can analyse information and help in addressing complex issues such as climate change, sustainable development, migration, armed conflict, and terrorism by compiling and analysing large amounts of intricate data. It can identify unseen patterns and connections, and possibly suggest new ways to tackle global issues.Unintelligible information can be converted into tangible materials by using AI and ML techniques. Human interpretation and judgement remain essential, but using AI to support law and policy-making could allow uncovering new solutions and improve global governance.
In this context, even the role of private institutions like-Google or Facebook is relevant. They can be asked to coordinate in the development of privacy regulations and uniform guidelines that would ensure that fundamental values are integrated into the design and development of the laws.
Any time one writes about the future, the line between optimism and naivety is a thin one. AI is a new and upcoming technology which is going to make life easier for human beings. Even more so, it will improve the efficiency with which we live. Using AI for legal matters and international matters is new in the market. But even today, sufficiently advanced AI technology exists and is developing further at great speed. If humans are about to entrust their lives to AI as the driver of cars, and if AI is believed to have the ability to disrupt the legal industry, AI should also be utilized to solve some private international law challenges.
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