Artificial intelligence (AI) has become an integral part of our lives, and many companies are implementing it in their operations to improve their business. For example, Netflix uses AI to recommend new content to users, and Uber uses it for customer service, fraud detection, and route optimization. Despite its benefits, the widespread use of AI also threatens the role of humans in traditional professions and raises ethical concerns.
ChatGPT, an AI-powered chatbot system released by OpenAI in November 2022, is a great example of the power of AI. It uses a predictive model to browse the Internet and respond to almost anything that comes to mind, from rap songs to movie scripts to essays. It has been exposed to a huge amount of data, allowing the AI to be able to predict the sequence of words and compose incredibly long explanations.
Use of ChatGPT in a court proceeding in Ukraine
Case history
In February 2022, a private enterprise (PE) filed a lawsuit with the commercial court seeking to recover UAH 4.7 million in debt from a person.
The decision of the Commercial Court of Cherkasy Region, which was upheld by the decision of the Northern Commercial Court of Appeal, dismissed the claim in full.
By the decision of the Supreme Court of 11.12.2023, the cassation appeal of the PE was partially satisfied.
In this ruling, the Supreme Court addressed the issue of filling a gap in the legislation regarding the consequences of the company’s shareholders’ failure to make additional contributions to increase the authorized capital, adopted before the entry into force of the new Law No. 2275-VIII “On Limited and Additional Liability Companies” dated 6.02.2018, which regulates the procedure for increasing the authorized capital and the consequences of non-payment of additional contributions. The court found that the failure of a shareholder to pay an additional contribution does not give rise to a claim for recovery of this contribution from him through the court. The Court also noted that the new legislation cannot be applied to legal relations that arose before its adoption.
The Supreme Court agreed with the previous courts that the company’s claim to recover the additional contribution from the shareholder was unfounded.
On January 22, 2024, the plaintiff’s attorney-at-law filed an application with the Supreme Court for clarification of the cassation court’s ruling of 11.12.2023, claiming that he had established a number of circumstances and concepts that should be clarified in order to understand them correctly and apply the law in the future when resolving disputed legal relations.
To justify the need to clarify the concept of “voluntary obligation” used in the Supreme Court’s decision, the lawyer, among other things, referred to the answers provided by ChatGPT artificial intelligence in the course of analyzing this concept, and also pointed out that the concept used by the court contradicts the theoretical concept enshrined in the substantive law.
At the hearing, the lawyer quoted the content of this concept as defined by ChatGPT, drawing attention to the fact that ChatGPT identified this legal construct as an obligation to which the parties came voluntarily (by their own will). Therefore, in the opinion of the applicant’s lawyer, the court still needs to further define the subjects, object and content of such a concept, and clarify its differences from the word “obligation”.
Judges’ reaction to the use of AI
The judges of the Supreme Court did not accept the lawyer’s arguments with reference to AI.
Firstly, because Ukraine has not yet “approved ethical standards and norms governing the use of artificial intelligence in legal proceedings…”
Secondly, the applicant actually asks the Supreme Court to refute or confirm that the artificial intelligence “ChatGPT” generated the information on the issue, which is not recognized as a source of reliable scientifically proven information, contrary to the conclusions made by the court in the court decision.
In this way, the judges noted, the applicant questioned the judge’s discretion and judicial interpretation of this issue in a decision that had become final, thus undermining the authority of the judiciary.
In other words, in the case at hand, the participant, in the judges’ opinion, uses AI technology not as a means of facilitating the administration of due process, but rather to challenge (question, appeal) the conclusions already made by the court.
“Technology should only be used to support and strengthen the rule of law. Technology can only be used to support and assist courts and judges in the proper management and determination of proceedings,” the Supreme Court judges emphasized.
“The opposition by a litigant in a procedural statement to the conclusions of the Supreme Court’s Trial Chamber on a legal issue and artificial intelligence, which has no regulatory framework and no scientifically proven basis for use, as a basis for explaining the court’s decision “inevitably causes problems in terms of the impact on the authority of the Supreme Court, its judicial practice and trust in the judiciary as a whole,” the Supreme Court judges said.
The Commercial Court of Cassation of the Supreme Court (CCC SC) issued the relevant ruling on February 8, 2024 in case 925/200/22, which, in particular, states the following:
“Summarizing the above, the Supreme Court considers that the applicant’s actions in the aggregate (submission of a deliberately unfounded application for clarification of the cassation court’s decision, the right to clarification of which is not provided for in Article 245 of the Code of Civil Procedure of Ukraine, appeal to the “position” of the artificial intelligence “ChatGPT” generated by it in its responses to a separate issue already considered by the court) is a manifestation of disrespect for the judges of the Supreme Court, and is not aimed at effective protection of the plaintiff’s rights, freedoms and interests from alleged violations by the defendant.
The statement is clearly unfounded and deliberately groundless (in fact, it is reduced to disagreement with the court decision, re-examination of the court’s conclusions with a different judicial interpretation and answering questions that were not the subject of the dispute at all), does not meet the task of economic proceedings and is an abuse of the right to file a statement, so the Supreme Court considers it inadmissible under Article 43 of the EPC.”
Thus, the Supreme Court decided to recognize the submission (citing the AI’s conclusions) by the Private Enterprise’s lawyer of an application for clarification of the Supreme Court’s ruling of 11.12.2023 in case No. 925/200/22 as an abuse of procedural rights and leave it without consideration.
Not everyone agrees with the decision of the Supreme Court judges
It should be noted that Judge Hanna Vronska of the same Supreme Court expressed a dissenting opinion on the issue. Thus, she emphasized that the mere reference to information generated by AI technologies, in the absence of other justified circumstances that would indicate unfair procedural actions of a person, cannot be recognized as an abuse of procedural rights.
“The statement does not contain any humiliating, offensive or other negative statements, a clear demonstration of disrespect for the Court, etc.”, – said Ms. Vronska.
She also notes that the current commercial procedural legislation does not prohibit the use of AI technologies in commercial proceedings. In addition, the court practice lacks an established approach and clear criteria by which the use of AI by litigants may be recognized as an abuse of procedural rights.
Summarizing the above, we can state that one of the biggest problems with artificial intelligence is the lack of regulation and effective legislation (in various areas) regarding AI. Who controls and is responsible for these systems, and who can be held accountable for the decisions made? Without proper regulation, it is difficult to enforce the ethical principles that guide AI development. In addition, the growing use of AI raises questions about privacy, data protection, and transparency. As for copyright issues, there are general rules, but they still exist. And we have repeatedly talked about this in our articles and in personal consultations with our clients.
artificial intelligence / ChatGPT / copyright / court / intellectual property
