It has been suggested that List of international arbitration books be merged into this article or section. (Discuss) Proposed since November 2011.

Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforcable.^[1] Other forms of ADR include mediation^[2] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.

Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is similar to mediation in that a decision can not be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. By one definition arbitration is binding and so non-binding arbitration is technically not arbitration.

Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. There are limited rights of review and appeal of arbitration awards. Arbitration is not the same as:

• judicial proceedings, although in some jurisdictions, court proceedings are sometimes referred as arbitrations^[3]
• alternative dispute resolution (or ADR)^[4]
• expert determination
• mediation

Advantages and disadvantages[link]

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

• when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot "choose the judge" in litigation)^[5]
• arbitration is often faster than litigation in court )^[6]
• arbitration can be cheaper and more flexible for businesses^{[citation needed]}
• arbitral proceedings and an arbitral award are generally non-public, and can be made confidential^[7]
• in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied
• because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments
• in most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability

Some of the disadvantages include:

• arbitration may become highly complex^{[citation needed]}
• arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party^{[citation needed]}
• arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job
• if the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case
• in some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes^{[citation needed]}
• in some arbitration agreements and systems, the recovery of attorneys' fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation^{[citation needed]}; however most arbitration codes and agreements provide for the same relief that could be granted in court
• if the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee
• there are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned
• although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays
• in some legal systems, arbitrary awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect
• arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling
• rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law^{[citation needed]}
• discovery may be more limited in arbitration or entirely nonexistent
• the potential to generate billings by attorneys may be less than pursuing the dispute through trial
• unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award
• although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought^{[citation needed]}, thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.

Arbitrability[link]

By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:

• Procedures which necessarily lead to a determination which the parties to the dispute may not enter into an agreement upon:^[8] Some court procedures lead to judgments which bind all members of the general public, or public authorities in their capacity as such, or third parties, or which are being conducted in the public interest. For example, until the 1980s, antitrust matters were not arbitrable in the United States.^[9] Matters relating to crimes, status and family law are generally not considered to be arbitrable, as the power of the parties to enter into an agreement upon these matters is at least restricted. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not: As patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination.
• Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration^[10], while arbitration agreements with consumers are only considered valid if they are signed by either party,^[11] and if the signed document does not bear any other content than the arbitration agreement.^[12]

Arbitration agreement[link]

See also: Arbitration clause

In theory, arbitration is a consensual process; a party cannot be forced to arbitrate a dispute unless he agrees to do so. In practice, however, many fine-print arbitration agreements are inserted in situations in which consumers and employees have no bargaining power. Moreover, arbitration clauses are frequently placed within sealed users' manuals within products, within lengthy click-through agreements on websites, and in other contexts in which meaningful consent is not realistic. Such agreements are generally divided into two types:

• agreements which provide that, if a dispute should arise, it will be resolved by arbitration. These will generally be normal contracts, but they contain an arbitration clause
• agreements which are signed after a dispute has arisen, agreeing that the dispute should be resolved by arbitration (sometimes called a "submission agreement")

The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries, it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement.

In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:

• "arbitration in London - English law to apply"^[13]
• "suitable arbitration clause"^[14]
• "arbitration, if any, by ICC Rules in London"^[15]

The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:

• that the arbitrators "must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business"^[16]
• "internationally accepted principles of law governing contractual relations"^[17]

Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. For example, in disputes on a contract, a common defence is to plead the contract is void and thus any claim based upon it fails. It follows that if a party successfully claims that a contract is void, then each clause contained within the contract, including the arbitration clause, would be void. However, in most countries, the courts have accepted that:

1. a contract can only be declared void by a court or other tribunal; and
2. if the contract (valid or otherwise) contains an arbitration clause, then the proper forum to determine whether the contract is void or not, is the arbitration tribunal.^[18]

Arguably, either position is potentially unfair; if a person is made to sign a contract under duress, and the contract contains an arbitration clause highly favourable to the other party, the dispute may still referred to that arbitration tribunal.^{[citation needed]} Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. However, most courts will be reluctant to interfere with the general rule which does allow for commercial expediency; any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self defeating.

Sources of law[link]

States regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.

By far the most important international instrument on arbitration law^{[citation needed]} is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Some other relevant international instruments are:

• The Geneva Protocol of 1923
• The Geneva Convention of 1927
• The European Convention of 1961
• The Washington Convention of 1965 (governing settlement of international investment disputes)
• The UNCITRAL Model Law (providing a model for a national law of arbitration)
• The UNCITRAL Arbitration Rules (providing a set of rules for an ad hoc arbitration)

Arbitral tribunal[link]

The term arbitral tribunal is used to denote the arbitrator or arbitrators sitting to determine the dispute. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations.

In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.

Arbitrations are usually divided into two types:

• ad hoc arbitrations and administered arbitrations.

In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitation will be managed by the tribunal.

In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority.

Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.^[19]

Duties of the tribunal[link]

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.

However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:

• to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of "natural justice"); and
• to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.^[20]

Arbitral awards[link]

Although arbitration awards are characteristically an award of damages against a party, in many jurisdictions tribunals have a range of remedies that can form a part of the award. These may include:

1. payment of a sum of money (conventional damages)
2. the making of a "declaration" as to any matter to be determined in the proceedings
3. in some^[who?] jurisdictions, the tribunal may have the same power as a court to:
   1. order a party to do or refrain from doing something ("injunctive relief")
   2. to order specific performance of a contract
   3. to order the rectification, setting aside or cancellation of a deed or other document.
4. In other jurisdictions, however, unless the parties have expressly granted the arbitrators the right to decide such matters, the tribunal's powers may be limited to deciding whether a party is entitled to damages. It may not have the legal authority to order injunctive relief, issue a declaration, or rectify a contract, such powers being reserved to the exclusive jurisdiction of the courts.

Enforcement of arbitration awards[link]

One of the reasons that arbitration is so popular in international trade as a means of dispute resolution, is that it is often easier to enforce an arbitration award in a foreign country than it is to enforce a judgment of the court.

Under the New York Convention 1958, an award issued a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses.

Only foreign arbitration awards can be subject to recognition and enforcement pursuant to the New York Convention. An arbitral decision is foreign where the award was made in a state other than the state of recognition or where foreign procedural law was used.^[21]

Virtually every significant commercial country in the world is a party to the Convention, but relatively few countries have a comprehensive network for cross-border enforcement of judgments of the court.

The other characteristic of cross-border enforcement of arbitration awards that makes them appealing to commercial parties is that they are not limited to awards of damages. Whereas in most countries only monetary judgments are enforceable in the cross-border context, no such restrictions are imposed on arbitration awards and so it is theoretically possible (although unusual in practice) to obtain an injunction or an order for specific performance in an arbitration proceeding which could then be enforced in another New York Convention contracting state.

The New York Convention is not actually the only treaty dealing with cross-border enforcement of arbitration awards. The earlier Geneva Convention on the Execution of Foreign Arbitral Awards 1927 [3] remains in force, but the success of the New York Convention means that the Geneva Convention is rarely utilized in practice.

Article V of the New York Convention provides an exhaustive list of grounds on which enforcement can be challenged. These are generally narrowly construed by the courts in arbitration centres to uphold the pro-enforcement bias of the Convention.

Arbitration with sovereign governments[link]

Certain international conventions exist in relation to the enforcement of awards against states.

• The Washington Convention 1965 relates to settlement of investment disputes between states and citizens of other countries. The Convention created the International Centre for Settlement of Investment Disputes (or ICSID). Compared to other arbitration institutions, relatively few awards have been rendered under ICSID.^[22]
• The Algiers Declaration of 1981 established the Iran-US Claims Tribunal to adjudicate claims of American corporations and individuals in relation to expropriated property during the Islamic revolution in Iran in 1979. The tribunal has not been a notable success, and has even been held by an English court to be void under its own governing law.^[23]

Challenge[link]

Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word.

However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal.

Only domestic arbitral awards^{[citation needed]} (i.e. those where the seat of arbitration is located in the same state as the court seised) are subject to set aside procedure.

In American arbitration law there exists a small but significant body of case law which deals with the power of the courts to intervene where the decision of an arbitrator is in fundamental disaccord with the applicable principles of law or the contract.^[24] However, this body of case law has been called into question by recent decisions of the Supreme Court.^[25]

Unfortunately there is little agreement amongst the different American judgments and textbooks as to whether such a separate doctrine exists at all, or the circumstances in which it would apply. There does not appear to be any recorded judicial decision in which it has been applied. However, conceptually, to the extent it exists, the doctrine would be an important derogation from the general principle that awards are not subject to review by the courts.

Costs[link]

In many legal systems - both common law and civil law - it is normal practice for the courts to award legal costs against a losing party, with the winner becoming entitled to recover an approximation of what it spent in pursuing its claim (or in defense of a claim). The United States is a notable exception to this rule, as except for certain extreme cases, a prevailing party in a US legal proceeding does not become entitled to recoup its legal fees from the losing party.^[26]

Like the courts, arbitral tribunals generally have the same power to award costs in relation to the determination of the dispute. In international arbitration as well as domestic arbitrations governed by the laws of countries in which courts may award costs against a losing party, the arbitral tribunal will also determine the portion of the arbitrators' fees that the losing party is required to bear.

Nomenclature[link]

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific "types" of arbitration procedure have developed, particularly in North America.

• Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.^[3]

• High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties' agreement.

• Binding Arbitration is a form of arbitration where the decision by the arbitrator is legally binding and enforceable, similar to a court order.

• Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement. State law may automatically make a non-binding arbitration binding, if, for example, the non-binding arbitration is court-ordered, and no party requests a trial de novo (as if the arbitration had not been held).^[27]

• Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979.

• This form of arbitration is also known as Baseball Arbitration. It takes its name from a practice which arose in relation to salary arbitration in Major League Baseball.

• Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal's award.

Such forms of "Last Offer Arbitration" can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration). ^[28]

See also[link]

Notes[link]

References[link]

• Boskey, James B. (1993) The American Arbitration Association Insurance ADR Manual West Pub. Co.

International Arbitration[link]

• Blackaby, Nigel; Lindsey, David; Spinillo, Alessandro (2003) International Arbitration in Latin America Kluwer
• Born, Gary (2009) International Commercial Arbitration Kluwer
• Buhring-Uhle, Christian and Kirchhof, Gabriele Lars (2006) Arbitration and Mediation in International Business 2nd Ed.
• Craig, W. Laurence; Park, William W.; Paulsson, Jan (2001) International Chamber of Commerce Arbitration Oxford University Press
• David, R. (1985) Arbitration in International Trade
• Dugan, Christopher; Wallace, Jr., Don; Rubins, Noah (2005) Investor-State Arbitration Oxford University Press
• Lew, Julian; Mistelis, Loukas; Kroell, Stefan (2003) Comparative International Commercial Arbitration
• The Permanent Court of Arbitration (2000) International Alternative Dispute Resolution: Past, Present and Future
• PWC (2008) International Arbitration: Corporate Attitudes and Practices
• Redfern, A. and Hunter, M. (2004) Law and Practice of International Commercial Arbitration 4th Ed.
• Schreuer, Christoph H. (2001) The ICSID Convention: A Commentary Cambridge University Press – (International Centre for Settlement of Investment Disputes)
• Tibor Varady, John J. Barcelo, and Arthur Taylor Von Mehren (2006) International Commercial Arbitration 3rd Ed.
• Yves Dezalay and Bryant G. Garth. (1998) Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order

External links[link]

Look up arbitration in Wiktionary, the free dictionary.

• / United States Arbitration Association.
• The Association for International Arbitration.
• International Institute for Conflict Prevention & Resolution (CPR).
• Opensource Arbitration System project
• Dispute Resolution and Arbitration at the Open Directory Project.
• School of International Arbitration.
• To read actual labor arbitration awards and find arbitrator's resumes at Grand Valley State University.
• The arbitration database.
• American Arbitration Association.
• China Arbitraiton Online & Arbitration database.
• Scottish Arbitration Centre
• Dispute Resolution Hamburg - Rechtsstandort Hamburg e.V.

Gary B. Born (born September 14, 1955) is an international lawyer and academic. He is chair of the International Arbitration and International Litigation practices at the international law firm, Wilmer Cutler Pickering Hale and Dorr LLP, and the author of a number of commentaries, casebooks and other works on international arbitration and litigation.

Early life[link]

Born attended primary schools in France and Germany and completed his secondary education in the US. He received a bachelor's degree summa cum laude from Haverford College in 1978 and a J.D., summa cum laude from the University of Pennsylvania Law School in 1981.

Born served as a law clerk to the Hon. Henry J. Friendly, US Court of Appeals for the Second Circuit (1981–1982) and the Hon. William H. Rehnquist, US Supreme Court (1982–1983). Born has practiced with Wilmer Cutler Pickering Hale and Dorr LLP in London for the past two decades and has taught international dispute resolution at law schools in Europe, the United States and Asia.^[1]

Academic Influence on International Dispute Resolution[link]

Born has published numerous works in the fields of both international arbitration and international litigation. These works have contributed to the development of both fields as independent fields of legal study and practice.

Born’s treatise on International Commercial Arbitration is cited as the standard text in the field of international arbitration.^[2] International Commercial Arbitration provides a comprehensive treatment of the subject of international commercial arbitration and proposes innovative theories regarding the global legal regime for international arbitration and the constitutional status of the 1958 New York Convention (United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards). The work is divided into three main parts, covering international arbitration agreements, international arbitral proceedings and international arbitral awards.

Commentators debate the significance of International Commercial Arbitration for the evolution of the field of international dispute resolution. Some commentators conclude that the work reflects international commercial arbitration’s existing status as a developed legal system:

”Gary Born's magisterial new work International Commercial Arbitration … represents, in the range and depth of its coverage, and in the rigour and perception of its analysis, the most complete exposition of the law of international commercial arbitration ever available. Yet perhaps the most remarkable thing about this book is what it represents in terms of a coming of age of the field of international commercial arbitration, such that a book of this kind could be written at all... Born’s point of departure is a conception of a legal system for arbitration, which is separate and distinct from both international law and national legal systems...Born comprehensively proves his point in the way in which the greatest legal scholars have always done (and which the Academy neglects at its peril), by drawing together the apparently disparate responses of arbitrators and national courts on the central issues of arbitration into a sustained treatise, which expounds the common principles of the law....In delivering to us this monumental work of legal scholarship, Born … has equipped us with the fruits of his experience and research in a text which lays claim, like no other, to becoming the terminus a quo on the law of international commercial arbitration in the 21st Century.”^[3]

Other authorities see Born’s work as instead providing foundations for the development of a legal regime for international arbitration in the future:

“Gary Born’s International Commercial Arbitration is an extraordinary combination of both practical experience and academic analysis. In his introduction, Born writes that he ‘aspires to provide a comprehensive description and analysis of the contemporary constitutional structure, law, practice and policy of international commercial arbitration’, and that he ‘also endeavours to identify prescriptive solutions for the conceptual and practical challenges that confront the international arbitral process.’ These aspirations may sound Herculean and even unrealistic at first sight. Not to those who read Born’s International Commercial Arbitration. In the opinion of this reviewer, there can be no doubt that Born has reached his goals, and partially even gone beyond. … Most ambitiously, International Commercial Arbitration develops a comprehensive interpretation of the New York Convention, as providing a ‘constitutional’ framework for international commercial arbitration. Drawing on sources from around the world, and on a penetrating analysis of the Convention, Born’s work is ground-breaking in its exploration of the legal framework within which international arbitration functions and it will play a substantial role in the development of international arbitration worldwide.”^[4]

Born’s International Commercial Arbitration has frequently been cited by courts in developed jurisdictions.^[5]

Born has also written extensively on international litigation. His commentary and materials on International Civil Litigation in United States Courts is in its fifth edition. The work is a standard reference work on international litigation and is credited with having created the field in the United States:^[6] “[w]hen the first edition appeared, it broke new ground...[It was the] first case book on transnational litigation in the United States, and the first reference work in this area with its level of analytical depth and breadth of coverage.”^[7] International Civil Litigation is frequently relied upon by US judicial decisions, including the US Supreme Court and various Courts of Appeals.^[8]

Born has also authored casebooks on international arbitration (including International Arbitration: Cases and Materials (Aspen 2010) and International Commercial Arbitration: Commentary and Materials (Kluwer 2001)) and works on international dispute resolution (including International Arbitration and Forum Selection Agreements: Drafting and Enforcing (Kluwer 3rd ed. 2010)).

Born's treatise International Commercial Arbitration was awarded the American Society of International Law's Certificate of Merit for 2010^[9] and was voted the 2009 "Book of the Year" by the Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID) network.^[10] Born previously received the OGEMID "Book of the Year" award in 2009 for his International Arbitration and Forum Selection Agreements: Drafting and Enforcing^[11]

Representations[link]

Born is a respected advocate in the fields of international arbitration, international litigation and public international law. He has participated in more than 550 international arbitrations, including several of the largest institutional and ad hoc arbitrations in recent decades (see below). In 2006, Born was chosen by his peers as the "World's Best International Litigator" in a survey by Legal Media Group.^[12] In 2011, Born was the recipient of the inaugural "Advocate of the Year" award by the Global Arbitration Review ^[13] and the 2012 ILO Client Choice Award for International Arbitration Lawyer of the Year.^[14]

Born has represented a diversity of clients. According to press reports, Born has represented multinational corporate groups in a number of major international commercial and other arbitrations during the past decade. These included disputes involving Deutsche Telekom^[15] and Vivendi and France Telecom, Repsol and Atlantic LNG 2/3, Shell Petroleum, and others.^[16]

Born acted as lead counsel in the Abyei Arbitration, conducted under the auspices of the Permanent Court of Arbitration in the Hague at the Peace Palace. He represented the Sudan Peoples Liberation Movement/Army (“SPLM/A”) in the arbitration, implementing the 2005 Comprehensive Peace Agreement, between the Government of Sudan and SPLM/A. The Abyei Arbitration took a revolutionary approach to transparency in public international law arbitrations, with the oral hearings being open to the public and web-cast live around the world. Born’s closing submissions in the Arbitration and the Tribunal Award can be viewed on the PCA’s website.^[17] Born represented the State of Eritrea against Yemen in an arbitration under PCA auspices concerning territorial sovereignty over a number of islands in the Red Sea. Born also represented Greenpeace in an historic arbitration against the Republic of France, concerning the Rainbow Warrior incident. The arbitration concluded with an award of damages in favor of Greenpeace.^[18]

Born has sat frequently as arbitrator in institutional and ad hoc arbitrations, including both international commercial and investment arbitrations. Born was a member of the arbitral tribunal in Biwater Gauff v. Republic of Tanzania, which issued an order setting forth guidelines on transparency and confidentiality in investor-state arbitrations.^[19]

Professional and Academic Activities[link]

Born has taught courses on international arbitration, international litigation or public international law at Harvard Law School^[20], Stanford Law School, St. Gallen University, National University of Singapore^[21], University of Peking^[22], Georgetown University Law Center, University of Virginia School of Law and elsewhere. Born was named the inaugural Kwa Geok Choo Distinguished Visitor in 2012 at the National University of Singapore's Law School.^[23]

He is a member of the American Law Institute and has served on the Executive Council of the American Society of International Law, and as co-chair of the ABA International Section, Committee on International Aspects of Litigation. He also is a member of the Advisory Committee for the ALI’s Restatement of International Commercial Arbitration^[24], the Board of Trustees of the British Institute of International and Comparative Law^[25] and the Academic Council of the Institute for Transnational Arbitration^[26].

Principal Publications[link]

Books[link]

• International Arbitration: Cases and Materials (Aspen 2010)
• International Commercial Arbitration (2009) (Kluwer)
• International Commercial Arbitration: Commentary and Materials (Kluwer 2d ed. 2001) (Kluwer 1st ed. 1996)
• International Arbitration and Forum Selection Agreements: Planning, Drafting and Enforcing (Kluwer 3d ed. 2010) (Kluwer 2d ed. 2006) (Kluwer 1st ed. 1999)
• International Civil Litigation in United States Courts (Aspen 5th ed. 2011) (4th ed. 2006) (with Bo Rutledge) (3d ed. 1996) (2d ed.1992) (1st ed. 1989)
• The Extraterritorial Application of National Laws (1987) (with D. Lange)

Principal Articles[link]

• A New Generation of International Adjudication, 61 Duke L.J. 775 (2011)
• Confidentiality and Transparency in Commercial and Investor-State International Arbitration in The Future of Investment Arbitration (2009) (C. Rogers & R. Alford, eds)
• Keynote Address: Arbitration and the Freedom to Associate, 38 Ga. J. Int’l & Comp. L. 7 (2009)
• The Principle of Judicial Non-Interference in International Arbitral Proceedings, 30 U. Pa. J. Int’l L. 999 (2009)
• Towards A Uniform Standard of Validity of International Arbitration Agreements under the New York Convention, in Grenzueberschreitungen: Beitraege zum Internationalen Verfahrensrecht und zur Schiedsgerichtbarkeit—Festschrift fuer Peter Schlosser zum 70. Geburtstag (2005)
• Planning for International Dispute Resolution, 17 J. Int’l Arb. 61 (2000)
• Critical Observations on the Draft Transnational Rules of Civil Procedure, 33 Tex. J. Int’l L.J. 387 (1998)
• The Hague Evidence Convention Revisited: Reflections on its Role in U.S. Civil Procedure, 57 Law & Contemp. Probs. 77 (1994)
• The Effect of the Revised Federal Rules of Civil Procedure on Personal Jurisdiction, Service, and Discovery in International Cases, 150 F.R.D. 221 (1993)
• A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol’y Int’l Bus. 1 (1992)
• Comity and the Lower Courts: Post-Aerospatiale Applications of the Hague Evidence Convention, 24 Int’l Law. 393 (1990)
• Applying the Aerospatiale Decision to State Court Proceedings, 26 Colum. J. Trans. L. 297 (1988)
• Judicial Jurisdiction in International Cases, 17 Ga. J. Comp. & Int’l L. 1 (1987)
• Recent British Responses to the Extraterritorial Application of United States Law, 26 Va. J. Int’l L. 91 (1985)

References[link]

1. ^ http://www.wilmerhale.com/gary_born/
2. ^ Agora, Gary Born on International Commercial Arbitration, Vol. 26 No. 1, LCIA 2010, reviewed by James H. Carter, Daniel Girsberger, Campbell McLachlan QC, Joseph E. Neuhaus with foreword by Thomas W. Walsh
3. ^ Campbell McLachlan QC, Agora, Gary Born on International Commercial Arbitration, Vol. 26 No. 1, LCIA 2010
4. ^ Daniel Girsberger, Agora, Gary Born on International Commercial Arbitration, Vol. 26 No. 1, LCIA 2010
5. ^ Dallah Real Estate & Tourism Holding Co. v. Pakistan [2010] UKSC 46 (U.K.S.Ct.); Jivraj v. Hashwani [2011] UKSC 40 (U.K.S.Ct.); Altain Khuder LLC v. IMC Mining Inc. [2011] VSCI (Vict.S.Ct.); Larsen Oil and Gas Pte Ltd v. Petropod Ltd, [2011] SGCA 21 (Sing. Ct. App.); Yugraneft Corp v. Rexx Mgt Corp, 201 SCC 10 (Canadian S.Ct.); Barnmore Demolition and Civil Engineering Ltd v. Alandale Logistics Ltd, 2010 No. 5910P (Irish High Ct.); Sumito v. Antig Inv. Pte Ltd, [2009] SGSA 41 (Sing.Ct.App.); Shandong Hongri Acron Chemical etc. v. Petrochina Int’l (Hong Kong) Corp., HCCT 45/2009 (H.K. High Ct.) (2011).
6. ^ See Minear, International Civil Litigation in United States Courts, Commentary and Materials (Second Edition), 35 Harv. Int'l. L. J. 251 (1994) (“…a textbook that is defining the law school course of ‘International Civil Litigation’ in much the same way as Henry M. Hart, Jr. and Herbert Wechsler defined the course of ‘Federal Courts.’”); Curtis A. Bradley and Jack L. Goldsmith III, International Civil Litigation in United States Courts: Cases and Materials (Second Edition), 34 Va. J. Int'l L. 233 (1993-1994) (“When International Civil Litigation in the United States Courts was first published in 1989, it was the only casebook (and one of the first hornbooks) to present a ‘comprehensive treatment’ of the ‘emerging field’ of international civil litigation. Now in its second edition, [Gary Born's International Civil Litigation] is recognized by many as the standard general work in the field… the best general hornbook on the subject.”); McLachlan, International Litigation and the Reworking of the Conflict of Laws, L.Q.R. 2004, 120 (OCT), 580; Burbank, The World in our Courts: Gary B. Born and David Westin, International CivilLitigation in United States Courts; Commentary and Materials, 89 Mich. L. Rev. 1456 et seq.(1990-1991); Harold Hongju Koh, International Civil Litigation in United States Courts, 100 Yale L.J. 2347 (1990-1991) (“'[t]he best current compendium' regarding international civil litigation.”); American Society of International Law, The Future of Transnational Litigation in US Courts: Distinct Field or Footnote? Panel discussion at ASIL 101st Annual Meeting, 2007
7. ^ Baumgartner, Transnational Litigation in the United States: The Emergence of a New Field of Law, 55 Am. J. Comp. L. 793 (2007) (“a tome that has been as useful to scholars and practitioners as it has been to law students, influencing the thinking of many, both in the United States and abroad”)
8. ^ Asahi Metal Indus. Co. Ltd. v. Superior Court of California, 480 U.S. 102 (1987); Hartford Fire Ins. Co. v. Cal., 509 U.S. 764 (U.S. 1993); Saudi Arabia v. Nelson, 507 U.S. 349 (1993); J. McIntyre Machinery, Ltd. v. Nicastro, 2011 WL 2518811 (U.S. 2011); United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942 (7th Cir. 2003); United States v. Swiss Am. Bank, Ltd., 191 F.3d 30 (1st Cir. 1999); Kuenzle v. HTM Sport-Und Freizeitgerate AG, 102 F.3d 453 (10th Cir. 1996); Allendale Mut. Ins. Co. v. Bull Data Sys., 10 F.3d 425 (7th Cir. 1993)
9. ^ http://www.asil.org/am11/index.cfm
10. ^ http://m.wilmerhale.com/01-31-2011/
11. ^ http://m.wilmerhale.com/01-31-2011/
12. ^ See Legal Media Group's Expert Guides
13. ^ http://www.globalarbitrationreview.com/news/article/29299/and-winner-is-gars-pick-best/
14. ^ http://www.internationallawoffice.com/Awards/CC/2012/
15. ^ http://www.wilmerhale.com/files/News/9d98da62-518b-4f40-939b-3e40aa2c1fe9/Presentation/NewsAttachment/7c2db51c-9517-4d18-a292-417dd0de8191/lawcom_born.pdf
16. ^ Focus Europe: The Arbitration Scorecard (American Lawyer, 1 June 2007)
17. ^ http://www.pca-cpa.org/showpage.asp?pag_id=1306
18. ^ France Must Pay Greenpeace $8 Million in Sinking of Ship (The New York Times, Saturday, October 3, 1987)
19. ^ http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC1583_En&caseId=C67
20. ^ http://www.law.harvard.edu/faculty/directory/index.html?id=922
21. ^ http://nus.edu.sg/
22. ^ http://english.pku.edu.cn/
23. ^ http://newshub.nus.edu.sg/headlines/0112/kgc_25Jan12.php/
24. ^ http://www.ali.org/index.cfm?fuseaction=projects.members&projectid=20
25. ^ http://www.debretts.com/people/biographies/browse/b/22120/Gary%20Brian+BORN.aspx
26. ^ http://www.cailaw.org/ita/council.html