Gary Born

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

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 three decades and has taught international dispute resolution at law schools in Europe, the United States and Asia.^[1]

Academic Influence on International Dispute Resolution

Born has published numerous works in the fields of both international arbitration and international litigation. These works have contributed to the development of both areas 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 various jurisdictions.^{[lower-alpha 1]} It has contributed to the development of an international common law of commercial arbitration, derived from the New York Convention, in which courts in different jurisdictions around the world look to the development of common principles of law applicable to international commercial arbitration agreements and awards. The second edition of International Commercial Arbitration was released in 2014.

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:^{[lower-alpha 2]} “[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.”^[5] International Civil Litigation is frequently relied upon by US judicial decisions, including the US Supreme Court and various Courts of Appeals.^{[lower-alpha 3]}

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 4th ed. 2013) and International Arbitration: Law and Practice (Kluwer 2012)).

Born's treatise International Commercial Arbitration was awarded the American Society of International Law's Certificate of Merit for 2010^[6] and was voted the 2009 "IDR-Related Book of the Year" by the Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID) network.^[7] Born again received the OGEMID "Book of the Year" award in 2010 for his International Arbitration and Forum Selection Agreements: Drafting and Enforcing.^[7]

Representations

Born is a respected advocate in the fields of international arbitration, international litigation and public international law. He has participated in more than 600 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.^{[lower-alpha 4]} Born was the recipient of the inaugural "Advocate of the Year" award by the Global Arbitration Review in 2011^[8] and the ILO Client Choice Award for International Arbitration Lawyer of the Year in 2012 and 2014.^[9]

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^[10] and Vivendi and France Telecom, Repsol and Atlantic LNG 2/3, Shell Petroleum, Volkswagen, and others.^[11]

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.^[12] 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.^[13]

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.^[14]

Professional and Academic Activities

Born has taught courses on international arbitration, international litigation or public international law at Harvard Law School,^[15] Stanford Law School,^[16] St. Gallen University,^[17] National University of Singapore,^[18] University of Peking, Tsinghua University, Georgetown University Law Center,^[19] 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,^[20] and has been invited to deliver the James E.C. Brierley Memorial Lecture at McGill University^[21] and the Goff Arbitration Lecture at the City University of Hong Kong. He has also been awarded honorary titles by leading universities, including St. Gallen (Professor) and Wayne State University (Doctor of Laws).^[22] Mr. Born received the Haverford College Alumni Distinguished Achievement Award in 2013.

Mr. Born 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,^[23] the ALI's Restatement (Fourth) of Foreign Relations Law,^[24] the Board of Trustees of the British Institute of International and Comparative Law,^[25] the Academic Council of the Institute for Transnational Arbitration,^[26] the Advisory Board of the African International Legal Awareness^[27] and the Indian Journal of Arbitration Law.^[28] Mr. Born is a member of the Court of the Singapore International Arbitration Centre^[29] and a Vice-President of the American Society of International Law.^[30]

Principal Publications

Books

• International Arbitration: Law and Practice (Kluwer 2012)
• International Arbitration: Cases and Materials (Aspen 2010)
• International Commercial Arbitration (Kluwer 2009)
• 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 4th ed. 2013) (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)

Articles

• The United States Supreme Court and Class Arbitration: A Tragedy of Errors, 2012 J. Disp. Resol. 21 (2012)
• 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. 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