A conversation with Gary Born
“I think that it's difficult to categorically say that arbitration is better than litigation in every case”, says Gary Born, chair of the International Arbitration Practice Group of Wilmer Cutler Pickering Hale and Dorr LLP, in an interview with Ricardo Vásquez, attorney from Universidad de Chile.
The opening of the economies and the need to present a favourable climate to business and foreign investment increased the use of arbitration in the last decade. The combination of international arbitration procedure and the substantive obligations arising under domestic, investment and public international law, created many challenges related to the application of fundamental principles in the administration of justice. In the past couple of years, international arbitration has been subject to several reforms in order to improve its rules and regulations, in particular, regarding independence and impartiality of arbitrators, conflicts of interests, third party funding, virtual hearings and paper filings, among others. COVID-19 changed the way hearings were conducted and arbitral procedures had to adapt to the new reality. The Investor-State Dispute Settlement System has been subject to increased criticism. Questions about finality of the award, consistency, correctness, and predictability of the arbitration system have been raised. The public component of this international arbitration proceeding, the substantial amounts of money at stake and the potential impact of the awards on State's regulatory powers, have been a matter of controversy. The standard of review of the awards and the establishment of a permanent appeal panel versus ad-hoc arbitrators is an on-ongoing debate. This interview sought to analyse practice, procedure and some of the best practices and new developments in international arbitration.
-Why did you get involved in international disputes settlement? Why did you choose international arbitration over other fields?
-Well, it might be that I had great difficulties finding other employment in my early years, and I was left with no other alternative. It might also be that I had a foreign wife and was accustomed to “international disputes” and “arbitration”. Therefore, it came quite naturally to me.
-You act both in arbitration and litigation, whether domestic, international, or cross-border. Arbitration is a tailor-made procedure granting the parties the opportunity to manage it; do you think arbitration is a fairer field than litigation?
That is an excellent question that I know businesses often ask themselves. Even the Dean, as he mentioned, asks himself that question every morning. I think that it's difficult to categorically say that arbitration is better than litigation in every case. In a domestic context, there may be advantages to national court litigation. For example, in a lending transaction where a financial institution wants a particular type of proceeding that domestic litigation offers, court litigation would be beneficial.
But putting aside domestic arbitration for a moment, I believe that international arbitration is preferable in the vast majority of cases to other contentious alternatives. Particularly to litigation in national courts. This statement is naturally subject to exceptions, and the Dean touched on a couple of these points. In my mind, however, the advantages of international arbitration can be summarized by what I call the six e's: Arbitration is (i) more efficient; (ii) more expeditious, (iii) more expert, (iv) more even-handed, (v) more enforceable, and today, (vi) more electronic than the alternatives in litigation before national courts in many ways. Arbitration is also a consensual process where parties agree to arbitrate. It is a means to resolve disputes by an adjudicator – a decision-maker chosen by the parties, typically after a dispute arises. It has a flexible procedure designed largely by the parties – but, in some cases, through the arbitral tribunal's procedural discretion.
As a consequence of those basic characteristics of arbitration, it can be both more efficient and more expeditious because the parties can choose a decision-maker who is familiar with their area of dispute and after such dispute has arisen. The parties can choose someone because of their language proficiency, legal qualifications, and experience in a commercial or technical field. The adjudicator is familiar with the issues at stake in the dispute and can design a procedure that is both more expeditious and more efficient.
Additionally, arbitral institutions in this era have designed (so-called) expedited procedure rules. The SIAC, the ICC, and other leading arbitral institutions have done so by enabling quite significant disputes of up to around 5 million US dollars to be resolved in no more than six months. As we all know, time is money and having a dispute resolution mechanism that is efficient and expeditious means that the businesses ultimately save money by arbitrating their disputes. Arbitration is also more expert. Suppose you are facing a dispute that includes a joint venture in the telecommunications business in Kuwait, and the language of the arbitration is Spanish. In that scenario, you can choose an arbitrator who has the relevant expertise to meet all of the cases’ needs.
Arbitration is also more even-handed – and this is especially true in international matters. In typical international litigation, both parties will seek to litigate in their home jurisdictions because, often correctly, they think they have an advantage there. Both parties will often go forward on their home turf and obtain favorable judgments in a fair number of cases. The only disadvantage to that happy picture is that those judgments typically can't be recognized or enforced in one another's home jurisdictions. In contrast, international arbitration doesn't involve dispute resolution on one party's home turf. Instead, it is a neutral and even-handed international forum with arbitrators required to be independent and impartial with suitable mechanisms for challenging and removing them. International arbitration agreements and arbitral awards are also subject to easier recognition and enforcement because of the New York Convention and the UNCITRAL Model law than foreign selection agreements or national court judgments. There's an enforceability premium which means that once the parties have resolved their dispute, that dispute remains resolved.
The sixth “e” is that international arbitration these days is more electronic than other contentious alternatives. There has been a significant challenge with remote hearings in courts. And that is particularly true in jurisdictions where, for example, there's a jury trial. Whereas many national courts’ judges have struggled, remote hearings and virtual hearings have become the rule in most parts of the international arbitration world.
-It's interesting your comment regarding the expeditious of arbitration. One of the issues usually raised by clients is the cost of arbitration. Having the international Chamber of Commerce’s rules of arbitration, the Singapore International Arbitration Centre’s rules and some other institutional rules incorporated fast-track proceedings but used for smaller value disputes, do you think those faster proceedings could be used for bigger cases?
-It’s possible, and in some cases, the SIAC rules permit fast-track proceedings. For example, in cases of exceptional urgency, even if they’re of a more considerable value. But this needs to be carefully assessed. A Tribunal must allow parties to be heard and ensure basic due process rights. Therefore, if you have a 500-million-dollar dispute, a 2 billion dispute, or a dispute involving state entities or important matters of principle, one doesn’t necessarily want to be too expeditious. In those cases, parties often prefer a more deliberate procedure where they’re ensured that they have a full opportunity to present their case – notwithstanding wishing to save money.
Now, going back to your first question, I’d like to make a comment about professor Fiss – who the Dean sometimes wakes up to with good reason because he was a formidable figure. His famous article was called “Against Settlement”. Professor Fiss’s idea was that when private parties took their disputes and settled them out of court, what they were doing was somewhat illegitimate, a little bit selfish perhaps because they denied the public a public good. They denied the public the benefit of a judicial decision resolving their dispute and making a law on which everyone could rely. Therefore, Professor Fiss was also against arbitration because many arbitral awards are not published. Thus, by resolving disputes by either arbitration or mediation, one again steals from the public. In a sense, Professor Fiss would probably say that one takes away the opportunity for a judge to make some law. That view, I think, really misunderstands dispute resolution and adjudication. The misinterpretation is particularly true in a civil law jurisdiction, where a civil code is supposed to be the law, but it's also true in common-law jurisdictions where courts make much of the law.
Courts these days don’t have “too few cases” to make law. If anything, in most common law jurisdictions, they have too many cases to make good law, and as we all know, if courts are overburdened and act too hastily, the law that they make is, actually, bad. Unsurprisingly, that’s why almost all judges in common law jurisdictions disagree with professor Fiss. They think that there should be alternative dispute resolution mechanisms, both mediation, and arbitration, to relieve the congestion in their dockets precisely so that they can take the opportunity in the appropriate number of cases to make good law. But finally, and perhaps most fundamentally, I think professor Fiss misunderstands the rule of law. One of the most fundamental aspects of the rule of law is the autonomy of the parties. It’s that autonomy: the freedom of contract, the freedom of religion, and the freedom of marriage that lets people forge relationships in the first place. All free democratic societies recognize that freedom. And yet all those relationships, because we're only human, have flaws. They encounter difficulties, disputes arise – like the marriage, that I referred to in answer to your very first question.
A fundamental aspect of human freedom of autonomy is not just to make relationships but also, to amend and cure relationships, to fix them when something goes wrong through the party's own free choice. That's what arbitration is, as we started by saying, the right to choose how your dispute will be resolved. The people who arbitrate, mediate, or settle aren't robbing from the public. Instead, if one were to take that freedom, it would be the public robbing from them.
-The New York Convention on Recognition and Enforcement of Foreign Arbitral Awards has proved to be a cornerstone in international commercial arbitration. There have been proposals in the past urging to amend. The saying goes “if it ain't broke don't fix it” What is your view?
-You just stole my answer, so I will be short on this one. The Convention now is essentially global. In the last weeks, Iraq ratified it, making it the 168th contracting party to the New York convention. There are a few outliers, such as North Korea, but essentially the entire world has ratified the New York Convention. I also believe that through the joint efforts of parties, counsel in arbitrations, national courts, and commentators, the Convention has been elaborated in a very useful way. I think that it has faced unforeseen challenges and issues. For instance, when the Convention was drafted in 1958, Article 2.2 referred to telegrams. Nobody could have foreseen that telegrams would become obsolete, and I think that's why one shouldn't try to fix something that isn't broken. I worry that the fix might end up looking something like article 17 in the 2006 UNCITRAL Model Law. Namely, a very lengthy and overly detailed set of provisions that, by definition, almost can't accommodate unforeseen future circumstances. So, I would wholeheartedly endorse your observation: if it isn't broken, please don't fix it.
-You mentioned in the sixth “e” in arbitration that “international arbitration these days being more electronic than other contentious alternatives”. After ten years of wider use, the International Bar Association updated its Rules on Taking of Evidence in International Arbitration. From my perspective, the updates to the rules are predominantly intended to reflect somewhat the practices that parties and arbitral tribunals have adopted since the “Covid-19” pandemic began. What are your thoughts on this new set of rules?
I think what you've said is exactly right in your question. I believe it is the principal contribution. First, the IBA rules on the taking of evidence are pretty good, and the thing is that they are also not broken. In any case, I don't think that the recent 2020 amendments were damaging. On the contrary, it's part of an evolutionary process reflecting best practices that I believe was in fact, desirable. Under the previous IBA rules on the taking of evidence, remote hearings could be accommodated. But, obviously, nothing specifically addressed them. The new provisions reflect best practices, which remarkably over the past year developed almost spontaneously around the world in a very positive fashion.
I think that if you'd asked the various attendees on this webinar two years ago, could you have remote hearings? Is it likely we might have a year a calendar year where there are truly only remote hearings? Everyone would have thought it was a ridiculous question. They would have thought that we could not do it, and why should we do it. I believe that today the answer is precisely the opposite. I believe remote hearings have been used quite effectively by parties from many different jurisdictions. And in a vast range of different types of disputes, remote hearings have proved capable of not just resolving disputes when you can't have an in-person hearing, but also resolving disputes more efficiently and expeditiously – even if you could have an in-person hearing. I think the real question will be, once we can travel and spend a week or two weeks together in the same hotel in Paris, London, Miami, Santiago, will we do that? Or will we continue to use remote technology with the benefits that it produces in terms of time and cost? I don't know the answer to that. But I suspect we'll have more remote hearings than we would have possibly imagined not too long ago.
-And what about the Prague Rules of Conduct of Proceedings? I heard that you are not a big fan of these rules. Why is that?
-So, the Prague Rules have a noble aspiration. They are, as you mentioned, rules for the efficient conduct of international arbitral proceedings – and obviously, we're all in favor of efficiency. In my view, and perhaps to be fair, this might reflect my common-law training, I consider the rules predisposition against any disclosure. And especially electronic disclosure is what businesses often want. They may not say that at the very beginning of the case, but in the course of the proceeding, they, almost always, want some opportunity for disclosure – to test the party's factual assertions. One of the fundamental objectives of arbitration is to resolve disputes per the rule of law. To do that, one needs a sound and proper understanding of the facts. In my experience, in major disputes, a measure of disclosure is essential. Parties can tell very beautiful stories, but a little bit in, sometimes like "Potemkin villages" where if you probe a little bit with the benefit of disclosure, those stories come apart. At the end of the day, what tribunals are mandated to do is to resolve disputes. Factual disputes. And, in my view, disclosure is an essential part of that. Thus, I think that the Prague Rules have gone overboard in trying to achieve some efficiencies in the arbitral process.
-Acting as arbitrator you have been subjected to disqualification by one of the parties. I remember an ICSID case (Mathias Kruck and others v Kingdom of Spain) where Spain sought your disqualification. ICSID and UNCITRAL have been working jointly in a Code of Conduct for adjudicators. Do you think that a Code is the way to deal with issues such as independence and impartiality, or the current regulation within rules and conventions are enough?
That's an excellent question – and I think I’m a little bit like the Dean on this one. I wake up with a different view on this topic on different days. I have in the past been rather critical of the IBA Guidelines and their traffic lights system: the red, orange, and green lists.  The main reason why I've been critical is because I think that the IBA guidelines muddle the requirements for disclosure with the requirements for removal or disqualification of an arbitrator. And I think it is extremely important to keep those two things apart.
There should be a much broader obligation of disclosure than would be sufficient to disqualify an arbitrator or remove an arbitrator for lack of independence and impartiality. I am skeptical as to whether the UNCITRAL-ICSID guidelines or rules for adjudicators will produce a positive result. I'm skeptical because, a little like the case of counsel ethics in international arbitration, I think that the problem with arbitrator independence and impartiality is not the lack of standards. But instead, the existence of too many standards. And, in my view, the UNCITRAL-ICSID use of potentially conflicting or inconsistent standards.
I think that confining rules to a specific type of arbitration, and in that context further elaborating the obligations of independence and impartiality, is, in contrast, a good thing. To some extent, the IBA Guidelines themselves recognize this in a recent decision by the UK Supreme Court, and the Halliburton Case also recognized this But parties in different commercial sectors have different expectations as to their arbitrators’ independence and impartiality. For example, in maritime cases, the parties frequently expect arbitrators to have had vast numbers of repeated appointments – hundreds of repeated appointments by not just the same law firms but also the same parties. And that's very different from your ordinary non-maritime commercial arbitration case. ICSID cases may also be somewhat different, although I would think it's worth thinking hard about whether that's the case, given the extent of repeated appointments there.
Going back to the challenges that are sometimes raised against arbitrators, I do think there's a real cost to excessive challenges. Many challenges, like the one you mentioned by Spain, are rejected. I think, quite frankly, that many challenges are made without any expectation that they will succeed. They're made for tactical reasons: to have a hearing postponed, to lay down a marker with respect to a particular arbitrator, perhaps for domestic consumption, or internal consumption at a particular party, and so on. I think that measures should be taken, to discourage those types of challenges – guerrilla tactic challenges. And in my view, the imposition of costs and immediate costs order through an interim award for meritless challenges in arbitration should be seriously considered.
-What about double hatting? Should it be allowed? Should it be forbidden? Or, from your perspective, just better regulated?
So, double hatting is referred to -and you can also have triple hatting, to be honest- to the practice whereby the same person sits as an arbitrator and acts as counsel. Not of course in the same case, but just in the course of one’s career, and at the same point in time. So, at one point in time, say I’m acting as counsel, and then, the next day or maybe later the same day, I’m sitting as an arbitrator or preparing for a hearing as an arbitrator. The third hat I referred to is if I’m sitting as an expert witness. Besides being an arbitrator or counsel, one can also serve as an expert witness. An expert witness has a slightly different mandate and a somewhat different set of expectations than either an arbitrator or counsel. Let me start by saying that I think there can be very substantial benefits from double or triple hatting.
I think that many younger arbitrators are almost inevitably counsel. It would be a very unfortunate thing for the development of arbitration practitioners, the development of individual legal careers, and the efficient handling of cases to say that “all arbitrators may not be counsel”. Essentially, you would be reserving the role of arbitrator to older practitioners. Often these days, older men. And I don't think that is a desirable approach, either today, in ten, or twenty years. I also believe that double hatting benefits the people who do it, as both counsel and arbitrators. You don't really understand how counterproductive some procedural tactics as counsel can be, until you've seen them displayed before you when you're an arbitrator. One is a much better counsel if one has been an arbitrator. Conversely, one's a better arbitrator if one has recently been counsel and understands the procedure. Of course, in some cases, there may be risks from double hatting – investor-state cases being an example. The risk is that if one is an arbitrator in a case that raises very similar issues to a case where one is counsel, one might be tempted to skew one's decision in the arbitration, to favor one's client in the case where one's counsel. To be honest, I think that as a practical matter, that's very unlikely to happen. It's very unlikely that somebody writes an award that they subsequently cite it in their favor. In some other case, nobody is going to attribute much weight to an award written by counsel for one of the parties particularly. At least not if it was in the recent past. Nonetheless, perhaps to ensure confidence in the arbitral process, there should be disclosure and other limitations on serving as arbitrator and counsel in investor-state cases involving similar types of instruments. I don't think UNCITRAL and ICSID have decided how they want to approach the issue of double hatting, but I think in light of its significant systemic benefits, one ought to be hesitant about imposing restrictions.
-I will move to investment arbitration in a moment but before I say that your opinion reminds me of some words that I heard from Yves Derains who states that “the ability to decide is not really a skill that one learns during law school or in any training courses, but it is rather a skill that is developed through practice and self-assurance.” What would be your advice for those arbitrators who are going to be appointed for the first time?
-So, the first time getting your first arbitration, like catching your first fish or buying your first car, is the most difficult one always, and just getting into the position to face the question that you raise is a difficult one. I think that serving as tribunal secretary is a good way to assure yourself of that first appointment. I also believe that many arbitral institutions, for example SIAC, have a reserve list for more minor cases or appointments on behalf of parties in smaller cases who have defaulted. I think young practitioners can, and should seek to, be appointed as arbitrators in those types of cases. They often don't involve much remuneration but are good opportunities for younger lawyers to get their first experience. I also think that serving as tribunal secretary and as counsel watching how tribunals decide the cases you have argued are good ways to answer that question. I think that watching how a tribunal decides procedural matters in the course of the arbitration and how it decides its award is part of the process described in your quote. It's also one reason why, again, I'm doubtful about prohibitions against double hatting as a general matter.
-Regarding, investment arbitration, the foreign investment regime has been subject to increasing criticism. The European Union has pushed the introduction of this investment court system for the resolution of investment related disputes which merges features of arbitration and judicial settlement. What do you think about this proposal?
-I think it is deeply pernicious and will be an important step backwards. Perhaps a century backwards to some of the darker chapters in our history of international law. I think it replaces a system that is characterized by independence and impartiality of tribunals who are chosen through the equal participation of both parties, with a system where one party alone, and predominantly the European Union, would select all the decision-makers. The host state would choose all of the decision-makers.
If you dig not too deeply into the reasons for the multilateral investment court, the reasons are quite simple: States want to win more cases. They want investors to be unsuccessful in a higher proportion of cases. It is important to think about why they want to do that. And it is because now European Union States are, for the first time in the last decades, on the receiving end of claims by foreign investors rather than being the State that is the home of the investor making claims against countries whether in Latin America, Asia or elsewhere. And the way that the European Union in particular wishes to win more cases, is not by changing the substantive protections in bilateral investment treaties – which they could do. But through the indirect mechanism of asserting complete control over the selection of the court members, control over the compensation, and the reappointment of members of the court.
I don't think that speaks well of the European Union. I believe that history will judge that sort of mechanism quite adversely. It's important, as well as we think about that, to remember that the multilateral investment court is not something like, say, the privy council in England or your highest court in Chile, which hears a wide range of issues on every conceivable topic. Instead, the multilateral investment court hears an extremely narrow range of issues. Thus, allowing states to pick alone all of the court members based on that limited range of matters amounts in many ways to the states deciding the disputes themselves, which is a very unsatisfactory approach towards international law.
-Regarding Latin America, what do you think may be the main challenges for a positive evolution of international arbitration here in Latin America?
-I think in many ways, there has been a revolution. You can speak to this more expertly than myself, but if you look at the last two or three decades in Latin America, there has been a revolution already. And I think the real challenge is sustaining that revolution. I believe every country faces different challenges in that regard. Still, I also believe that global challenges have arisen in the last ten years, which then manifest themselves in specific ways in individual countries. In the United States, one has seen the Trump administration demand the renegotiation of the North American Free-Trade Agreement and the significant curtailment of Investor-State Arbitration. Also, the abrupt withdrawal from the Trans-Pacific Partnership negotiations in considerable part because of the investor-state protections. One will no doubt see the introduction of legislation in the democratic congress aimed at curtailing arbitration, particularly in domestic matters. There have been similar developments in the European Union. And in each case, I think the common theme is: the extreme right and the extreme left of the political spectrum see both investors-state and commercial arbitration as a threat to state control. Arbitration is seen as a threat to the ability of the state to monopolize all aspects of both commercial and human affairs. I think how one meets those challenges depends significantly on individual jurisdictions. Still, the answer for Chile is different from the answer in the United States, Mexico, or elsewhere. I do think it is important, not just for arbitration but more importantly for liberty, for human freedom, for civil rights, that those challenges are met.
-A couple of weeks ago we learned of the death of profesor Emmanuel Guillard. Would you like to say a few words about his contribution to the world of international arbitration?
-It's a very, very thoughtful, kind, and timely suggestion, Ricardo. I appreciate it, and I'm sure all of his friends would appreciate it too. Emanuel's contributions to international arbitration, both commercial and investment arbitration, were immeasurable. He was an indefatigable advocate, a super arbitrator, a brilliant writer and theorist. He was a great colleague, and a good friend. He'll be missed. I think both on a personal level, and as a professional in a public level by all of us.
 Mr Pablo Ruiz Tagle, Dean of the Faculty of Law of Universidad de Chile.
 Singapore International Arbitration Centre (SIAC) is a not-for-profit international arbitration organisation based in Singapore, which administers arbitrations under its own rules of arbitration and the UNCITRAL Arbitration Rules. https://www.siac.org.sg/
 International Chamber of Commerce (ICC). Arbitration Rules available at https://iccwbo.org/dispute-resolution-services/arbitration/rules-of-arbitration/
 The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the "New York Arbitration Convention" or the "New York Convention", is one of the key instruments in international arbitration. The New York Convention applies to the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration. Available at https://www.newyorkconvention.org/
 The IBA Rules provide mechanisms for the presentation of documents, witnesses of fact and expert witnesses, inspections, as well as the conduct of evidentiary hearings. The Rules are designed to be used in conjunction with, and adopted together with, institutional, ad hoc or other rules or procedures governing international arbitrations. The IBA Rules of Evidence reflect procedures in use in many different legal systems, and they may be particularly useful when the parties come from different legal cultures. Available at https://uk.practicallaw.thomsonreuters.com/4-502-4254?transitionType=Default&contextData=(sc.Default)&firstPage=true
 The Prague Rules on the Efficient Conduct of Proceedings in International Arbitration (“Prague Rules”) are intended to provide a framework and/or guidance for arbitral tribunals and parties on how to increase efficiency of arbitration by encouraging a more active role for arbitral tribunals in managing proceedings. Available at https://praguerules.com/prague_rules/
 An impressive facade or show designed to hide an undesirable fact or condition.
 ICSID was established in 1966 by the Convention on the Settlement of Investment Disputes between States and Nationals of Other States. The ICSID Convention is a multilateral treaty formulated by the Executive Directors of the World Bank to further the Bank’s objective of promoting international investment. It is also available for state-state disputes under investment treaties and free trade agreements, and as an administrative registry. https://icsid.worldbank.org/
 The United Nations Commission on International Trade Law is the core legal body of the United Nations system in the field of international trade law. A legal body with universal membership specializing in commercial law reform worldwide wich aims for the modernization and harmonization of rules on international business. https://uncitral.un.org/
 The Secretariats of the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL) are collaborating on a draft Code of Conduct for Adjudicators in Investor-State Dispute Settlement. The Code is intended to provide applicable principles and provisions addressing matters such as independence and impartiality, and the duty to conduct proceedings with integrity, fairness, efficiency and civility. It is based on a comparative review of standards found in codes of conduct in investment treaties, arbitration rules applicable to ISDS, and of international courts. Available at https://icsid.worldbank.org/resources/code-of-conduct#:~:text=Code%20of%20Conduct%20for%20Adjudicators%20in%20International%20Investment%20Disputes,-The%20Secretariats%20of&text=The%20Code%20is%20intended%20to,%2C%20fairness%2C%20efficiency%20and%20civility.
 IBA Guidelines on Conflicts of Interest in International Arbitration. Available at https://singaporeinternationalarbitration.com/tag/iba-guidelines-on-conflict-of-interests/
 Halliburton Company v. Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd)  UKSC 48. Available at https://www.supremecourt.uk/cases/docs/uksc-2018-0100-judgment.pdf
Ricardo Vásquez Urra, attorney from Universidad de Chile, School of Law; LL.M International Commercial Arbitration, The University of Sydney.