NZCIEL Inaugural Senior Visiting Research Fellowship

2 February 2015

Gary Born

Gary Born - the world’s preeminent authority on international commercial arbitration and international litigation, and renowned author - will hold the New Zealand Centre for International Economic Law’s (NZCIEL) Inaugural Senior Visiting Research Fellowship.

Gary Born clerked for Justice Friendly, US Court of Appeals 2nd Circuit and Justice Rehnquist at the Supreme Court and is the Chair of the 70-person international arbitration practice group at US law firm Wilmer Cutler Pickering Hale and Dorr LLP, based in London. He is uniformly ranked by Euromoney, Chambers, Legal 500 and Global Counsel as one of the leading practitioners in the field. He is one of only two lawyers in the world, and the only lawyer in London, to receive global "starred" status in Chambers rankings for international arbitration. He was recently appointed President of the Singapore International Arbitration Centre (SIAC) Court of Arbitration.

Gary is the author of a number of leading works and numerous articles on international arbitration,  international litigation and other forms of dispute resolution. This includes International Commercial Arbitration (2nd ed, Kluwer, 2014), the leading treatise in the field, which has received the American Society of International Law's Certificate of Merit for High Technical Craftsmanship and OGEMID's Book of the Year award for the 1st edition in 2009. He holds an appointment as an Honorary Professor of Law at the University of St. Gallen and has taught regularly at renowned universities around the world, including Harvard Law School, University of Pennsylvania Law School, Stanford Law School, National University of Singapore, Tsinghua University School of Law and University College London.

While in New Zealand Gary will discuss his recent initiative: a Bilateral Arbitration Treaty regime. This is aimed at addressing the adverse consequences that some businesses are facing because of the structure of the international litigation system, which is all too often time-consuming, expensive and inefficient. At the moment, when businesses negotiate a cross-border contract, they can choose between agreeing to cross-border litigation, international arbitration, or international commercial mediation. However, that requires a willing counterpart. If the parties do not agree on a dispute resolution process, international litigation is the default.  Many businesses do not agree on a way to resolve disputes and, when they do, the agreed dispute resolution clause is often invalid or wide open to interpretation. This happens even during high-stakes negotiations when businesses have  extensive legal advice. The consequence is that businesses are getting caught up in unwanted, unfamiliar, and unfavourable litigation in foreign courts. In addition, foreign judgments can be difficult to enforce.

Gary’s proposed Bilateral Arbitration Treaty regime, or BAT would ameliorate these difficulties. Based on international arbitration principles, the BAT is a treaty that would operate between New Zealand and other states. The BAT would replace international litigation as the default dispute resolution regime between the treaty parties. However, businesses are free to opt out of the BAT regime. The BAT incorporates the neutral principles of international arbitration and makes the most of its flexibility. Businesses are free to choose the procedure to solve their dispute under the BAT. Importantly, the BAT will allow for the likely enforcement of awards in the Treaty states.

Read Petra Butler and Campbell Herbert's paper Access to Justice for Small and Medium Sized Enterprises: a case for a Bilateral Arbitration Treaty regime

As part of the NZCIEL Inaugural Senior Visiting Research Fellowship Gary will participate in the following public discussion forums:

See other Gary Born events in Wellington and Auckland