Arbitrator of the World

I’ve long wanted to understand and maybe write about international commercial arbitration. It’s of enormous economic importance and hugely interesting as a matter of legal theory—especially if you’re skeptical of legal positivism (as I am) and fond of contractual arrangements and competition among legal systems (ditto). The American system, post-New Deal, traps commercial actors in multiple hostile legal forums: that’s Erie Railroad, which is organized hell. The international commercial system seems to be that parties choose an impartial, exclusive forum by contract, which sounds heavenly by comparison. How exactly does that work? Unfortunately I’m no expert, and unlikely to become one.

For one thing, international arbitration isn’t like present-day ConLaw, which any halfwit can pick up in an afternoon. It’s a vast, complicated field that requires years of study and serious thought. For another thing, arbitration law is party-and practice-driven. You can’t just study it in a library; you actually have to be an advocate and arbitrator. (The best people wear both hats at different times, which is one of the many interesting and terrific things about arbitration). Few people are any good at the deep legal theory required in this field. Fewer still can match that level of insight with advocacy skills. Even fewer can cope with the stress—Hong Kong today, Bermuda next week, then London. Eighteen hours a day, week after week. That ain’t me, on any of the forgoing counts. But it’s someone I know.

The undisputed champion of international commercial arbitration—“International Arbitrator of the Year” several times over, winner of countless other awards, author of the leading textbook in an intensely competitive field—is Gary Born, who runs the arbitration practice for WilmerHale. To my great good fortune I’ve known Gary since 1991, when I was working at a public interest law firm and Gary, a young lawyer at what was then Wilmer, Cutler & Pickering, offered his pro bono work on an amicus brief in a “hate speech” case.

(To illustrate how good this guy is, here’s what happened: The ordinance at issue penalized the display of symbols “which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender” (emphasis added). The defendant had burned a cross; his lawyers attacked the statute on the grounds of “overbreadth,” a theory beloved by HLS FedCourts mavens but nonetheless preposterous, once you think about it for five minutes. What’s wrong here, Gary argued, is that even if government can prohibit an entire class of speech, it can’t draw content- or viewpoint-based distinctions within that class. Sure enough, that’s the theory on which Justice Scalia’s majority opinion decided R.A.V. v. St. Paul. A concurrence harrumphs about the majority’s reliance on an “untried theory” never heard of before. It’s now standard doctrine.

Ever since that let’s-do-free-speech-law-on-the-side exercise, we’ve remained good friends. Staying in touch has been aided in no small measure by Gary’s endearing habit of promptly returning calls and e-mails—deeply impressive given his schedule; absurdly so, considering it’s probably 4am in the Fiji Islands or wherever he’s arbitrating at the moment. But I’ve seen altogether too little of the man; and so I was delighted to learn of his extended interview with the Global Arbitration Review.

It really is worth a look. It gives you a glimpse of the exotic arbitration world and a good impression of Gary Born’s self-effacing humor (the “Arbitrator of the World” business is a running joke among him and his friends). It’s also a window into a big piece of legal history—Gary’s clerkships for Henry Friendly and William Rehnquist; his legendary confrontation with then-Senator Biden during the Bork conformation; his stumbling into the international law business by representing Greenpeace (and how is that for a libertarian). But it’s not just reading for the old(er) and wistful among us; there’s lots of stuff that matters now.

“It is a matter of substantial concern,” Gary Born remarks,

that the United States has the oldest arbitration statute, the Federal Arbitration Act, dating to 1925 and not meaningfully altered since then. And the last thing many counsel would want is to open that law up for revision by Congress because of the risks of politicisation. … Despite this, US courts have done a reasonably good job in making sense of a 90-year old statute.

Oh: the most quintessentially commercial republic seems incapable of playing to its global advantage or even of adapting to a changed international world. As Gary Born surely understands, his almost casual remark raises big questions (Henry Friendly’s enduring questions, as it happens). Should rule-of-law supporters insist that Congress should at long last get back into the business of legislating (as many do)—or that it had better not? Should one agitate for textual judicial interpretation—or acknowledge the fact that evidently, things sometimes work best when courts create a federal common law (under the FAA or, similarly, the Sherman Act) with essentially no legislative warrant?

It would be good to have Gary around to help sort this stuff out. But he’ll probably be on some tobacco arbitration in the Marshall Islands