Felicia Ellsworth: Welcome to In the Public Interest, a podcast from WilmerHale. My name is Felicia Ellsworth.
Jekkie Kim: And I’m Jekkie Kim. Felicia and I are partners at WilmerHale, an international law firm that works at the intersection of government, innovation, and business.
Felicia Ellsworth: For today’s episode, I have the pleasure of interviewing WilmerHale Partner and chair of the firm’s international arbitration group, Gary Born. Gary has been ranked by peers and clients for more than 25 years as a leading international arbitration counsel and is also widely regarded as a leading authority on international commercial arbitration and international litigation. Over the course of his career, Gary has participated as counsel in over 750 international, commercial, and investment arbitrations and has received numerous accolades for his advocacy, including the Global Arbitration Review’s inaugural Advocate of the Year Award. He’s published numerous award-winning works on international arbitration, international litigation, and alternative dispute resolution throughout his career. His treatise on international commercial arbitration has been cited multiple times by the US Supreme Court, the UK Supreme Court, the Indian Supreme Court, and many other national and international courts and tribunals. Most recently, Gary published the 4th edition of International Arbitration, Law and Practice. We invited Gary on the podcast to discuss some of the key trends that he highlights in his recent book, as well as his outlook on the future of international arbitration in 2026 and beyond. While all our episodes of In the Public Interest provide insight into unique, important ways to practice law, this episode especially showcases the depth of international arbitration experience our WilmerHale attorneys possess. Gary, great to see you, and thank you so much for joining us.
Gary Born: Thank you, Felicia. It’s an honor to be here with you.
Felicia Ellsworth: You’ve had an illustrious career as an international arbitration practitioner, author, professor, and also served as an arbitrator. But I do want to start back at the beginning, and I understand that you were raised between France, Germany, and the United States. Could you share a little bit about your early years and where your inspiration to pursue international legal work came from?
Gary Born: Thanks so much. I was what I think in the United States we call an army brat. I grew up on a succession of military bases in France and Germany. I think growing up among people of different cultures, different languages, different legal systems, naturally inclined me towards wanting to persuade people from those sorts of backgrounds. And as it turned out, I spent much of the last 30 years, and I hope the next 30 years, doing exactly that.
Felicia Ellsworth: I understand one of your first experiences in arbitration was alongside one of our firm’s founding partners, Lloyd Cutler, for a pro bono matter where you represented Greenpeace in an arbitration against France after they had sunk Greenpeace’s ship, the Rainbow Warrior. Maybe you could tell us a little bit about what that unique experience was like and how it may have shaped your path, both at WilmerHale and in the field of international arbitration.
Gary Born: You’re right, Felicia. That one was a little bit unusual, and it was a real introduction to the firm. Lloyd Cutler was, of course, peer without equal in both Washington and internationally. Very soon after I arrived at the firm, he announced that a good friend of his, David McTaggart, who was the chairman of Greenpeace at the time, had come to him with a request. He believed that the Central Intelligence Agency was responsible for having blown up the flagship of his environmental protest group, Greenpeace, in order to prevent it from interfering with French nuclear testing in the South Pacific. We at Wilmer had been hired to figure out who at the CIA had done this. It, of course, very soon transpired that the United States had nothing at all to do with that unfortunate incident. And as it happened, the French government instead did. And we quickly changed course. My first assignment as an associate, literally, was to negotiate an international arbitration agreement with the Republic of France, by which we submitted to arbitration the sole question of the quantum, the financial responsibility of France for having, as they conceded, destroyed the vessel in Auckland Harbor. It was a challenge, I must say, as a young lawyer. The Rainbow Warrior was a 45-year-old North Sea trawler with a market value of around 25,000 pounds. We ultimately persuaded the tribunal this was an irreplaceable vessel. It was the product of 20 years of volunteer labor by countless volunteers all over the world. And the only fair way that you could value this vessel was by counting up all the literally countless hours these men and women had spent turning the vessel into the world’s largest sailing vessel, a tribute to Greenpeace’s commitment to the environment as well as to their volunteer spirit. One can question that theory, but it persuaded the tribunal, and they awarded us enough money to buy Greenpeace a very fancy new boat.
Felicia Ellsworth: Well, I don’t know how you’re going to top that one, but since that first case, you’ve served as a lead counsel or counsel in over 750 other international arbitrations and then also been the arbitrator yourself in more than 275. Any other cases that particularly stand out or have shaped the trajectory of your interest in international dispute resolution?
Gary Born: Every case for every client is special. It’s a little bit like one’s children. One can’t have a favorite. But one that I think might interest people is the so-called Abyei arbitration. You can actually see it online in contrast to many international commercial and investment arbitrations. It involved the question of the territorial boundaries of the Abyei area, which was a key aspect of the peace agreement between Sudan—North Sudan, today Sudan—and the southern part of the country, South Sudan. And in a fast-track arbitration that lasted around nine months, we very thoroughly litigated that question. It was a unique experience, in part because it was cast live all around the world, but in particular to South Sudan, whose population was immediately affected by the tribunal’s decision. And one of my favorite photographs, there’s a copy in my office, is of a family in South Sudan in the thatched roof hut, the red dirt floor and a rickety wooden table and an old black and white TV with rabbit ear antenna on the top, watching the live feed of the Abyei arbitration from the peace palace in The Hague. We obtained a mostly favorable decision there, I’m happy to say.
Felicia Ellsworth: You’ve mentioned both international arbitration and international litigation, and I wonder if you could explain what it is about international arbitration as distinguished from litigation that makes it so attractive to clients, and particularly commercial clients.
Gary Born: International arbitration is favored for what I call the six Es. It aspires to be, and not always, but very often is, more expert, more efficient, more expeditious, more even-handed, more enforceable, and in today’s post-COVID world, more electronic than the alternatives, and in particular, the alternatives being national courts in many jurisdictions. We don’t have time to walk through each one of the six Es, but at the heart of them is the fact that being a consensual process that parties must agree to mutually in order to participate in, arbitration entails the selection of the arbitrator, the decision maker, by the parties after the dispute has arisen. And that brings with it a number of benefits, both in terms of expertise, enforceability, and other aspects of the six Es. It’s for that bundle of reasons that in many cases, international businesses strongly prefer international arbitration in their contracts with one another, but in particular, their contracts, their dealings with sovereign states around the world.
Felicia Ellsworth: Let’s talk a little bit about what you are seeing in terms of trends in international dispute resolution by referencing back to a speech that you gave almost 10 years ago to the New York International Arbitration Center. The title of the speech that you gave, “Is Winter Coming?” and you compared the challenges facing international arbitration to those facing the Seven Kingdoms in Game of Thrones, and you warned that there were people in a variety of countries coming from different political directions that were seeking to dismantle international arbitration and have it subject to increased state oversight. So here we are 10 years later, has winter come?
Gary Born: That’s a great question, and I think it’s still a timely question today. There remains, and I think one sees it with the current administration in the United States, a hostility to consensual means of dispute resolution, particularly in the investment space, a sense of if one has the power to impose a solution, why agree to some sort of consensual adjudicative process? That same mindset prompted the question 10 years ago, and the same mindset, in a sense, requires the question to be asked and answered again today. Winter has not come. The number of investment arbitrations has remained steady, if anything, increasing. The popularity of international commercial arbitration as opposed to investment arbitration has certainly increased. It requires continual revolution, in a sense, continual reinventing of the process to address users’ correct concerns about cost and delays and other aspects of the process. But the international arbitration institutions, practitioners have risen to those concerns, those requirements, and international arbitration has continued to flourish. That’s not something that one can be complacent about. The concerns are eternal in a sense, and one always has to worry about whether winter will be coming. But I think with careful attention to how practices are conducted, how arbitrations are conducted by counsel, by arbitrators, and most importantly, by clients, winter won’t come, or if something like it does come, we will all be well-insulated and well-protected against its scourges.
Felicia Ellsworth: Here in 2026 is a moment of significant global geopolitical turmoil. What are you seeing in terms of how clients’ needs may be shifting with respect to their approach to international dispute resolution? And what do you expect to see beyond this year?
Gary Born: I think the global uncertainties, however one might characterize their source, have made international dispute resolution more important than ever. The uncertainties caused by government regulatory measures, the uncertainties caused by dramatic shifts in government policy, the uncertainties caused by how counterparties react to those sorts of activities, and how markets, whether they’re energy markets or shipping markets or insurance markets, in turn react to those uncertainties, have all made it more likely that there will be both contractual disputes between international businesses and disputes between investors and host states. The method of resolving those disputes often is some sort of international arbitration. And as a consequence, I think it has become both a busier field, but also a field with greater pressure, clients under greater pressure themselves with higher expectations. The imposition of sanctions can affect the arbitral process, just like it affects other aspects of business very significantly and has made the field more challenging. I think the likelihood of resort by parties to national courts to challenge the results of arbitrations or to try to stop ongoing arbitrations has also increased as the stakes that are at issue in the game have become higher. Put very simply, I think the field has become busier, messier, and more difficult.
Felicia Ellsworth: Well one of the things that I know practitioners frequently turn to are some of the writings that you’ve published. And you recently published a book, International Arbitration, Law and Practice, 4th edition. And I understand you’re revising your treatise on international commercial arbitration. So, I wondered if you could tell us a little bit about what insights readers can expect to gain from your book and potentially the revised treatise when it’s done.
Gary Born: The book’s aim is to be a sort of primer, a 300-page primer, but nonetheless a primer on international commercial arbitration, dealing with the entire process, beginning with international arbitration agreements, how you interpret them, how you enforce them, how you challenge their validity. Moving on through international arbitration procedures, proceedings, how you select tribunals, how you challenge arbitrators, how you obtain discovery, how you address choice of law, and how you conduct a hearing, and then concluding in the final third of the book with international arbitration awards, what their content is, how you challenge them, how you enforce and recognize them. The focus throughout the book is on international sources, in particular the so-called New York Convention, but also the UNCITRA model on international commercial arbitration and leading institutional rules around the world. The aspiration of the book is to both introduce newcomers to the field, but also to provide a ready and digestible source of reference to those who are experienced in the field but need quick and hopefully correct, hopefully authoritative answers on particular issues.
Felicia Ellsworth: Getting a little closer to my home, I understand you also recently published a book about international law in US courts. I’m wondering if you could speak a little bit about what’s covered in that book and how it relates to some of what we’ve been discussing today in terms of the different roles of nations’ courts versus international arbitration agreements.
Gary Born: Unsurprisingly, I’d love to. The book, International Law in American Courts, builds on an earlier casebook and commentary that I wrote, International Civil Litigation in U.S. Courts. But, in contrast, this book is very much a focus on the status and role historically and today of international law in American courts. The book’s thesis is that the framers at the end of the 18th century took great care to ensure that international law had the status of federal law in the Constitution. And by international law, I mean what the framers called the law of nations. That included both private and public international law. Public international law historically in the United States was viewed as federal law and also viewed as directly applicable in US courts without the need for statutory or other implementation. Over the last 30 years, a number of scholars and some courts have challenged that view, particularly with respect to private international law, but also public international law. And a number of courts, both lower courts and also some of the justices on the Supreme Court, have accepted that sort of revisionist thinking. My book tries looking in much more detail at the historical record, but also more recent interests of the United States to in turn challenge the revisionist thinking and take us back to how the framers saw the law of nations. They regarded the rule of international law as central to the nation’s future, and they ensured in Articles 3 and 6 of the Constitution that international law would be able to play that role that they envisaged.
Felicia Ellsworth: Well, it sounds like a fascinating read, so I’ll be sure to pick it up. Gary, we’re at the end of our time here, but I wanted to thank you so much for taking the time. I have learned a lot today, and I know that our listeners will as well. We really appreciate you sharing your thoughts and insights and joining us on In the Public Interest.
Gary Born: Thank you so much, Felicia. Thank you for having me, and I hope we can do it again sometime.
Felicia Ellsworth: That would be great. Thank you. And thank you to our listeners. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate, and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please e-mail them to us at [email protected].
Jekkie Kim: For our WilmerHale alumni in the audience, if you haven’t already, please join our alumni center at alumni.wilmerhale.com so we can stay better connected. Special thank you to the producers of this episode, Sara Orton and Wesley Schmidt. Sound engineering and editing by Bryan Benenati, marketing by Allison Khan and Alexandra Thimble, all under the leadership of executive producers Jake Brownell, Kaylene Khosla, and Arpi Youssoufian. Thank you for listening.
Felicia Ellsworth: See you next time on In the Public Interest.
