Delivering the keynote address on “International Arbitration: Past, Present & Future”, Gary Born, Partner at King & Spalding, at the Eurasian Arbitration Week 2026 in Astana, presented a comprehensive historical account of international arbitration, challenging the perception that arbitration is either a modern phenomenon or a dispute resolution mechanism developed primarily by Western legal systems. Instead, he argued that arbitration has been an enduring feature of human civilisation for nearly 4,500 years, evolving across cultures, religions and legal traditions while remaining anchored in the principle that parties should be free to choose neutral decision-makers to resolve their disputes.
The session was moderated by Thomas Krümmel, Chairman of the International Arbitration Centre (IAC), who welcomed Gary Born as one of the world’s leading arbitration practitioners, highlighting his contributions as counsel, arbitrator, academic and author whose work has significantly shaped the development of modern international arbitration.
Introducing the structure of his keynote, Gary explained that he would examine international arbitration through the lens of its past, present and future, observing that understanding its long historical development was essential to appreciating both its contemporary significance and the challenges that lie ahead.
From “Arbitration and Peace” to the Modern Rule of Law
Gary Born began his address with an image of Paul-Albert Besnard’s painting Arbitration and Peace, displayed in the Peace Palace at The Hague. The artwork, originally created for the Permanent Court of Arbitration, depicts peace emerging through the resolution of disputes by impartial decision-makers rather than by force. He explained that while the painting now hangs in the International Court of Justice under the title Justice and Peace, its original symbolism remains significant, illustrating arbitration’s enduring role in promoting peaceful settlement of disputes.
Using the painting as a metaphor, Gary observed that the relationship between arbitration and courts has long been characterised by debate over who ultimately dispenses justice, a theme that has repeatedly resurfaced throughout arbitration’s history.
Arbitration Across Civilisations
Rejecting the notion that international arbitration is a recent legal innovation, Gary traced its origins to some of the earliest recorded civilisations. Referring to archaeological evidence from approximately 2700 BCE, he described one of the earliest known interstate arbitrations in Mesopotamia, where a ruler resolved a territorial dispute between neighbouring principalities. Around the same period, private landowners submitted disputes concerning water rights to arbitrators chosen by the parties rather than local rulers, demonstrating that consensual dispute resolution existed alongside early systems of government.
According to Gary Born, these examples established principles that continue to define arbitration today: parties voluntarily selecting trusted and impartial decision-makers to determine their disputes.
Moving through history, he demonstrated that arbitration developed independently across diverse legal traditions. He referred to arbitration clauses contained in treaties between Athens and Sparta, illustrating how rival city-states agreed to submit future disputes to arbitration rather than armed conflict. He also cited Menander’s play Epitrepontes, also known as The Arbitration, which portrayed private parties resolving domestic disagreements through arbitration, reflecting the institution’s acceptance beyond interstate relations.
Gary further examined arbitration’s role during the medieval period, referring to treaties between European sovereigns, including agreements involving the Swiss Confederation and the French Crown that provided for disputes to be resolved by arbitrators appointed by each side. Similar traditions, he noted, existed across Africa, Asia and Latin America, where respected community members frequently resolved disputes chosen by the disputing parties rather than imposed by political authorities.
Religious legal traditions likewise embraced arbitration. Gary Born observed that Jewish communities relied extensively on arbitral mechanisms because they often lacked equal access to state courts, while Islamic tradition similarly recognised arbitration as an important means of dispute resolution. Referring to early Islamic history, he noted that one of the Prophet Muhammad’s earliest recorded public roles was resolving the dispute over the placement of the Black Stone in the Kaaba through arbitration, while the Quran itself contains multiple references to arbitration between communities.
Turning to the development of commerce, Gary explained that arbitration became central to medieval merchant practice. Traders operating across jurisdictions preferred arbitrators possessing commercial expertise and familiarity with mercantile customs rather than local judges unfamiliar with international trade. Quoting seventeenth-century merchant law scholar Gerard Malynes, he observed that merchants voluntarily entrusted disputes to impartial individuals who would determine controversies according to equity, commercial custom and conscience with “brevity and expedition.”
Although written in 1622, Gary remarked that Malynes’ explanation of arbitration remains remarkably relevant today. Businesses continue to choose arbitration because it enables disputes to be resolved by neutral experts capable of delivering efficient and commercially informed decisions.
Arbitration’s growth beyond Europe
The keynote then turned to the emergence of arbitration in North America. Gary referred to one of the earliest recorded arbitrations in colonial America dating back to 1680, where parties agreed to appoint arbitrators and, where necessary, an umpire to resolve their dispute. He also cited eighteenth-century newspaper publications advocating arbitration as a faster and less expensive alternative to lengthy court proceedings.
Illustrating arbitration’s acceptance among the founders of the United States, Gary referred to George Washington’s will, which expressly provided that disputes concerning his estate should be resolved through arbitration.
He also highlighted the landmark Alabama Arbitration of 1872, in which the United States and the United Kingdom peacefully resolved claims arising from the American Civil War before a five-member arbitral tribunal seated in Geneva. Compliance with the award by both governments, he noted, demonstrated arbitration’s capacity to resolve even politically sensitive disputes between major powers without resorting to armed conflict.
The “Dark Chapter” in Arbitration’s history
Despite arbitration’s long historical pedigree, Gary Born emphasised that its development had not been linear.
Describing the nineteenth and early twentieth centuries as a “dark chapter” in arbitration’s history, he explained that courts in several jurisdictions became deeply sceptical of arbitration’s legitimacy. Referring to judicial decisions from both the United States and France, he observed that arbitration was frequently characterised as incapable of delivering genuine justice.
One influential American judgment described arbitral awards as providing only “rough justice”, reasoning that arbitrators lacked many of the procedural powers available to courts, including compelling witnesses and ordering production of documents. Similar concerns emerged in France, where courts interpreted procedural legislation so narrowly that agreements to arbitrate future disputes became effectively unenforceable unless the arbitrators had already been specifically identified when the contract was concluded.
According to Gary, these approaches reflected a broader paternalistic belief that parties could not safely be trusted to determine in advance how future disputes should be resolved.
National Socialist Germany’s opposition to Arbitration
Gary Born identified one of arbitration’s most troubling historical periods in the policies adopted by National Socialist Germany during the 1930s. He referred to directives discouraging arbitration involving public entities while strongly discouraging private arbitration, explaining that the regime believed disputes should remain under the exclusive authority of state-controlled courts to ensure that judicial outcomes reflected National Socialist ideology.
In his view, these policies represented a direct rejection of arbitration’s defining characteristics party autonomy, neutrality and independent adjudication by decision-makers chosen by the parties themselves.
Building the modern framework for International Arbitration
Turning to the modern era, Gary described the twentieth century as the period during which international arbitration acquired the legal framework that supports it today.
He identified the 1923 Geneva Protocol on Arbitration Clauses as the first international instrument requiring recognition of agreements to arbitrate future disputes. This was followed by the 1927 Geneva Convention on the Execution of Foreign Arbitral Awards, which addressed the international recognition and enforcement of arbitral awards.
Gary described the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) as the decisive turning point in the development of modern international arbitration. Bringing together the principles embodied in the earlier Geneva instruments, the Convention requires contracting States to recognise arbitration agreements and enforce foreign arbitral awards, subject only to limited exceptions.
Although initially attracting relatively few ratifications, Gary observed that the Convention has since achieved near-universal acceptance and today constitutes the cornerstone of international commercial arbitration.
He also highlighted subsequent developments, including the establishment of the ICSID Convention for investment arbitration and the adoption of the UNCITRAL Model Law on International Commercial Arbitration (1985), which has served as the basis for arbitration legislation in jurisdictions around the world and contributed significantly to harmonising national arbitration laws.
Courts, Legislatures and Users Reinforced Arbitration’s Growth
Gary Born emphasised that arbitration’s remarkable expansion has resulted not only from international treaties but also from sustained support by national legislatures, courts and arbitral institutions.
He referred to decisions of the United States Supreme Court recognising that the growth of international commerce required courts to move beyond historical hostility towards arbitration and give effect to international obligations favouring arbitral dispute resolution. Similar judicial approaches emerged across multiple jurisdictions, reinforcing the enforceability of arbitration agreements and awards.
This legal framework, Gary explained, encouraged the establishment and rapid growth of arbitral institutions worldwide. Increasing caseloads, he observed, reflect the confidence that businesses, investors and States continue to place in arbitration as a neutral and reliable mechanism for resolving cross-border disputes.
The keynote also highlighted arbitration’s expansion into new areas that were once considered unsuitable for arbitral resolution. Referring to the growing work of the Court of Arbitration for Sport (CAS), the World Intellectual Property Organization (WIPO) and ICSID, Gary noted that arbitration now routinely resolves disputes involving sport, intellectual property and foreign investment, illustrating both its flexibility and its continuing relevance to an increasingly interconnected global economy.
Challenges before International Arbitration
Having traced arbitration’s historical development and the legal framework underpinning its modern success, Gary turned to what he described as the challenges confronting international arbitration today. While noting that arbitration has experienced unprecedented growth in recent decades, he cautioned that opposition to international arbitration continues to emerge in different forms across jurisdictions.
As an illustration, Gary Born referred to Decision 24 of the Andean Commission on the Treatment of Foreign Capital, which provided that agreements concerning foreign investment should not withdraw disputes from the jurisdiction of the host State’s national courts. According to him, the measure reflected a desire to preserve national sovereignty and regulatory control over disputes involving foreign investment, standing in contrast to the international framework established under the New York Convention.
Gary also referred to the 2010 Frankfurt Declaration, in which a group of law professors criticised investor-State arbitration on grounds including alleged lack of transparency and concerns regarding the balance between investor protection and State sovereignty. He noted that these criticisms became part of the broader international debate surrounding investment arbitration.
The keynote further highlighted examples of political resistance to arbitration. Referring to former Venezuelan President Hugo Chávez, Gary recalled his public criticism of ICSID after Venezuela faced adverse investment awards. He similarly referred to legislative developments in Russia requiring certain corporate disputes to be referred only to arbitral institutions approved by the Russian Federation, describing this as another example of increasing state control over dispute resolution.
Gary also pointed to criticism of investment arbitration voiced during the renegotiation of the North American Free Trade Agreement, observing that such opposition reflected a preference in some quarters for domestic adjudication over independent international tribunals.
Within Europe, he discussed the judgments of the Court of Justice of the European Union in Achmea, Komstroy and related cases, which held that arbitration agreements contained in intra-EU bilateral investment treaties were incompatible with European Union law. According to Gary, these decisions reflected continuing debates regarding the relationship between international arbitration and domestic or regional judicial authority.
He also referred to concerns expressed within England that the growing popularity of arbitration could reduce opportunities for English courts to develop the common law, illustrating that scepticism towards arbitration is not confined to any one region.
Against this backdrop, Gary observed that the future of international arbitration would ultimately depend upon whether States continue to support an international legal order founded upon independent dispute resolution or instead increasingly favour exclusive judicial control.
Looking to the future
Turning to the future of arbitration, Gary Born posed what he described as the defining question facing the international arbitration community: whether the future would be shaped by an international rule of law, reflected in judicial support for arbitration, or by increasing restrictions favouring exclusive control by domestic courts.
To answer that question, he referred to a Canadian judicial decision recognising arbitration as “a fundamental right of citizens and an expression of their contractual freedom” rather than an infringement upon the State’s judicial monopoly.
According to Gary, this principle reflects the philosophical foundation of arbitration. Individuals are free to determine not only whether to enter commercial relationships but also how disputes arising from those relationships should be resolved.
Why Arbitration will continue to grow
Moving from principle to practice, Gary argued that arbitration possesses several enduring advantages that will ensure its continued growth.
He described arbitration as more expert, explaining that parties are able to select decision-makers possessing specialised knowledge relevant to their disputes, unlike national court systems where judges are assigned without reference to subject-matter expertise.
It is also more efficient and more expeditious, he observed, noting that arbitral institutions have introduced emergency arbitration, expedited procedures and early dismissal mechanisms that have significantly improved the speed of proceedings over the past two decades.
Gary Born further described arbitration as more even-handed, referring to internationally recognised standards requiring arbitrators to remain independent and impartial. Unlike certain national court systems where concerns regarding judicial independence or corruption may arise, arbitration provides established procedures for disclosure, challenge and removal of arbitrators where questions of impartiality arise.
Another significant advantage, he argued, is enforceability. Referring to the New York Convention, Gary noted that arbitration agreements and arbitral awards enjoy a unique international enforcement regime extending across more than 170 jurisdictions, giving arbitration a practical advantage over litigation before national courts.
Finally, he observed that arbitration has become increasingly electronic, with virtual hearings and digital case management becoming integral features of international proceedings following the COVID-19 pandemic.
Taken together, these characteristics, which he collectively described as the “six Es”, explain why businesses and forward-looking States continue to choose international arbitration.
Arbitration as a Fundamental Freedom
Returning to the broader philosophy underpinning arbitration, Gary argued that arbitration ultimately rests upon the principle of contractual freedom.
Referring once again to the writings of Gerard Malynes, he observed that arbitration has long been understood as an exercise of the parties’ free will. Societies recognise individuals’ freedom to enter contracts, establish businesses and create legal relationships. According to Gary, that same freedom necessarily includes the ability to determine how disputes arising from those relationships will be resolved.
In support of this proposition, he referred to decisions of the German Federal Labour Court, which recognised that agreements to arbitrate fall within constitutional protections afforded to freedom of contract and the free development of personality. He also noted historical constitutional recognition of arbitration in France, demonstrating that arbitration has long been viewed as compatible with constitutional guarantees.
Expressing optimism about arbitration’s future, Gary concluded that its continued success would rest not only upon its practical advantages but also upon the enduring importance of party autonomy and contractual freedom.
Strengthening the Arbitration Ecosystem
Following the keynote, moderator Thomas Krümmel invited Gary Born to reflect on the future development of the International Arbitration Centre.
Asked what advice he would offer the IAC for the coming years, Gary first encouraged the institution to continue its present course, observing that its growing international profile and increasing participation at conferences indicated that it was moving in the right direction.
Secondly, he stressed the importance of developing what he described as an arbitration “ecosystem”. Successful arbitration centres, he explained, require close cooperation between arbitral institutions, legislatures, national courts, universities and bar associations. Education and dialogue remain essential to dispelling misconceptions surrounding arbitration and strengthening confidence in the system.
Finally, Gary encouraged continued cooperation with arbitral institutions in other jurisdictions, observing that collaboration and exchange between institutions would contribute significantly to the IAC’s continued development.
Responding to a question regarding disputes involving artificial intelligence, digital assets and emerging technologies, Mr. Born observed that while the subject matter of arbitration continues to evolve, the institution itself remains remarkably adaptable. Drawing a comparison with some of the earliest recorded arbitrations concerning territorial boundaries and water rights, he remarked that today’s disputes may involve artificial intelligence or cryptocurrency, but the essential character of arbitration remains unchanged because “it is in the hands of the parties.”
Concluding the session, Mr. Born reiterated that arbitration’s resilience over more than four millennia demonstrates its enduring value. While the disputes submitted to arbitration will continue to evolve alongside commerce and technology, he expressed confidence that party autonomy, neutrality and independent adjudication will ensure that international arbitration remains central to the peaceful resolution of cross-border disputes.
