Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration

Abstract

This Essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This Essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary litigation that arises in both the United States and the United Kingdom and offers several explanations for recent trends in this regard.

Keywords: international commercial arbitration, arbitration, ADR, federal courts, courts, practice, civil procedure, Federal Arbitration Act (FAA), New York Convention, Panama Convention, motion practice, recognition, enforcement, anti-suit injunction, vacatur, motion to compel, discovery, arbitral award, for