Parties involved in international arbitration and litigation often request from the fact-finders to draw adverse inferences from the non-production of documents. Although it is broadly accepted that judges and arbitrators have the power to do so, in practice, they have adopted a cautious approach and rarely draw negative inferences from the non-production of evidence.
The purpose of this article is to briefly set out when, how and under what circumstances international fact-finders – both judges and arbitrators dealing with Investor-State or State to State cases – have drawn adverse inferences against a non-cooperating party. The article examines the experience of the International Court of Justice, the World Trade Organization, some investment arbitration tribunals, and, in more detail, the practice of the Iran – U.S. Claims Tribunal.
Iurgium [previously Spain Arbitration Review]