Originally from Between East and West: Essays in Honour of Ulf Franke

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I. INTRODUCTION

Obstructive or dilatory tactics are not unusual in arbitral proceedings. In contrast to the public courts, arbitral tribunals lack imperium and except in very few jurisdictions cannot by coercive power force parties to comply with their orders for e.g. document production. Recourse may then sometimes be had to the courts provided that the courts having jurisdiction over the recalcitrant party are willing to assist, but “. . . the delays, expense and uncertainties that arise from applications to national courts ordinarily make this an unattractive or impractical option.” It is, however, widely accepted that arbitral tribunals may draw negative inferences from a party’s failure to comply. It is sometimes suggested that this possibility is a substitute for the coercive powers which arbitral tribunals lack. The present article discusses to what extent negative inferences can and may serve such purpose.

What is an inference? There are many definitions, the one in Black’s Law Dictionary being a “conclusion reached by considering other facts and deducting a logical consequence from them.” A further reading of dictionaries suggests, however, that an inference may follow from the premises somewhat less readily than does a conclusion. Thus, in A Dictionary of English Synonyms one suggested synonym to inference, but not to conclusion, is “guess.” An inference accordingly does not follow from the facts with quite the same force of logic as does a conclusion. The question may be raised to what extent an arbitral award may properly rest on such basis.