Drawing Adverse Inferences from the Non-production of Evidence

ARBITRATING PARTIES, no less than litigating parties, require evidence to prove their cases and to challenge the factual bases of their adversaries' contentions. That evidence, however, often rests exclusively in the hands of adverse parties, which lack obligation or incentive to divulge harmful information. Arbitrators, moreover, lack 'imperium' and typically cannot compel parties to produce evidence. Judicial assistance also has its limits, as obtaining documents from courts is rarely an effective remedy in international arbitration.' Arbitrating parties thus risk being deprived, unfairly, of the ability to prosecute or defend against claims.