Originally from: Between East and West: Essays in Honour of Ulf Franke - Hardcover
Between East and West: Essays in Honour of Ulf Franke - Electronic
Negative Inferences: An Arbitral Tribunal’s Powers to Draw Adverse Conclusions from a Party’s Failure to Comply with the Tribunal’s Orders
Bo G.H. Nilsson
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.
About the Author:
Bo G.H. Nilsson heads the arbitration practice at Advokatfirman Lindahl. He is the Chairman of the Swedish Arbitration Association and the Swedish member of the ICC Court. He is a member of the IBA and ILA, and a founding member of the European User’s Council of the LCIA.