Journal Article

Adverse inferences in investor–state arbitration

Menalco J Solis

in Arbitration International

Published on behalf of The London Court of International Arbitration

Volume 34, issue 1, pages 79-103
Published in print March 2018 | ISSN: 0957-0411
Published online January 2018 | e-ISSN: 1875-8398 | DOI: https://dx.doi.org/10.1093/arbint/aix029
Adverse inferences in investor–state arbitration

More Like This

Show all results sharing these subjects:

  • Arbitration
  • Company and Commercial Law
  • Competition Law
  • Employment and Labour Law
  • Settlement of Disputes

GO

Show Summary Details

Preview

Abstract

This article surveys investor–state arbitration decisions regarding the use of adverse inferences. There is a jurisprudence constante on the treatment of the adverse inference. Absent an agreement by the parties, international investor–state arbitrators have the inherent authority to draw adverse inferences from a party’s unjustified non-compliance with an order to produce information. The authority derives from the actual authority in admitting and weighing the evidence, and in establishing the arbitration procedure. Despite the authority, investor–state arbitration awards have been reluctant to emphasize a recalcitrant party’s failure to cooperate in the production of evidence as a basis for the award. Understanding that adverse inferences are inferior quality evidence, the particular inference can be attenuated by the evidentiary record or rendered irrelevant altogether because the underlying evidence that was not produced is determined does not tend to support a material fact at issue inter partes. In any event, a tribunal need not rely on adverse inferences if it can arrive at a decision on an independent basis.

Journal Article.  15534 words. 

Subjects: Arbitration ; Company and Commercial Law ; Competition Law ; Employment and Labour Law ; Settlement of Disputes

Full text: subscription required

How to subscribe Recommend to my Librarian

Users without a subscription are not able to see the full content. Please, subscribe or login to access all content. subscribe or login to access all content.