The adverse inference in ICSID practice

polkinghorne, michael; rosenberg b. charles;

Domestic courts generally have the ability to hold a litigant in contempt and fine or even imprison the litigant to encourage cooperation with a court order and ensure the orderly administration of justice. Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) arbitration, however, is self-contained and denationalized, operating
outside the realm of domestic courts. As such, unlike domestic courts,
International Centre for Settlement of Investment Disputes (ICSID) tribunals lack the authority to fine or throw a party in the �World Bank penitentiary� to encourage the party to cooperate in the arbitration. A party in an ICSID arbitration therefore risks being unable to fully present its case, as the evidence required for a party to prove its case �often rests exclusively in the hands of adverse parties, which lack obligation or incentive to divulge harmful information�.