ERDEM-NEWSLETTER-2018-metin

145 ARBITRATION LAW The party against which adverse inferences may be drawn should be given an opportunity to object to the request, as a simple appli- cation of the rights of defense. As the adverse inference is based on the reversal of burden to produce documents, it is important that the burden is imposed on a party that has the ability to discharge it 5 . Adverse inferences may give rise to the conclusion that the re- questing party was trying to establish proof based on a document in the other party’s possession and would be deemed to have sufficiently proven the same. In other words, even though the requesting party did not have access to, nor had it been able to make reference to the rel- evant document within the scope of the document production requests, it would have been deemed that they fulfilled their burden of proof. However, as this is an indirect form of evidence, adverse inference has limited evidentiary weight, and must be assessed together with the totality of the evidence 6 . Additionally, as a common observation reported amongst practi- tioners, arbitral tribunals are reluctant to explicitly draw adverse infer- ences in their arbitral awards, and omissions to produce documents influences the assessment of evidence without reference to adverse inferences in arbitral awards 7 . The reasoning of this practice may be the fear that these adverse inferences could be problematic in annul- ment or enforcement proceedings 8 . Considering that the annulment or the enforcement of arbitral awards depends on the relevant practices of national courts, this common observation is welcomed. 5 Vera van Houtte : Adverse Inferences in International Arbitration, in. Institute Dossier VI, Written Evidence and Discovery in International Arbitration, p. 202, for further information on the issue of rights of defense, please see Vera van Houtte, p. 208 et seq. 6 Vera van Houtte , p. 214. 7 Marghitola, Reto : Document Production in International Arbitration, In- ternational Arbitration Law Library, Volume 33, Kluwer Law International 2015, p. 174. http://www.kluwerarbitration.com/document/kli-ka-marghitola- 2015-ch09?q=%22document%20production%22 (Access date: September 2018). 8 Marghitola , p. 174.