NEWSLETTER-2020-metin

210 NEWSLETTER 2020 commonly known evidentiary means, such as documents, facts and expert witnesses, as well as site or subject-matter inspections. In France , as per Article 1467 of the French CCP, unless par- ties agree otherwise, the arbitral tribunal shall take all necessary steps concerning evidentiary and procedural matters. As opposed to Turk- ish and Swiss laws, French law goes one step further and furnishes the arbitral tribunal with the power to enjoin the parties to follow the tribunals’ orders. In Germany , unless the parties agree otherwise, the arbitral tri- bunal shall decide on the evidentiary means and its conduct in such a manner as it considers appropriate. The arbitral tribunal can order document production and summon facts and expert witnesses to attend a hearing for examination 3 . The arbitral tribunal, however, cannot coerce a party to produce documents. Court Assistance Although the arbitrators are generally empowered to make orders for taking of evidence, in most of the cases, the assistance of the court will be required to execute the arbitral tribunal’s orders. Court assis- tance is available in all civil law countries that we examine hereunder. The common approach of Turkey, Switzerland, France and Germany is that the courts cannot order the production of documents against the will of any party. However, different jurisdictions provide different sanctions in the case of non-compliance of court decisions. In Turkey , as per Article 12/B of the IAA if the arbitral tribunal needs assistance in the taking of evidence and in the production of documents, it may request from the civil court of first instance to issue an order to that effect. In such case, the applicable law will no longer be the IAA, but rather the CCP. However, obtaining documents from the parties to the arbitration, or from third parties, might still be chal- lenging because, under the CCP, Turkish courts do not have the power to force the parties to submit evidence or produce documents against their will. 3 Flecke-Giammarco , Gustav/ Bücheler , Gebhard: Arbitration procedures and practice in Germany: Overview, Thomson Reuters Practical Law, February, 2020.