NEWSLETTER-2020-metin

211 ARBITRATION LAW In Switzerland , Article 184 (2) of the PILA provides for court assistance. The tribunal, or one of the parties with the consent of the tribunal, may seek assistance from the state judicial authorities when a party refuses to comply with the tribunal’s orders. In such a case, the Swiss courts shall apply the rules on evidence and document produc- tion set out under the CPC. However, it appears that recourse toArticle 184 (2) PILA is very rare in practice 4 . In France , court assistance is available under the French CCP upon leave of the arbitral tribunal, when one of the parties wishes to rely on an official or private deed, or on evidence held by a third party. Therefore, when a document or piece of evidence is owned by, or is in the possession of, a third party to the arbitration, the parties may ask the state court to compel the third party to produce the evidence. In Germany , as with all other three civil law jurisdictions, the ZPO also provides for court assistance as a means of taking of evi- dence. As per Section 1050 of the ZPO, when the parties or third par- ties fail to voluntarily comply with a tribunal’s orders, the parties, with the approval of the tribunal, may request the assistance of state courts for evidence gathering. In practice, rather than imposing sanctions or seeking assistance from the local courts, arbitrators are more inclined to draw adverse inferences from a party’s refusal to produce documents 5 . This author- ity is recognized in some institutional rules, national laws, as well as the IBA Rules and Prague Rules. (see infra 3). A Reflection of Civil Law Perspective: Prague Rules The multinational nature of international arbitration results in initiatives creating custom-made procedural rules for arbitration so that the parties and the practitioners can follow a unified set of pro- 4 See Geisinger, Elliott/ Raneda, Julie: Legislative Framework, International Arbi- tration in Switzerland, A Hanbook for Practitioners (edited by Elliott Geisinger and Nathalie Voser), Second Edition, 2013, p. 7 fn. 15. 5 See also Born , pp. 196-197. For an analysis on adverse inferences, see Van Houtte , Vera: Adverse Inferences in International Arbitration, Written Evidence and Discovery in International Arbitration (edited by Teresa Giovannini and Alexis Mourre), Dossiers VI, Institute of World Business Law, 2009, p. 195, et seq.