'Respondent has argued that:

• Claimant's failure to produce an expert witness and the general managers of the [Hotel A] and the [Hotel B] should give rise to adverse inferences that Claimant could not find an expert that would testify favourably regarding its damages claims and that the two general managers agreed with Respondent's position that the Hotel competes with the [Hotel A] and will compete with the [Hotel B].

Decision: The fact that Claimant did not retain an expert witness and did not call the managers of the [Hotel A] and the [Hotel B] to testify has not resulted in any negative inference. The New York case law cited by Respondent indicates that failure to call a witness with knowledge of important facts related to the particular circumstances of the dispute (such as a physician that has treated a person suing for injuries suffered in an accident1) could warrant a negative inference. However, it would not be appropriate to draw a negative inference from the fact that one party has decided not to rely on testimony by an expert with general knowledge concerning, for instance, the business or industry relevant to the dispute. As to the two general managers, it will simply be noted that neither of the parties decided to call them as witnesses.

• Claimant's paucity of documents in the discovery process should lead to an adverse inference.

Decision: The discovery process has not resulted in any negative inference. The fact that Claimant may have, as alleged by Respondent, produced substantially fewer documents than Respondent is no reason to draw a negative inference. As far as the Tribunal has been able to determine, both parties have complied with the Procedural Orders relating to the production of documents.

. . . . . . . . .

Claimant has argued that:

. . . . . . . . .

• Respondent's failure to identify the exact date of CX-33 should give rise to a negative inference that the date of this document is [date], as alleged by Claimant.

Decision: The Tribunal has not assumed that CX-33 is from [the date mentioned]. The fact that Respondent has not volunteered to identify the date of this exhibit shall not result in any negative inference. It will be noted that Claimant has not made any formal request to the Tribunal for purposes of trying to ascertain the correct date of this exhibit, and that the other documents produced by Respondent and dated [the same date] . . . to which Claimant has related this exhibit appear not to belong together since the layout is different and they are typed with a different typeface.'

1
Mashley v. Kerr, 47 N.Y. 2d 892, 419 N.E.2d 471 (1979).