INTRODUCTION

Most modern instruments governing international adjudication contain provisions dealing with the phenomenon of non-cooperating parties. Comparable clauses may be found in the Statute of the International Court of Justice (Art. 53), in the 1958 International Law Commission's Model Rules on Arbitral Procedure (Art. 25), in the 1998 International Chamber of Commerce Rules of Arbitration (Art. 21(2)), in the 1976 UNCITRAL Arbitration Rules (Art. 28), in the 1985 UNICITRAL Model Law on International Commercial Arbitration (Art. 25) and in the Institute of International Law's 1989 Articles on Arbitration between States, State Enterprises or State Entities and Foreign Enterprises (Art. 3(c)).

Art. 45 covers three points. The first is the principle of non-frustration. In other words, arbitral proceedings will not be thwarted by one side's lack of cooperation. The first sentence of Art. 45(2) expresses this principle. The second point is a rule of evidence. The appearing party's assertions will not be accepted just because the other party does not cooperate and hence does not contest them. This principle is expressed in Art. 45(1). The third point is a procedural rule designed to protect the interests of the non-cooperating party. It is expressed in the second sentence of Art. 45(2).