'106. In its Pre-Hearing Brief, the main reasons relied upon by [Claimant] to submit that [Respondent] had ordered those machines prior to July 2002 were that the ordering/delivery process takes longer than three months (especially for [the kind of machinery in question] and unexpected orders), factories are closed during part of August in [country of manufacture], the shipping distance (from [country of manufacture]) must be taken into account and, in any event, the Arbitral Tribunal should draw an adverse inference from [Respondent]'s failure to demonstrate when these orders were made . . . In its Post-Hearing Brief, [Claimant] relies on the additional documents it has produced pursuant to Order No. 7 . . . and insists that manufacturing time was often longer than three months (both in [Claimant]'s own experience of ordering [such] machines and according to typical order times of other . . . manufacturers of similar excavators [in the same country]), in addition to shipping time . . . The Arbitral Tribunal notes that [Claimant] has not filed in this arbitration evidence which would directly prove that the October/November deliveries had in fact been ordered before July 2002. [Claimant] seeks to meet its burden of proof by submitting a constellation of elements which, at least taken as a whole, might sufficiently cast doubt on [Respondent]'s contention that the machines were ordered after 1 July 2002. The evidential value of [Claimant]'s new documents is heavily challenged by [Respondent] . . .

107. [Respondent] also produced new evidence pursuant to Order No. 7 . . . On their face, these purchase documents show that the machines were ordered by [Respondent] after 1 July 2002. The Arbitral Tribunal cannot follow the Claimant when it submits that these documents should be treated like the [X] transaction [concerning competing products delivered in September 2002]. The . . . shipments were delivered (in October and November 2002) later than the [X] transaction (in September 2002). This means that the test for [Claimant] to rebut [Respondent]'s evidence must be higher: the probability that machines delivered in October and November 2002 were ordered before July 2002 is lower and one therefore expects the Claimant to bring specific prevailing evidence if it wishes to challenge [Respondent]'s documents.

108. Despite its efforts, [Claimant] has failed to discharge its onus of proof. There is no sufficient evidence on the record to prove that the October-November 2002 deliveries had been ordered before 1 July 2002 in breach of the Dealership Agreement . . . The Arbitral Tribunal has duly considered the arguments raised by [Claimant] to challenge [Respondent]'s new documents . . . and some questions may indeed arise as to the transaction conducted by [Respondent]. However, it is a fact admitted by the Claimant that the [ship A] arrived on 17 October 2002 and the [ship B] arrived just three weeks later . . . In contrast with the [X] transaction (where the machines arrived on 12 September 2002), the findings in the Partial Award, and in particular that an order must have been placed at least three months prior to delivery, do not enable to conclude that the deliveries in October and November must necessarily have been ordered before July 2002 . . . The Arbitral Tribunal cannot draw inferences which would amount more to speculation and conjecture than properly weighing the evidence on the record.1'

1
[Claimant]’s position is not that [Respondent]’s documents are not authentic, or are in some way forged, but it is its position that notwithstanding these documents, the inference is to be drawn that the orders were placed before 1st July 2002 (and “It is not substantially similar to the [X] transaction, you may recall, where it was our position that despite the documents that have been produced, it is nevertheless clear from the surrounding circumstances that the order must have been placed earlier.”) . . . Yet all of the new documents produced by [Respondent] show that the orders were placed after July 2002 and this is a circumstance that the Arbitral Tribunal cannot simply disregard to retain other adverse inferences insofar as the genuineness of [Respondent]’s documents is not directly and expressly challenged.