'201. The Claimant rejects the "Technical Expertise Report" given that its introduction with the Respondent's Submission … constitutes a lack of procedural loyalty as it constitutes an attempt to circumvent prior decisions of the Arbitral Tribunal (whereby the Tribunal stated it would not rule on the issue of the appointment of a Tribunal-appointed expert unless it deemed it necessary following the submission of party-appointed expert reports) and introduces in the proceedings a report drafted by a court-appointed expert without affording [Claimant] the possibility of being heard … Indeed, the Claimant states, the Respondent has not provided any evidence that it was notified of the commencement of proceedings in [state X] by [Respondent] or of the nomination of the experts that drafted the Technical Expertise Report. It has accordingly been denied the chance to challenge the jurisdiction of the [state X] court and the appointment of the experts and to participate in the investigations by the experts … Moreover, the Claimant states that it was shown at the hearing that counsel for [Respondent] confirmed that the purpose of [Respondent]'s application to the [state X] courts for the appointment of an expert was to react to the Tribunal's refusal to appoint an expert at the time of the issuance of Procedural Order No. 1 and to challenge [Claimant]'s statements with a judgment stating that the [vehicles] were not fit for their purpose ... The Claimant contends that [Respondent]'s application to the [state X] courts was therefore not only an attempt to circumvent the decision of the Arbitral Tribunal, but also an attempt to avoid the jurisdiction of the Arbitral Tribunal on the technical dispute between [Claimant] and [Respondent], i.e. on the very merits of this case. The Claimant also argues that counsel for [Respondent] confirmed during the hearing that as a petitioner to the [state X] courts, [Respondent] was fully informed of all the steps leading to the appointment of the experts, and that: (i) the first attempt by [Respondent] to inform [Claimant] took place … after the experts had been appointed, the expert determination carried out and the expert report issued; and (ii) [Respondent] was aware that [Claimant] was never informed of the existence of the Technical Expertise Report before its filing in this arbitration …

202. In particular, the Claimant makes the case that counsel for [Respondent] and the authors of the Technical Expertise Report confirmed that [Respondent] and the experts never tried to get in contact with [Claimant] during the expert determination or before the issuance of the report … This purportedly confirms that [Respondent]'s intention in this expert determination was to obtain a report without ever putting [Claimant] in a position to be present during the investigations carried out by the experts and to present its comments and observations as to the work and conclusions of the experts …

203. [Claimant] states that it has demonstrated that the Technical Expertise Report cannot have res judicata effect as it allegedly clearly appeared during the hearing that: (i) the judgment … is an "emergency" judgment, issued in fast track proceedings for interim measures …; (ii) the [state X] court did not examine the Technical Expertise Report, or even hear the authors of this report … In addition, a report cannot have a res judicata effect …

204. The Claimant states that the "Technical Expertise Report" should be considered a party-appointed expert report within the meaning of Section 3.4 of Procedural Order No. 1. Yet it does not comply with the requirements set forth in or [sic] Article 5 of the IBA Rules on the Taking of Evidence in International Commercial Arbitration. In particular, the Technical Expertise Report does not contain a description of the method or tests and controls used in arriving at the conclusions set forth in the report and does not contain any of the documents allegedly examined by the experts. As a result the results cannot be verified and discussed. In addition, the independence of the experts as well as their background, qualifications, training, experience and the participation of two out of three experts cannot be verified. For these reasons the "Technical Expertise Report" should be rejected and declared inadmissible …

205. The Claimant additionally argues that the conclusions in the "Technical Expertise Report" should be completely disregarded. First, this is because, as already argued, it does not contain a description of the methodology applied, or produce or reference the documents used or created in order to reach the conclusions … Second, it is because it contains a number of gross scientific mistakes that raise serious questions as to the experts' background and competence. For example, the experts divided a load expressed in metric tons by the traction power of the [vehicle] in order to calculate the "effective traction power" which raises doubts as to whether the experts have received serious scientific training … Third, the Claimant argues, many of the statements contained in the "Technical Expertise Report" reveal that the experts have grossly misunderstood the basic design of the [vehicles], and of the [vehicles'] parts and components … despite this being explained in the design documentation in [Respondent]'s possession, in the technical specifications attached to the Contract and in the maintenance and training documents handed over by [Claimant] to [Respondent] … It can also allegedly be understood through the examination of the [vehicles] and their components and parts … The Claimant states that it is therefore likely that the experts appointed by the [state X] court did not examine the documentation nor the [vehicles] and their report should therefore be rejected …

206. The Claimant confirms the above position with the filing of its Post-Hearing Brief following the hearing. It argues that it clearly appeared at the hearing that [two of the authors of the report] were absolutely incapable of explaining how the technical work had been distributed amongst the three appointed experts, and how they organized their presence on-site to carry out the expert determination. For instance, the Claimant explains that when asked repeatedly about "the part played by each one" in the investigations and drafting of the report, [the two experts] were unable to explain which one of them had investigated which issue … Similarly, the experts allegedly disagreed as to whether they had always been together when they had visited [Respondent]'s premises: while [one of them] said "[w]e were always present together along with our third colleague", this statement was radically contradicted by [the other], who said "on most visits and comparisons there were all three of us", and confirms that he was absent on some visits … The Claimant states that the authors of the Technical Expertise Report were unable to explain the observations, measurement and tests carried out in order to reach the most important conclusions presented in the report. To the contrary, the Claimant states, the witnesses ultimately admitted that they had not carried out any observations, measurement and tests experiments in support of their key conclusions. The Claimant gives examples of this relating to the causes for the dislocation of [a component] and others that will be recounted below in relation to each incident …

207. The Claimant also states that it clearly appeared during the cross-examination of [the two aforementioned authors of the report] that the authors were absolutely unable to recognize parts of the [vehicles] on which they had extensively commented and drawn adverse conclusions in the Technical Expertise Report … According to the Claimant, it is apparent that the authors of the Technical Expertise Report have not examined the [vehicles], and have not carried out any technical analysis on the [vehicles'] parts and components that are the subject of the Technical Expertise Report … This has been allegedly ultimately admitted by [the two authors of the report], who purportedly acknowledged that they had exclusively worked on the basis of the documents provided by [Respondent], and of their conversations with [Respondent's] employees … Indeed, the Claimant states that [one of them] admitted that no pictures were taken of the … parts as installed on the [vehicles]: he "did not go into the [vehicles]" and photographed "parts […] that were thrown away on the floor of the workshop" … Other examples are given relating to specific issues under contention and will therefore be commented on below.

208. The Claimant argues that the Technical Expertise Report is a mere restatement of [Respondent]'s position, devoid of any scientific or technical analysis. This explains why this report is laden with gross technical or scientific mistakes, and is completely devoid of any evidentiary value …

209. The Claimant also states that it was confirmed during the cross-examination of the authors of the Technical Expertise Report that this report was not drafted according to international standards. In particular: (i) there were attachments to this report (pictures) that were not attached to the report as filed by [Respondent] in these proceedings …; and (ii) the report filed by [Respondent] in this arbitration is signed by one expert, when the original of report is signed by all three experts ... Incidentally, [one of the authors of the report] allegedly made it clear that a report that would not be signed by all the experts, such as the Technical Expertise Report filed by [Respondent] in these proceedings, would not be accepted as admissible evidence in a [state X] court …

………

217. The Respondent … claims that there is nothing disloyal about how the "Technical Expertise Report" was drawn up. The Claimant was allegedly properly notified at its chosen address in [state X] and decided not to attend. Moreover, the Respondent cites the treatise by Alan Redfern and Martin Hunter in order to argue that interim measures by a court are permissible during an arbitration. Article 9 of the UNCITRAL Model Law is also cited …

218. The application to the court for an interim measure was aimed at preserving the evidence and describing the real and actual situation of the [vehicles] …

219. Moreover, the "Technical Expertise Report" is in compliance with Procedural Order No. 1 as the experts take an oath, and the court mentioned their names, qualifications and the duties when it nominated them; they are on the court's list of experts …

………

224. The Tribunal gave directions in Procedural Order No. 1 as to how expert evidence was to be adduced.

225. The Respondent decided to apply to a … state court in order to request that it obtain expert evidence and to then submit the expert report which was produced (namely, the Technical Expertise Report). Even though the expert evidence was not adduced in accordance with Procedural Order No. 1, the Tribunal decided to admit the Technical Expertise Report. The Tribunal will consider the content of such Technical Expertise Report freely (i.e. it does not consider it is res judicata as stated by the Respondent even if it is part of an emergency [state] judgment) together with the testimonial evidence provide by two of its authors at the hearing ... The Tribunal notes that Technical Expertise Report was submitted in an incomplete form without its annexed pictures … It is also noted that the Claimant did not participate in the process leading up to the report and much of the information on which the authors of the Technical Expertise Report relies was provided by the Respondent. The Technical Expertise Report is neither a report prepared under the control of the Respondent, nor is it a report that has been prepared on an entirely neutral basis on the instructions of the Tribunal.'