'258. By letter … the Arbitral Tribunal provided the Parties with a draft version of the procedural rules that it intended to add to the expert's terms of reference, for their review and comments.

259. The Parties provided the Arbitral Tribunal with their draft questions to the Expert and their comments on the draft Expert's terms of reference … Both Parties then also provided the Arbitral Tribunal with their comments on the other Party's questions to the Expert.

260. … a telephone conference took place during which the Parties and the Arbitral Tribunal finalised the Questions to the Expert.

261. … the Arbitral Tribunal provided the Parties with the signed Expert's Procedural Rules along with the signed Questions to the Expert. The Expert's Procedural Rules described under Section 5 the procedures applicable to the Expert Report.

262. According to this Section:

5.1. The Expert shall submit to the Arbitral Tribunal a draft report.

5.2. The Arbitral Tribunal shall provide the Parties with the draft report, after possible editing (such editing being only for the purpose of ensuring that all questions are answered, or of clarification or clerical improvements).

5.3. The Parties shall then submit their comments (if any) on the draft report directly to the Expert, with copy to the Arbitral Tribunal.

5.4. The Expert may take into consideration the Parties' comments before providing the Arbitral Tribunal with his final report. The Arbitral Tribunal shall review the draft final report and, if necessary propose editing to the Expert, it being understood that such editing shall relate only to issues of form and not of substance. If no editing is required or after such editing is completed, the Arbitral Tribunal shall then provide the final report to the Parties.

5.5. The Expert shall be available to answer questions on his final report during the hearing on the merits.

5.6. The deadlines for the various steps will be determined so as to enable the Parties to receive the Expert's final report sufficiently in advance of the hearing on the merits.

263. The Parties provided the Expert with documents they considered relevant for his mission.

264. The Expert conducted a second site visit of the plant ... Representatives of both Parties also attended this second site visit.

265. The Arbitral Tribunal provided the Parties with the draft Expert's Terms of Reference [after the second site visit] for their review and comments. The Parties did not request any amendments to this draft.

266. The Expert provided the Arbitral Tribunal with his draft Expert Report [nine days later].

267. By letter … the Arbitral Tribunal informed the Parties that the Expert had issued his draft Report for pre-review by the Arbitral Tribunal. The Arbitral Tribunal indicated that it would provide Counsel with the draft Expert Report once it would have completed its review (limited to editing and clarification, as per the agreed procedure) and once the Parties would have paid the requested deposits. The Arbitral Tribunal also assured the Parties that appropriate time limits would be set for them to submit comments on the draft Expert Report.

268. By letter … the Arbitral Tribunal circulated the finalized Expert's Terms of Reference for execution.

269. In response to Claimants' query regarding the timing of the draft Expert Report, the Arbitral Tribunal informed the Parties by email … (and confirmed by letter …) that the editing of the draft Expert Report was taking longer than expected. The Arbitral Tribunal emphasized that the issue was one of formulation and formatting, not of substance. Due to commitments of the Expert abroad, the Arbitral Tribunal informed the Parties that it would most likely not be possible to submit to him the edited version of the draft Expert Report before [another week]. Given that the hearing [the following month] could not be rescheduled, the Arbitral Tribunal decided to proceed as follows:

1. The Parties will receive the draft report by middle of next week.

2. The Parties shall be given the opportunity to make comments in writing within a reasonable timeframe from receipt of the report. These comments can be tentative and shall not exclude the Parties from asking further questions or making further comments at the hearing itself.

3. If time allows (and this point is being written without first consulting [X] who therefore cannot be bound to it), [X] will provide very short-form (even bullet-point form) responses to the Parties' comments prior to the hearing.

4. In any event, [X] will provide his detailed responses at the hearing.

5. At the end of the hearing, the Parties and the Arbitral Tribunal shall discuss what the proper further course of action should be. It might not be necessary for [X] to file another report; this will depend on the questions and answers given at the hearing itself. It may well be that the Parties will be content to comment on [X]'s evidence in their post-hearing briefs.

6. If it is decided that [X] shall provide an additional written report after the hearing (the scope of which shall in that case be to address questions and/or comments made at the hearing; this would not be an entirely new report), the Parties, [X] and the Arbitral Tribunal shall agree on a timeframe for [X] to file such additional report.

7. The follow-up to any additional report (another hearing? Questions / answers in writing? Wuestions [recte: Questions] by phone conference?) shall be decided once the Parties will have received the additional report.

270. By email … the Arbitral Tribunal requested the Parties to provide it with a list of all documents (or other materials, if any) that they provided to the Expert. It indicated that Claimants' list should be called "Annex A to the Expert Report" and Respondent's list "Annex B to the Expert Report".

271. A pre-hearing conference call took place … during which it was agreed between the Parties and the Arbitral Tribunal to reserve one whole day of the hearing for the examination of the Expert.

272. [The following day] the Arbitral Tribunal provided the Parties with the draft Expert Report. The Arbitral Tribunal indicated that, in accordance with the Arbitral Tribunal's letter [describing the procedure for reviewing the Expert Report], the Parties were requested to file their written comments by [a specified date, some two weeks later] and that, after receipt of these comments, the Expert would proceed as set out in points 3 and 4 of the letter [describing the review procedure].

273. In "Claimants' submission" … Claimant 1 indicated that the draft Expert Report was to be disqualified as evidence and requested the appointment of another expert. The grounds for Claimant 1's motion are summarized at §§ 297-302 below.

274. On the same day, the Arbitral Tribunal acknowledged receipt of Claimant 1's submission … and indicated that it would revert with guidance shortly and that, in the meantime, no further submissions were requested.

275. … a telephone conference took place between Counsel and the Chairman alone … at which Claimants' objections were briefly discussed. The telephone conference was summarised in a letter from the Arbitral Tribunal ... In relation to Claimants' objections, the letter states the following:

The Chairman informed the Parties that there had been exchanges on this subject among members of the Arbitral Tribunal and that a letter was under preparation. For the purpose of the telephone conference, the Chairman explained that the aim of sending the Parties a draft Expert Report was to enable them to request additional explanations, to direct the Expert to documents that any Party considers to be particularly important, and to enquire as to why certain documents or statements had not been taken into account (or apparently not been taken into account). The Arbitral Tribunal's letter will be along those lines.

At this stage, the Arbitral Tribunal will not ask [Claimant 2] or Respondent to comment. [Respondent's counsel] stated that Respondent in any event disagreed with the terms of Claimant No. 1's letter [objecting to the Expert Report].

276. The Arbitral Tribunal reiterated its explanations on the procedures relating to the Expert Report in its letter ... It indeed indicated that:

1. The purpose of sending a draft of the Expert Report to the parties was, inter alia, to enable them to request further explanations or to draw the Expert's attention to evidence that the Expert may not have taken into consideration (or not properly understood). Therefore, if in the draft Expert Report the Expert does not give what any one of the Parties considers to be sufficient reasons, this does not result in any prejudice to any of the Parties, since they can ask for more detailed or complete reasons, or even ask the Expert to reconsider certain findings based on specifically reasoned grounds and/or specifically referenced documents. This can be done in advance of the hearing and at the hearing itself. Moreover … the Arbitral Tribunal provided for ample safeguards so as to avoid that the Parties would be facing undue time constraints (in particular by reserving a follow-up discussion on the Expert process for after the examination of the Expert at the hearing).

2. Thus, the procedures in place guarantee each Party's right to receive equal treatment and enable the Parties to obtain a sufficiently reasoned report. This presupposes that the Parties make use of these guarantees, by making their comments and by putting questions to the Expert at the hearing as per the existing procedural framework. Once this is accomplished, the Arbitral Tribunal can order further steps in the Expert process, if the arbitrators consider this to be appropriate.

3. As a side comment, the Arbitral Tribunal emphasizes that Section 7.3 of the Procedural Rules … reads as follows (emphasis added): "For matters not specifically covered by these Procedural Rules, the Parties and the Arbitral Tribunal may use the IBA Rules on Taking of Evidence in International Commercial Arbitration as guidelines." The procedures laid down by the Arbitral Tribunal in consultation with the Parties depart from the IBA Rules in several respects (it is to be noted that neither the Expert's Terms of Reference nor the Expert's Procedural Rules make any reference to the IBA Rules). One of the differences is precisely the idea that the Expert would submit a draft report so as to enable the Parties to request additional explanations or justifications to the extent that they considered this to be necessary - and only to that extent. This way of proceeding enhances the efficiency of the Expert process by avoiding unnecessarily long and complicated Expert reports (for instance by avoiding the requirement of complete method statements for each and every issue where none of the Parties requests this).

For these reasons, the Arbitral Tribunal considers that the objections raised by Claimant No. 1 are based on a misunderstanding of the processes by which the Expert is to issue his definitive findings. A ruling on the procedural motions set out in the letter for Claimant No. 1 would therefore be misplaced, at least at this stage of the proceedings, when the Expert process is not completed ad [recte: and] Claimant No. 1 has the opportunity to request additional explanations.

277. Both Parties provided the Arbitral Tribunal with their comments on the draft Expert Report ...

278. In its submission … Claimant 1 indicated that it maintained the position stated in its submission [made previously] regarding the formal objections to the draft Expert Report. It therefore requested that the Expert be removed and that the evidence from the opinion of another expert be admitted. Should Claimant 1's request for removal of the Expert be rejected, Claimant 1 filed for "the overall verification and supplementation, as well as modification of the Expert Opinion by the Expert". The grounds for Claimant 1's motion are summarized at §§ 297-302 below.

279. As for Respondent's comments, they mainly concerned issues of formulation. Moreover, few additions to the draft Expert Report were proposed.

280. By email of the same day, the Arbitral Tribunal provided the Expert with guidance in respect of the comments on his draft Expert Report, which were filed by Claimant 1 and by Respondent. The Arbitral Tribunal indicated that the Expert had to examine carefully the comments in view of his examination at the hearing … and:

More specifically:

• With respect to Claimant No. 1's comments: please be prepared to give at the hearing more detailed explanations for your findings, to indicate which documents (or other supporting elements such as statements made to you by a Party's representative) your findings are based upon, to describe the methodology you used, and, where applicable, to address specific points raised by Claimant No. 1. Please also verify whether the additional documents provided lead you to change or inflect your findings.

• With respect to Respondent's comments: please be prepared to address at the hearing the comments (often made in the form of questions) and verify whether you agree with the changes/additions to your report that Respondent has suggested, and to provide reasons for whatever position you take. Finally, please also verify whether the additional documents provided lead you to change or inflect your findings.

281. The Arbitral Tribunal also stressed that, as indicated in its letter [describing the review procedure] (point 3), it would be helpful if the Expert could provide very short-form (even bullet-point form) responses to Claimant 1's and Respondent's comments prior to his examination but that this was not compulsory.

282. By letter … the Arbitral Tribunal provided the Parties with a chart summarizing all of the organizational and other matters that needed to be addressed in view of the hearing. The issue of the identification by each Party of the technician(s) to assist Counsel in putting questions to the Expert at the hearing, or by putting such questions directly, was mentioned under point 6.b. of the chart as "overdue" ...

283. By emails… Respondent informed the Arbitral Tribunal that the persons who would assist Respondent in putting questions to the Expert at the hearing would be ...

285. Claimants informed the Arbitral Tribunal, by email … that they did not expect any technicians to assist their Counsel in putting questions to the Expert.

286. … the Expert provided the Parties with his "First Comments on the Claimant's [sic] Submission …" and with his "First Comments on 'Remarks of the Respondent on the Expert's Draft Report' …".

287. By email … the Arbitral Tribunal acknowledged receipt of the Expert's comments and directed the Parties, in order to enable the Arbitral Tribunal to complete its preparation of the hearing, to refrain from any further written comment before the hearing, and preferably before the examination of the Expert [at the hearing].

288. The method of examination of the Expert was discussed during the procedural discussion that took place [at the hearing], after the examination of the last fact witness. The Arbitral Tribunal proposed to proceed issue by issue, each Party putting in turn their questions to the Expert. In this regard, the Arbitral Tribunal drew the Parties' attention to the fact that the draft Expert Report that was on file was only a draft and that it might be that the Expert would issue a Final Report based on the Parties' comments and on the discussion occurring on the occasion of his examination [at the hearing]. Therefore, the examination of the Expert [at the hearing] would not necessarily be the last phase of the procedures related to the Expert. The Arbitral Tribunal indicated that it had stated this clearly in its previous letters ...

289. During the procedural discussion [at the hearing], Claimants also indicated that, [the following day], they would be making further statements and further declarations on their request regarding the "disqualification" of the Expert Report "and the admittance of another report" (without however intimating that they would seek to file "another" report the next morning). Claimants indicated on several occasions that they did not want to have the discussion on these issues before the [next morning].

290. In this regard, the Arbitral Tribunal stressed that the scope of the examination of the Expert was to gather information on technical matters. The Arbitral Tribunal indicated that the fact that the examination of the Expert would take place would be without prejudice to the Claimants' reservations and would not at all be a prejudgment on the admissibility of the Expert's evidence. The Arbitral Tribunal expressly stated that, should it later arrive at the conclusion that Claimants' position was founded, other forms of expert evidence would need to be organized, since the Expert's evidence would not be taken into account.

………

Summary of Claimants' grounds for requesting removal of the Expert and appointment of another expert

297. In their submissions … Claimants challenged the Expert and requested the appointment of another expert.

298. First, Claimants argued that the Expert had not remained independent and had breached the principle of equal treatment of the Parties. In particular, they stated that the Expert did not explain why he ignored the explanations provided by Claimants to the benefit of those provided by Respondent.

299. Second, Claimants stressed that the draft Expert Report was based on information that was inconsistent with the actual facts of the case and that it was therefore totally unreliable. According to Claimants, the Expert omitted to take into consideration key documents that had been submitted to him.

300. Third, Claimants alleged that the draft Expert Report was superficial and unprofessional, since it did not contain the necessary references to the methodology and tests methods that were used by the Expert in the course of his analysis. To further substantiate this allegation, Claimants indicated that the Expert did not attach to the draft Expert Report any calculation. In their view, the Expert did not even explain how he reached certain conclusions, failing to specify and not adequately demonstrating the premises on which he relied.

301. In addition, Claimants stated that the draft Expert Report was internally contradictory and contained conclusions that were in conflict with the Expert's initial assumptions. Claimants moreover considered that the Expert had failed to answer some of the questions addressed to him or provided for conclusions that are ambiguous.

302. Finally, Claimants considered that the Expert was unfamiliar with the specifics of the operation of the system at the plant … and that he failed to conduct appropriate verifications of compliance with the contractual requirements.

Respondent's position on Claimants' request for removal of the Expert and appointment of another expert

303. In its submission … Respondents requested the dismissal of Claimants' motion to remove the Expert and appoint another expert.

304. In substance, Respondent argued that Claimants surprised the Arbitral Tribunal and Respondent with their procedural motion, since the Parties had agreed to proceed with the examination of the Expert ...

305. Respondent insisted on the procedures applicable to the Expert, in particular that, further to the issuance of the draft Expert Report, the Parties were entitled to ask the Expert for more detailed or complete reasons and even to request the Expert to reconsider his findings. However, Respondent stated that Claimants expressly waived their right to interrogate the Expert and chose, instead, to press their motion to remove the Expert and appoint another Expert.

306. Respondent also indicated that the Expert had been appointed upon Claimants' request and that their motion for his removal was only motivated "by their disappointment that the Tribunal-Appointed Expert has not found in their favour". Respondent considered that the appointment of another Expert "would amount to allowing the Claimants to try and continue to bring forward expert evidence until they manage to find someone who is willing to reproduce their self-declared correct point of view".

Decision of the Arbitral Tribunal on Claimants' request to remove the Expert and to appoint another expert

307. By Procedural Order No. 9 … the Arbitral Tribunal dismissed Claimants' request for removal of the Expert and appointment of another expert ... Moreover it reserved its decision whether to collect further expert evidence for a ruling in a later award. …

………

Obligation to design and deliver equipment and a system corresponding to contractual specifications and applicable standards

718. The question whether Respondent complied with its overarching obligation to design and deliver equipment and a system corresponding to contractual specifications and applicable standards was addressed at length in these proceedings. This is reflected by the importance of the subject in the Parties' PHBs … the Arbitral Tribunal appointed [X] to give expert evidence on these issues.

719. In the present part of this final award, the Arbitral Tribunal will first examine the procedural status of the expert evidence given by [X]. Indeed, Claimants have objected to this evidence being taken on record, or to the Arbitral Tribunal relying on the expert evidence to reach findings, on a number of grounds … For the reasons given below, the Arbitral Tribunal rules that [X]'s evidence is procedurally admissible and that it assists the Arbitral Tribunal in reaching its own findings (§§ 742-743 below).

720. The Arbitral Tribunal shall then proceed to analyse whether the evidence given by [X] leads to a reduction of the outstanding balance counterclaimed by Respondent. The answer is negative, for reasons relating more to Claimants' approach to the issues than to the intrinsic findings of the Expert (§§ 744-759 below).

721. Finally, the Arbitral Tribunal shall make findings independently from the expert evidence given by [X]. Indeed, on the basis of the Arbitral Tribunal's own knowledge and experience and in light of factual issues having nothing to do with the evidence given by [X], the Arbitral Tribunal also concludes that the record does not enable the Arbitral Tribunal to operate a reduction of the outstanding amount owed to Respondent on account of any failures by Respondent to design and deliver equipment and a system corresponding to contractual specifications and applicable standards (§§ 757-760 below).

Status of the expert evidence given by [X]

722. For the reasons set out inter alia [in] their PHB, Claimants argue that the Arbitral Tribunal cannot use the expert evidence given by [X] at all. These reasons are, in substance, that the Expert did not follow the agreed procedures (e.g. he did not explain the methodology used; he did not indicate the evidence he relied upon to reach findings; he did not carry out a proper examination of the system; he preferred evidence of Respondent over Claimants' evidence without any explanation; his answers go beyond the questions put to him; etc.) and that his report is fundamentally flawed as to its substance (e.g. it is contradictory).

723. First of all and for the sake of clarity, the Arbitral Tribunal emphasises that it has ruled on Claimants' request for a removal of the Expert by Procedural Order No. 9. In this Procedural Order, the Arbitral Tribunal rejected the application for the Expert's removal. Since the issuance of this decision, the Arbitral Tribunal has not been given any valid reason to reconsider its decision not to remove [X].

724. § 120 of Procedural Order No. 9 reads as follows (emphasis in the original):

If the arbitral tribunal is in a situation in which it needs to rely on the expert evidence … and if it considers that the expert evidence is not convincing or reliable on issues that are decisive for the claim and if it finds that it is not capable of resolving the issue without the assistance of expert evidence, then the arbitral tribunal must collect further expert evidence.

725. Therefore, as indicated explicitly at § 120 of Procedural Order No. 9, the Arbitral Tribunal's ruling on the removal of the Expert in no way pre-judged the question whether the Expert's evidence could serve as evidence to be taken into account by the Arbitral Tribunal for reaching its own conclusions. This means that the Arbitral Tribunal needs to examine Claimants' objections to the reliability and validity of the expert evidence on record.

726. The Arbitral Tribunal cannot follow Claimants for two types of alternative reasons, one procedural and the other substantive.

727. The procedural reason is that Claimants' objections - indeed Claimants' entire approach to the issue of [X]'s evidence - contravenes and falls outside of the agreed procedures for expert evidence in these proceedings.

728. As described at §§ 258-294 above, the Arbitral Tribunal and the Parties settled the procedure in such a way as to have the expert provide the Parties with a draft opinion. The very purpose of this draft opinion was to enable the Parties to comment on - and if they saw fit, to criticise - the expert's draft findings; to point out to the expert potentially important evidence or norms that he might not have taken into account; to repeat or reformulate arguments of which a party felt that they had not been properly taken into account; to draw the expert's attention to internal contradictions; etc. On this basis, the expert was to provide a final report in which he could either maintain his initial findings (if need be by reinforcing the reasons) or modify them on the basis of the comments received. Afterwards, the expert was still available for questioning at the evidentiary hearing. This is the mechanism set out in Section 5 of the Expert's Procedural Rules. Claimants never protested or reserved any rights in respect of this procedure.

729. Due to delays in the issuance of the draft report to the Parties (for which none of the Parties was responsible), the Arbitral Tribunal slightly amended the procedure by [the letter in which it described the procedure for reviewing the draft report]. The main change was that the Expert would give short-form or bullet-point responses before the hearing (instead of a final report) and provide his "detailed" responses at the hearing. The amended procedure remained the same as the one laid down in Section 5 of the Expert's Procedural Rules on, inter alia, one crucial aspect: the Parties were in a position to provide detailed comments on the draft report before the examination of the Expert at the hearing and were supposed to put questions to the Expert that would lead to a final report.

730. Claimants unilaterally decided to abort the process laid down in Section 5 of the Expert's Procedural Rules, as amended by the Arbitral Tribunal ...

731. In their submission … Claimants issued a series of general objections against the Expert's work and requested that he be removed, instead of making specific comments or directing the Expert to specific documents, norms or arguments that he had allegedly failed properly to take into account.

732. In its letter … the Arbitral Tribunal again explained the procedure laid down in Section 5 of the Expert's Procedural Rules and concluded as follows:

[…] the Arbitral Tribunal considers that the objections raised by Claimant No. 1 are based on a misunderstanding of the processes by which the Expert is to issue his definitive findings. A ruling on the procedural motions set out in the letter for Claimant No. 1 would therefore be misplaced, at least at this stage of the proceedings, when the Expert process is not completed ad [recte: and] Claimant No. 1 has the opportunity to request additional explanations.

733. … Claimants filed comments on the draft Expert Report. In these comments, Claimants reaffirmed their demand that the Expert be removed. Claimants also heavily criticised the draft report. It should be noted that, apart from limited exceptions …, the criticism by Claimants was of a very general nature and frequently consisted in repeating the position taken in its previous submissions.

734. The Arbitral Tribunal gave the Expert guidance by email ... the Expert provided the Parties with his "First Comments on the Claimant's [sic] Submission …" and with his "First Comments on 'Remarks of the Respondent on the Expert's Draft Report' …".

735. … In this final award, the Arbitral Tribunal considers that it is important to emphasise two points.

736. First, the Arbitral Tribunal underlines that, in the course of the hearing, the Chairman repeatedly asked the Parties and their Counsel whether there was anything that they wished to bring to the Tribunal's attention … and Claimants did not raise the issue of [an alternative] report and their objections until the morning of … the last day of the hearing.

737. Second, on [that morning], after Claimants stated that they would not interrogate the Expert and that they were seeking to file the evidence of [another expert] instead …, the Arbitral Tribunal again clearly spelled out the agreed procedures to Claimants … Importantly, the Arbitral Tribunal explicitly informed Claimants that, if they chose not to interrogate the Expert at the hearing, they would be deemed as having waived the right to do so and that "there [would] be no second chance" to do so at a later stage of the proceedings.

738. Despite this admonishment, Claimants chose not to interrogate [X] at the hearing (they eventually put some questions to him, but on a piecemeal basis and only after Respondent had examined him).

739. To summarise, Claimants' approach consisted in issuing blanket objections against the evidence given by the Expert. Subject to very limited exceptions, their comments on the draft Expert Report never reached a level of specificity that was required by the agreed process. Claimants failed almost entirely to point to any specific document provided to the Expert in order for the Expert to take that document into account. The same applies to provisions of the contractual specifications or applicable norms or standards. As a result, the Expert was never placed in a position that would have enabled him to provide detailed and reasoned responses to Claimants' comments. In the rare instances where Claimants' comments were specific, the Expert's comments … were equally specific. … Otherwise, the Expert's written responses were necessarily of a general nature. The approach chosen by Claimants thus prevented the Expert from answering the criticisms levelled against the draft Expert Report on a scientific and properly documented basis.¹

740. In the circumstances, the Arbitral Tribunal therefore cannot accept Claimants' blanket objections and criticisms against the admissibility of [X]'s evidence.

741. Second, as regards substance, the Arbitral Tribunal has nevertheless reviewed Claimants' criticisms of [X]'s evidence. The Arbitral Tribunal notes that the vast majority of these criticisms consist in repeating Claimants' position in general terms. It is therefore not possible for the Arbitral Tribunal to reach a finding that [X]'s evidence is intrinsically unreliable. As for the accusation that [X] breached the agreed procedural rules, the Arbitral Tribunal sees no basis for it in the record.

742. Therefore, even if Claimants' objections to the admissibility of [X]'s objections were validly made in light of the agreed procedures (which they are not), this would not lead the Arbitral Tribunal to disregard the expert evidence on record.

743. For either of the above reasons, the Arbitral Tribunal therefore finds that it may use the expert evidence of [X] to assist it in reaching its own conclusions.

Analysis of the findings of [X]

744. [X]'s evidence consists of the following:

• draft Expert Report …;

• the Expert's "First Comments on the Claimant's [sic] Submission …" …;

• the Expert's "First Comments on 'Remarks of the Respondent on the Expert's Draft Report' …", …;

• testimony given by the Expert at the hearing …

745. The evidence given in writing … and orally at the hearing is of limited use for this final award. Indeed, for the reasons given above, the responses to Claimants' comments are of a rather general nature. As for the Expert's responses to Respondent's comments, they are very short because Respondent commented on only a few issues. As for the Expert's testimony at the hearing, it was very short and focused on a limited number of issues. As a general remark, none of the additional written or oral evidence given by the Expert … leads the Arbitral Tribunal to make findings that would be fundamentally different from those resulting from the draft Expert Report ... The Parties agreed that there was no need for the Expert to issue a revised and final expert report after the hearing … Therefore, the basis for the Arbitral Tribunal's findings is the draft Expert Report.

746. The draft Expert Report is a relatively long document, but can be summarised briefly.

747. The Expert examines a number of questions put by the Parties and the Arbitral Tribunal. Several of the questions relate to very specific technical issues; others are more general. The overall conclusion of the Expert is that, subject to certain exceptions, the system designed by Respondent conforms to applicable standards and is state-of-the-art, has consumption figures that are within the contractual ranges, enables Claimants to produce the intended product at the intended throughput and is built with materials and equipment that conform to their intended use and/or are in conformity with applicable standards and regulations …

748. The Expert makes reservations or criticisms on the system designed and the equipment selected and delivered by Respondent, or on other more general issues, on a number of points. …

749. Regarding [parts of the equipment] - which are not in accordance with the contract specifications according to Claimants - the Expert found that they were indeed not dimensioned as would be required under the technical specifications. However, the Expert also found that the problem resided in "obviously" wrong figures in the specification, not in the system as dimensioned by Respondent. Taking into account all parameters, the Expert opines that the system can deliver the contractually required throughput, but without any reserve. …

750. On certain issues, the Expert noticed that problems occurred, but either considered that they were normal occurrences for this type of project or that he was unable to determine exactly what happened, since the relevant events took place years before the start of his mission. …

751. On several points, the Expert found that the problem arose due to matters for which Claimants were responsible, at least in part (or for which Respondent cannot be held responsible). …

752. The overall conclusion that one can draw from the above is that Claimants cannot withhold 100% of the remaining contract price on the ground that Respondent allegedly failed to design and deliver a system that corresponded to applicable norms and standards and to the Contract, or that the equipment selected and delivered by Respondent was totally inadequate. This is what Claimants would need to prove under the agreement … and the evidence on record certainly does not pass that threshold.

753. This is not to say that the Expert's evidence absolves Respondent from any and all reproach. On the contrary, the Expert makes certain findings that might have led the Arbitral Tribunal to operate a partial reduction in the price. However, in the absence of any guidance from Claimants, the Arbitral Tribunal does not possess the technical knowledge and experience that would enable it to make an informed decision on such partial reduction.

754. Claimants could have sought, even in the alternative to their objections as to the Expert's evidence, to take as a starting point those instances in which the Expert makes findings that are adverse to Respondent, and to seek additional explanations from the Expert as to the relative importance of these adverse findings in terms of possible reductions in price.² Claimants could also have sought to make this demonstration themselves. The Arbitral Tribunal notes that, [in] their PHB, Claimants make a list of what they consider to be findings by the Expert that are adverse to Respondent. Several of the issues that the Arbitral Tribunal has noted above are included in Claimants' list. However, instead of attempting to show how even these issues could translate into a partial reduction in the balance of the contract price, Claimants merely argue that the Expert failed to draw the proper conclusions from his own findings.

755. In other words, Claimants have adopted an "all or nothing" approach that leaves the Arbitral Tribunal unable to determine whether a partial reduction would have been justified and, if so, in which amount.

756. Therefore, on the basis of the Arbitral Tribunal's analysis of the evidence given by the Expert, there is no basis for a reduction [of the outstanding balance owed by Claimants to Respondent].

Findings that the Arbitral Tribunal makes irrespective of the expert evidence given by [X]

757. The members of the Arbitral Tribunal are not engineers in the [concerned] industry. However, all three members of the panel have experience in construction and engineering, some of them extensive experience. On the basis of its own experience and knowledge, and of other evidence on record, the Arbitral Tribunal reaches the same conclusion as the one that flows from the Expert's evidence.'

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1
The somewhat emotional tone of some of the Expert's responses … has not escaped the Arbitral Tribunal. This is unfortunate since emotional comments are not helpful for the arbitrators. However, the Expert's reaction is no doubt explained by the aggressive tone taken by Claimants in their comments on the draft Expert Report (this tone was also unhelpful for the Arbitral Tribunal). Moreover, Claimants did not avail themselves of the sometimes emotional tone taken by the Expert in their subsequent submissions, in particular in the submission they made to the Arbitral Tribunal on the morning of [the last day of the hearing]. More generally, the Arbitral Tribunal has no reason to doubt the impartiality of the Expert, as stated in Procedural Order No. 9.

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2
Instead, at the hearing, Claimants decided not to examine the Expert at all, despite a clear admonishment that they would not get another chance to do so. See §§ 737-738 above.

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