Contract analysis

1. Respondent, Whitmore Aerospace LLC ("WAL" or "Respondent"), hereby submits these Pre-Hearing Organizational Submissions pursuant to the procedural directions issued in Procedural Order No. 1, dated February 14, 2023 ("PO No. 1"), and the procedural timetable established therein. The purpose of these submissions is to set forth Respondent's position on the organization, logistics, and scheduling of the evidentiary

2. By way of background, the procedural history of this arbitration is as follows: (a) The Arbitral Tribunal was constituted on January 20, 2023, with the appointment of Prof. Dame Eleanor Fitzwilliam as Presiding Arbitrator, Dr. Hans-Ulrich Perren as the Co-Arbitrator nominated by Claimant, and Hon. Robert A. Castillo as the Co-Arbitrator nominated by Respondent. (b) A preliminary procedural conference was held on F

3. As the procedural timetable contemplates, the Hearing will constitute the final phase of evidence-gathering prior to the submission of post-hearing briefs (due February 9, 2024) and the Tribunal's deliberation on the merits. In light of the approaching Hearing, Respondent submits the organizational proposals set forth below for the Tribunal's consideration and invites Claimant's comments thereon. Respondent has en

II. PROPOSED HEARING SCHEDULE AND DAILY TIMETABLE A. Overall Hearing Duration

4. The Hearing is scheduled for five hearing days, commencing on Monday, January 8, 2024, and concluding on Friday, January 12, 2024. It is Respondent's considered view that five hearing days should be sufficient for the completion of all fact witness testimony, expert witness testimony, opening statements, and any closing submissions the Tribunal may wish to hear. As set forth in greater detail below, the total esti

5. Respondent proposes the following daily timetable for each of the five hearing days:

6. Respondent proposes that brief mid-session breaks of approximately 15 minutes each be taken during both the morning session and the afternoon session, at the Tribunal's discretion or upon the request of either party. Accounting for these two breaks, the effective hearing time per day would be approximately 6.5 hours.

7. Over five hearing days, the total effective hearing time available to the parties and the Tribunal would therefore be approximately 32.5 hours.

8. Respondent respectfully submits that this daily timetable strikes an appropriate balance between maximizing the productive use of the Hearing and ensuring that the Tribunal, counsel, witnesses, and the court reporter are afforded adequate opportunity for rest and preparation during the day. C. Proposed Day-by-Day Allocation

9. Respondent proposes the following day-by-day allocation of hearing time, subject to the Tribunal's direction and any modifications that may be required as the Hearing progresses: Day 1 — Monday, January 8, 2024. Morning Session (9:30 a.m. – 1:00 p.m.): Opening statements. • Claimant's opening statement: approximately 1.5 hours • Respondent's opening statement: approximately 1.5 hours Afternoon Session (2:15 p.m. –

III. PROPOSED WITNESS ORDER — FACT WITNESSES A. Respondent's Position on Sequence

10. Respondent proposes that the fact witnesses be examined in sequential order, with Claimant's fact witnesses examined first, followed by Respondent's fact witnesses. This approach is consistent with the allocation of the burden of proof in these proceedings: Claimant, as the party asserting material breach of the MSA and seeking damages in the amount of €47.3 million, bears the burden of establishing its claims. T

11. If, however, the Tribunal prefers an interleaved witness order — for example, alternating between Claimant's and Respondent's witnesses based on the chronological development of the underlying facts — Respondent is prepared to accommodate such an arrangement. Respondent's sole concern is that the Hearing be organized in a manner that permits the efficient and comprehensible presentation of the evidence. B. Claima

12. Respondent understands that Claimant intends to call the following three fact witnesses. Respondent sets forth below its anticipated topics for cross-examination and its estimates of the time required for each witness's testimony.

1. Friedrich Brenner — Managing Director (*Geschäftsführer*), Kestrel Dynamics GmbH.

13. Mr. Brenner is the Managing Director of Kestrel Dynamics GmbH and is understood to have had overarching management responsibility for the Kestrel–WAL commercial relationship, including the decision to commence this arbitration. Respondent anticipates cross-examining Mr. Brenner on the following topics: (a) Kestrel's awareness of porosity non-conformances in the 14 rejected lots (Lot KDG-2022-0307 through Lot KDG-

14. The estimated time for Mr. Brenner's testimony is as follows:

2. Luisa Erdmann — Commercial Director, Kestrel Dynamics GmbH.

15. Ms. Erdmann served as Kestrel's Commercial Director and was the principal commercial contact between Kestrel and WAL throughout the life of the MSA. Respondent anticipates cross-examining Ms. Erdmann on the following topics: (a) The commercial negotiations leading to the execution of the MSA and the parties' respective understandings regarding pricing, volume commitments, and quality standards; (b) Ms. Erdmann's

16. The estimated time for Ms. Erdmann's testimony is as follows:

3. Dr. Stefan Voss — Head of Quality Assurance, Kestrel Dynamics GmbH.

17. Dr. Voss served as Kestrel's Head of Quality Assurance and is understood to have had direct supervisory responsibility for the quality control and inspection processes applied to the Ti-6Al-4V ELI titanium alloy turbine housings manufactured by Kestrel under the MSA. Respondent anticipates cross-examining Dr. Voss on the following topics: (a) Kestrel's quality assurance processes and its compliance (or non-compli

18. The estimated time for Dr. Voss's testimony is as follows: C. Respondent's Fact Witnesses

19. Respondent intends to call the following two fact witnesses. Respondent sets forth below its anticipated topics for direct examination and its estimates of the time required for each witness's testimony.

1. Gerald Huang — Vice President, Global Supply Chain Operations, Whitmore Aerospace LLC.

20. Mr. Huang has served as WAL's Vice President of Global Supply Chain Operations since 2018 and was the principal operational contact between WAL and Kestrel with respect to the incoming inspection and lot acceptance/rejection process. Respondent anticipates presenting Mr. Huang's testimony on the following topics: (a) WAL's incoming inspection and lot rejection process under WAL-QCP-100, including the documented p

21. The estimated time for Mr. Huang's testimony is as follows:

2. Dr. Ingrid Vollmer — Senior Vice President, Engineering & Manufacturing, Whitmore Aerospace LLC.

22. Dr. Vollmer has served as WAL's Senior Vice President of Engineering & Manufacturing since 2016 and was responsible for the development and maintenance of WAL's engineering specifications, including WAL-SPEC-TH-401 through WAL-SPEC-TH-410. Respondent anticipates presenting Dr. Vollmer's testimony on the following topics: (a) WAL's engineering specifications WAL-SPEC-TH-401 through WAL-SPEC-TH-410, their developme

23. The estimated time for Dr. Vollmer's testimony is as follows: D. Summary Table — Fact Witness Estimated Times

24. The following table summarizes the estimated hearing time for each fact witness:

25. The grand total estimated time for fact witness testimony is approximately 20 hours and 40 minutes (rounded to approximately 20.5 hours for scheduling purposes).

IV. PROPOSED WITNESS ORDER — EXPERT WITNESSES A. Respondent's Position on Expert Examination Sequence

26. Respondent proposes that expert witness testimony be organized by discipline, with the technical/metallurgical experts testifying first, followed by the damages/quantum experts. This sequence is logical insofar as the Tribunal's assessment of the quantum of damages will necessarily be informed by its understanding of the technical evidence regarding whether, and to what extent, the rejected lots failed to conform

27. With respect to the format of expert examination, Respondent is open to the Tribunal's preference. Respondent notes that concurrent expert examination — sometimes referred to as "hot-tubbing" or "witness conferencing" — may offer efficiencies in this case, particularly with respect to the technical/metallurgical experts, whose opinions diverge on discrete and identifiable issues (e.g., the appropriate testing met

1. Dr. Raymond Chow — Principal Engineer, Arclight Materials Science Inc. (Respondent's Expert).

28. Dr. Raymond Chow of Arclight Materials Science Inc. (7900 Westpark Drive, Suite 200, McLean, Virginia 22102) has been engaged by Respondent to provide independent metallurgical analysis of the 14 rejected lots. Dr. Chow filed his expert report on October 16, 2023, and his rebuttal expert report on November 13, 2023.

29. The scope of Dr. Chow's anticipated testimony includes the following: (a) His independent metallurgical analysis of the 14 rejected lots, including the testing methodology employed (computed tomography scanning, optical microscopy, and image analysis in accordance with ASTM E1441 and ASTM E2109); (b) His porosity measurements confirming porosity levels between 0.19% and 0.38% across the 14 rejected lots, with the

30. The estimated time for Dr. Chow's testimony is as follows:

2. Dr. Martina Kessler — Director, Albrecht Prüftechnik GmbH (Claimant's Expert).

31. Dr. Martina Kessler of Albrecht Prüftechnik GmbH (Robert-Bosch-Straße 12, 71229 Leonberg, Germany) has been engaged by Claimant to provide non-destructive testing analysis in support of Claimant's position. Respondent understands that the scope of Dr. Kessler's anticipated testimony includes the following: (a) Her non-destructive testing analysis of representative samples from the rejected lots; (b) Claimant's po

32. The estimated time for Dr. Kessler's testimony is as follows: C. Damages / Quantum Experts

1. Dr. Nadia Ostrovsky — Managing Director, Ridgeline Economic Consulting LLC (Respondent's Expert).

33. Dr. Nadia Ostrovsky of Ridgeline Economic Consulting LLC (200 Park Avenue, Suite 3400, New York, NY 10166) has been engaged by Respondent to provide expert testimony on damages and quantum issues. Dr. Ostrovsky filed her expert report on October 16, 2023, and her rebuttal expert report on November 13, 2023.

34. The scope of Dr. Ostrovsky's anticipated testimony includes the following: (a) Her rebuttal of Kestrel's aggregate damages claim of €47.3 million, including a comprehensive critique of the methodology and assumptions underlying that claim; (b) Her critique of Prof. Dieter Langfeld's (Claimant's quantum expert) lost-profit calculations for both the remaining MSA term (€12.83 million) and the two optional renewal-p

35. The estimated time for Dr. Ostrovsky's testimony is as follows:

2. Prof. Dieter Langfeld — Partner, Rheinsberg Advisory AG (Claimant's Expert).

36. Prof. Dieter Langfeld of Rheinsberg Advisory AG (Talstrasse 62, 8001 Glenrock Assurance, Switzerland) has been engaged by Claimant to provide expert testimony on the methodology and quantification of Claimant's damages claim. Respondent understands that the scope of Prof. Langfeld's anticipated testimony will encompass his damages methodology and his quantification of Claimant's claimed losses.

37. The estimated time for Prof. Langfeld's testimony is as follows: D. Summary Table — Expert Witness Estimated Times

38. The following table summarizes the estimated hearing time for each expert witness:

39. The grand total estimated time for expert witness testimony is approximately 12 hours and 40 minutes (rounded to approximately 12.0 hours for scheduling purposes).

V. TOTAL ESTIMATED HEARING TIME ALLOCATION

40. The following table summarizes the total estimated hearing time across all categories:

41. Respondent acknowledges that the estimated total hearing time of approximately 35.5 hours modestly exceeds the available effective hearing time of approximately 32.5 hours. To address this potential shortfall, Respondent proposes the following practical measures: (i) Extension of afternoon sessions. If necessary, the afternoon sessions on one or two hearing days may be extended by up to one hour (i.e., concluding

42. Alternative approach: equal time allocation (chess-clock method). As an alternative to the witness-by-witness time estimates set forth above, Respondent would also be amenable to the adoption of an equal time allocation for each party, commonly referred to as the "chess-clock" method. Under this approach, each party would be allocated approximately 16 hours of hearing time for the examination of all witnesses (bo

VI. LOGISTICAL MATTERS A. Hearing Venue

43. The Hearing will take place at the ICC Hearing Centre in New York, New York. Respondent requests that the Tribunal confirm the room setup for the Hearing, and in particular that the hearing room be arranged in the following manner: (a) Tribunal-style seating for the three members of the Arbitral Tribunal, with the Presiding Arbitrator seated in the center and the Co-Arbitrators on either side; (b) Counsel tables

44. The language of the arbitration is English, and Respondent does not anticipate that interpretation will be necessary for any of the witnesses to be called at the Hearing. All of Respondent's fact and expert witnesses are fluent in English. Respondent understands that Claimant's witnesses — Mr. Brenner, Ms. Erdmann, and Dr. Voss — are also proficient in English, having provided their witness statements in English.

45. If Claimant requests German-language interpretation for any witness (for example, Dr. Voss or Dr. Kessler), Respondent requests that Claimant provide advance notice of such request no later than December 22, 2023, so that appropriate arrangements may be made. Respondent further proposes that, consistent with standard practice, the cost of interpretation be borne by the party requesting it. C. Transcript and Recor