A. Preliminary Issues

1. The Issue of the New - allegedly forged - Documents

222. On …, [Claimant] filed a submission … with its comments on the New Documents. The submission was accompanied, inter alia, by Exhibit…, an expert report … dated .... According to Claimant, the [Expert] Report demonstrates that the e-mails submitted by Respondents as New Documents are forged. Claimant sees it as proven that (i) the alleged internal e-mail correspondence provided by an alleged anonymous informant from within [Claimant] to Respondents' Counsel was – with the exception of two e-mails (…) – never sent; (ii) the format of the submitted e-mails does not match the format of the e-mail client used by [Claimant], and that (iii) the alleged internal correspondence of Claimant has been fabricated (Claimant's Comments on Exhibits introduced with Respondents' Submission dated …).

223. On …, Respondents submitted their comments on the authenticity of the New Documents and on the [Expert] Report. Respondents reject Claimant's allegations that all but two of the internal e-mails in Respondents' possession are falsifications. Respondents suggest that the documents had been copied and printed from Claimant's server and are genuine. Together with their submission, Respondents filed an expert opinion of IT expert [name] as Exh. … dated …

224. ln view of Claimant's objections, the Arbitral Tribunal has to decide whether it admits the New

Documents submitted on … or not.

225. According to para. 18 of the Specific Procedural Rules, all documents submitted by a Party to the Arbitral Tribunal shall be deemed authentic and complete, unless disputed by the other Party. This rule corresponds to the practice developed by the Swiss courts on the basis of Article 8 of the Swiss Civil Code ("CC") pursuant to which, if a party advances reasoned and plausible doubts regarding the authenticity of a document, the burden of proof in this regard lies with the party submitting the documents. Applied to the present case, this means that if the Arbitral Tribunal finds that Claimant has established reasoned and plausible doubts regarding the authenticity of the New Documents, Respondents are required to prove that the New Documents are authentic (see Schmid/Lardelli, in Honsellnogt/Geiser (eds), Basler Kommentar Zivilgesetzbuch 1, 4th ed., Basle 2010, Art. 8 CC N 86-88; DFT 132 Ill 140, consid. 4.12).

…..

231. The Arbitral Tribunal finds that Claimant's comments as well as the evidence provided by Claimant have raised reasoned and plausible doubts on the authenticity of the New Documents. Therefore, it is Respondents that are required to prove that the submitted documents are authentic.

…..

239. In sum, the Arbitral Tribunal comes to the conclusion that Respondents have not managed to establish the authenticity of the New Documents …; the Arbitral Tribunal has very serious concerns regarding their authenticity. In view of these doubts, an individual analysis of each of the New Documents is not required. As a consequence, the Arbitral Tribunal will not consider the New Documents as evidence.’