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- Art. 5a FC
- Art. 6 FC
- Art. 10 FC
- Art. 16 FC
- Art. 17 FC
- Art. 20 FC
- Art. 22 FC
- Art. 29a FC
- Art. 30 FC
- Art. 32 FC
- Art. 42 FC
- Art. 43 FC
- Art. 43a FC
- Art. 55 FC
- Art. 56 FC
- Art. 60 FC
- Art. 68 FC
- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
- Art. 117a FC
- Art. 118 FC
- Art. 123b FC
- Art. 136 FC
- Art. 166 FC
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- Art. 11 CO
- Art. 12 CO
- Art. 50 CO
- Art. 51 CO
- Art. 84 CO
- Art. 143 CO
- Art. 144 CO
- Art. 145 CO
- Art. 146 CO
- Art. 147 CO
- Art. 148 CO
- Art. 149 CO
- Art. 150 CO
- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
- Art. 4 PRA
- Art. 6 PRA
- Art. 10 PRA
- Art. 10a PRA
- Art. 11 PRA
- Art. 12 PRA
- Art. 13 PRA
- Art. 14 PRA
- Art. 15 PRA
- Art. 16 PRA
- Art. 17 PRA
- Art. 19 PRA
- Art. 20 PRA
- Art. 21 PRA
- Art. 22 PRA
- Art. 23 PRA
- Art. 24 PRA
- Art. 25 PRA
- Art. 26 PRA
- Art. 27 PRA
- Art. 29 PRA
- Art. 30 PRA
- Art. 31 PRA
- Art. 32 PRA
- Art. 32a PRA
- Art. 33 PRA
- Art. 34 PRA
- Art. 35 PRA
- Art. 36 PRA
- Art. 37 PRA
- Art. 38 PRA
- Art. 39 PRA
- Art. 40 PRA
- Art. 41 PRA
- Art. 42 PRA
- Art. 43 PRA
- Art. 44 PRA
- Art. 45 PRA
- Art. 46 PRA
- Art. 47 PRA
- Art. 48 PRA
- Art. 49 PRA
- Art. 50 PRA
- Art. 51 PRA
- Art. 52 PRA
- Art. 53 PRA
- Art. 54 PRA
- Art. 55 PRA
- Art. 56 PRA
- Art. 57 PRA
- Art. 58 PRA
- Art. 59a PRA
- Art. 59b PRA
- Art. 59c PRA
- Art. 62 PRA
- Art. 63 PRA
- Art. 67 PRA
- Art. 67a PRA
- Art. 67b PRA
- Art. 75 PRA
- Art. 75a PRA
- Art. 76 PRA
- Art. 76a PRA
- Art. 90 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
- Art. 11 FADP
- Art. 12 FADP
- Art. 14 FADP
- Art. 15 FADP
- Art. 19 FADP
- Art. 20 FADP
- Art. 22 FADP
- Art. 23 FADP
- Art. 25 FADP
- Art. 26 FADP
- Art. 27 FADP
- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
- Art. 34 FADP
- Art. 35 FADP
- Art. 38 FADP
- Art. 39 FADP
- Art. 40 FADP
- Art. 41 FADP
- Art. 42 FADP
- Art. 43 FADP
- Art. 44 FADP
- Art. 44a FADP
- Art. 45 FADP
- Art. 46 FADP
- Art. 47 FADP
- Art. 47a FADP
- Art. 48 FADP
- Art. 49 FADP
- Art. 50 FADP
- Art. 51 FADP
- Art. 54 FADP
- Art. 57 FADP
- Art. 58 FADP
- Art. 60 FADP
- Art. 61 FADP
- Art. 62 FADP
- Art. 63 FADP
- Art. 64 FADP
- Art. 65 FADP
- Art. 66 FADP
- Art. 67 FADP
- Art. 69 FADP
- Art. 72 FADP
- Art. 72a FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. General
- II. Prerequisites for precautionary measures
- III. Provision of security by the respondent
- IV. Procedure for the issuance of precautionary measures
- Materials
- Bibliography
I. General
A. Concept and purpose
1 Civil proceedings (more or less complex) can take years, even in Switzerland. Precautionary measures are indispensable to protect the plaintiff or the defendant from disadvantages that could occur during the possibly long duration of the proceedings until definitive legal protection is granted. Their institutional purpose lies in the timely realisation of rights and the effective protection of subjective rights. Of course, it should not be overlooked that in practice precautionary measures often also serve other purposes, such as obtaining a quick and inexpensive factual or legal opinion, which enables a better assessment of the procedural prospects of success and can form the basis for a settlement solution, or "sharpening the sword before the big fight" in order to get to know the opposing party's means of defence. In principle, this cannot be seen as an abuse of precautionary measures. Rather, the court must be aware of these secondary functions when issuing precautionary measures.
2 Precautionary measures are divided into three categories according to their content: precautionary measures (to secure the enforcement of a judgment), performance measures (to provisionally enforce a claim) and regulatory measures (to provisionally regulate a legal relationship).
B. Historical background
3 Already under the cantonal codes of civil procedure, the federal legislature included provisions on provisional measures in federal private law to safeguard subjective rights. These provisions experienced different fates when the CCP came into force: while some norms were deleted without replacement or integrated into more specific provisions of the CCP, others continued to apply - sometimes in modified form. In addition, all cantonal codes of civil procedure knew a regulation of the procedure for issuing precautionary measures, whereby the legal nature of the precautionary measure, i.e. its affiliation to the substantive federal private law or to the then cantonal procedural law, was disputed. With the Swiss CCP, this dispute has become less important with regard to the distribution of competences.
4 Art. 261 ff. CCP essentially correspond to the previous standard and are based at least materially on the provisions on the protection of personality under Art. 28c et seq. aZGB, so that the relevant doctrine and case law can continue to be taken into account.
C. Scope of application
5 Federal private law continues to have norms on precautionary measures or comparable institutions after the entry into force of the CCP. It must be clarified in each individual case whether these take precedence as leges speciales or whether Art. 261 et seq. CCP are applicable in addition. Within the CCP, specific norms on precautionary measures can be found in Art. 276 CCP (divorce proceedings), Art. 303 CCP (maintenance and paternity action) and Art. 374 CCP (arbitration proceedings), for which reference should be made to the commentaries on these provisions. Finally, the provisions on the procedure for taking measures are applicable to the taking of evidence on a precautionary basis (Art. 158 para. 2 CCP).
II. Prerequisites for precautionary measures
A. General
6 For the ordering of necessary precautionary measures, the party making the application must show credibly that a claim to which it is entitled has been infringed or that an infringement is to be feared (Art. 261 para. 1 lit. a CCP; claim for an injunction) and that it is threatened with a detriment from the infringement that cannot be easily remedied (Art. 261 para. 1 lit. b CCP; ground for an injunction).
7 According to the law, stricter requirements apply to the issuance of superprovisional measures, i.e. measures that are issued without hearing the respondent (see Art. 265 CCP), as well as to the issuance of precautionary measures against periodically published media (see Art. 266 CCP). For the specific requirements, please refer to the commentaries on these provisions.
B. Right to an injunction
1. General
8 The claim for an injunction is the substantive claim that the party seeking the injunction wishes to secure or enforce by means of precautionary measures. In order to establish a claim for an injunction, the petitioning party must therefore allege and credibly demonstrate facts from which the infringement of a (material) claim or the fear of an infringement thereof arises (Art. 261 para. 1 lit. a CCP). For its part, the court must make an assessment of the merits based on the submissions of the party making the application and the respondent's statement. Apart from statutory exceptions (Art. 262 lit. e CCP), the claim for an injunction may not be pecuniary in nature. With regard to claims for monetary benefits, the instruments of the SchKG, in particular the attachment (see Art. 271 et seq. SchKG), take precedence over the precautionary measures under the ZPO (Art. 269 lit. a ZPO). Apart from that, however, claims for performance, claims for the organisation of proceedings and claims for a declaratory judgement can in principle give rise to a claim for an injunction. The infringement of the material claim can either be imminent or already exist or be ongoing. It is also possible that the act of infringement has already been completed and only its repetition is threatened. Whether such an infringement has occurred is basically determined by the substantive law. In contrast, the ZPO itself requires a risk of commission or repetition in the case of a first infringement or a renewed threat of infringement. According to the not uncontroversial, but probably predominant view, this is a specific requirement for a claim, so that if it is negated in the measure proceedings, the request for a measure is rejected. 2.
2. Risk of first offence and risk of repetition in particular
9 A risk of commission or repetition exists if the imminent violation has become so serious that it appears to be imminent. The decisive factor is not the subjective view of the requesting party, but an objective standard. A purely abstract or hypothetical possibility of commission or repetition is not sufficient, as the risk of commission or repetition must also be credible.
10 Admittedly, the risk of commission and repetition depend to a not inconsiderable extent on the formation of the will of the respondent, i.e. on internal facts. The party making the request must therefore in principle only present circumstances that allow the court to conclude from the statements or conduct of the respondent that he or she (probably) intends to commit or repeat the offence. In view of the difficulties in "positive prima facie evidence", the practice regarding the risk of repetition, but not the risk of commission, also makes use of various assumptions. According to the case law of the Federal Supreme Court, an act of infringement usually gives rise to a presumption that it will be committed again, or at least indicates that it will be committed again if a warning had no effect or would be futile. According to case law, the risk of repetition is then regularly affirmed if the defendant denies the unlawfulness of its conduct, since in such a case it can be assumed that it will continue it in reliance on its lawfulness.
11 It is disputed in doctrine and case law to what extent the respondent can invalidate the presumption of the risk of repetition by a declaration that it will not commit any further infringements. In earlier decisions, the Federal Supreme Court stated that strict requirements had to be met to rebut the presumption. The presumption was not overturned either by the mere cessation of the infringement or by the respondent's declaration to refrain from future infringements if the claim was not acknowledged at the same time. Without taking a position on this, the Federal Court also pointed out that under German law even a cease-and-desist declaration was not sufficient if it was not secured by a contractual penalty. Following these considerations, the doctrine also demanded such a "secured cease-and-desist declaration". More recently, however, the Federal Supreme Court has allowed a "formal declaration of discontinuance" to suffice, although it still seems to tend to require an acknowledgement of the claim. Other courts, on the other hand, have found that a declaration of waiver and submission without recognition of a legal obligation and without a penalty is sufficient if it is unconditional and unambiguous.
12 In principle, I believe that, in the absence of a legal basis, neither an acknowledgement of the claim nor a contractual penalty is necessary to invalidate the presumption of the risk of repetition. Rather, the decisive factor must be whether, on the basis of the formal declaration of distance in the specific individual case, a repetition of the infringing act still appears credible. Moreover, the conduct of the respondent which leads to the lapse of the danger of repetition (and thus to the dismissal of the application for a measure) can be taken into account in the allocation of costs.
C. Grounds for the injunction
1. General
13 The ground for an injunction constitutes the procedural justification for provisionally protecting the claim for an injunction by means of precautionary measures instead of awaiting the definitive outcome of preliminary proceedings. In order to establish a ground for an injunction, the party making the request must allege and credibly demonstrate facts showing that it is threatened with a detriment that cannot be easily remedied as a result of the infringement (or feared infringement) of the claim for an injunction (Art. 261 para. 1 lit. b CCP). For its part, the court must make a prognosis of the disadvantage based on the corresponding submission of the party making the request. According to the not uncontroversial, but probably predominant view, the ground for an injunction is a substantive requirement, so that in its absence, the application for a measure is dismissed and the case is not dismissed.
2. Urgency in terms of time
a. Principle and purpose of temporal urgency
14 The requirement of temporal urgency has not been independently standardised in the law, but is widely recognised in doctrine and case law. Temporal urgency is affirmed if the (final) judgment in the main proceedings cannot be awaited without ordering a precautionary measure, without the requesting party suffering a disadvantage that cannot be easily remedied. However, this in no way implies a subsidiarity of the precautionary measure proceedings compared to other legal options for action. On the contrary, only disadvantages caused by the main proceedings in terms of time can justify precautionary measures.
b. Relative urgency in particular
i. Opinion in doctrine and case law
15 Under the heading of relative urgency, there is a controversial discussion in doctrine and jurisprudence as to the extent to which a delay on the part of the petitioning party in initiating the main proceedings can lead to a lapse of urgency in terms of time. There is widespread agreement that passivity on the part of the requesting party can lead to the dismissal of the application for a measure. The dogmatic basis for the dismissal due to lack of relative urgency is disputed and appears to be partly coincidental. Some argue that in the absence of relative urgency, the temporal urgency as a constituent element no longer exists. Others argue more in the direction of a procedural forfeiture that annuls the right, so that the party making the request can merely no longer invoke urgency due to a breach of good faith, abusive conduct or a lack of interest in legal protection.
16 The concept of relative urgency itself is also unclear. Some argue that this is lacking if the requesting party has allowed a period of time to elapse at the time of filing the application for measures that would probably have sufficed for the conduct of the ordinary proceedings. Others, on the other hand, take the view that relative urgency is already lacking if the main proceedings would have been legally concluded before or only insignificantly after the measure proceedings, provided that the requesting party would have initiated the main proceedings as soon as it was possible for it to do so at the earliest. The difference between the two views is that in the former case it is sufficient for the affirmation of relative urgency if the measure proceedings were initiated within the duration of hypothetical main proceedings, whereas in the latter case the measure proceedings must also be concluded within this duration.
17 For both views, the hypothetical duration of the main proceedings must therefore be determined, and for the second view, the hypothetical duration of the measure proceedings must also be determined. According to doctrine and case law, the hypothetical duration of the proceedings must be determined specifically, taking into account the individual case, and not on the basis of an abstract period of time. According to the prevailing opinion, any appeal proceedings are only to be taken into account to the extent that they have a suspensive effect, since the only decisive factor for the relative urgency is the time by which the petitioning party could have obtained an enforceable judgment in the main proceedings. In other words, for the hypothetical duration of the main proceedings, the appeal proceedings are generally to be taken into account if an appeal against the first instance decision is open (see Art. 315 para. 1 CCP), whereas any Federal Supreme Court proceedings are generally not decisive (see Art. 103 para. 1 FSCA). With regard to the hypothetical duration of the measure proceedings, on the other hand, any appeal proceedings are generally not relevant, as appeals against measure decisions do not usually have a suspensive effect (see Art. 315 para. 4 lit. b CCP).
18 Despite the fundamentally concrete determination of the hypothetical duration of the proceedings, the practice regularly uses abstract rules of thumb: In its case law, the Federal Patent Court assumes that the average ordinary infringement proceedings last two years, whereas the injunction proceedings last about eight to ten months. Therefore, the claim for the issuance of precautionary measures is procedurally forfeited if the requesting party waits about 14 months from the time when ordinary proceedings could have been initiated before asserting the claim. Cantonal practice and doctrine also generally assume a duration of about two to three years for the main proceedings, especially in intellectual property or competition law proceedings. However, caution is required in individual cases. The Commercial Court of the Canton of Bern, for example, has already assumed a duration of the main proceedings of one and a quarter years (without appeal proceedings) and of seven months for the measure proceedings.
19 The earliest possible time for initiating the main proceedings must then be determined for the relative urgency. Theoretically, this is when the factual basis of the claim is available in such a way that a legally sufficient main action corresponding to the request for a measure could be drafted and substantiated. It should be noted that the requirements of the main proceedings are stricter than those of the measure proceedings, so that further clarification of the facts, possibly even obtaining a private expert opinion, may be necessary. Nevertheless, it must be demanded that the requesting party makes a good faith effort to clarify the facts in a timely manner. According to widespread opinion, the period of relative urgency should then be suspended or not even begin to run as long as the party making the request is conducting settlement talks with the opposing party or issuing a warning. Finally, it is disputed whether the party filing the application must have knowledge of the (imminent) infringement of the injunction claim or whether even negligent ignorance can suffice. In my opinion, the decisive factor must be whether it would have been reasonable in good faith for the requesting party to initiate proceedings on the merits at the relevant time in the individual case, so that negligent ignorance is sufficient in any case.
ii. Appraisal and opinion
20 With the requirement of relative urgency, the Federal Supreme Court moved away from the concept of urgency originally introduced in Germany, according to which the time for preparing the application for a measure was decisive for the duration of the permissible waiting period - admittedly under assessment of the individual case. From this point of view, "standard forfeiture periods" of one to three months were also advocated in Switzerland at the time, which still correspond to the applicable legal situation in Germany today. The Swiss time limits under the concept of relative urgency are thus much more generous. The concept of relative urgency is justified by the purpose of precautionary legal protection. This serves to avert disadvantages due to the long duration of the main proceedings, but does not pursue the goal of eliminating the occurrence of further disadvantages beyond the conclusion of the main proceedings. Its function was therefore limited to the point in time of the (hypothetical) occurrence of the enforceability of the decision on the merits, since it should not be in the hands of the requesting party to postpone this point in time by its (abuse of rights) waiting, because the interests of the opposing party were impaired by the facilitations of the measure proceedings. These considerations are to be agreed with. Viewed in the light of hindsight, however, I believe that this concern, regardless of which concept of relative urgency one may follow, is not or not sufficiently realised by its conception. If one assumes that only the application for a measure must be submitted within the duration of hypothetical main proceedings, it is inherent in the concept that the decision on the measure could only be issued after the conclusion of the hypothetical main proceedings. The measures ordered in this case would therefore also protect the requesting party from disadvantages that only occur or increase after the hypothetical conclusion of the main proceedings. The same applies, however, if it is demanded that the measure proceedings must also be concluded within the hypothetical main proceedings, especially if the conclusion of the measure proceedings and the hypothetical main proceedings are close to each other. It would only be different if - which does not happen in practice as far as can be seen - Art. 268 para. 2 CCP were interpreted to the effect that the precautionary measures ordered would have to be limited to the duration of the hypothetical main proceedings. The relative urgency thus favours the requesting party, without there being any justification for this.
21 In my opinion, the concept of relative urgency should therefore be abandoned. Instead, temporal urgency (in the objective sense) should be joined by subjective urgency as a constituent element. Subjective urgency is lacking if it is clear from the behaviour of the requesting party that it is not in a hurry. This can be assumed, among other things, if the requesting party waits for a longer period of time before initiating the measure procedure, although it is aware of the infringement or the threat of infringement or could or should have been aware of it in good faith. In view of the structural preferential treatment of the party filing the application in the proceedings for a measure, it can certainly be demanded of the party filing the application, in view of the interests of the party opposing the application, that it initiate the proceedings for a measure as immediately as possible. The permissible duration of the waiting period must, however, be determined in each individual case. The starting point must be the time that the requesting party needs in good faith to prepare the application for a measure. In individual cases, the legal and factual complexity of the case (especially the time for the necessary clarifications), settlement efforts or out-of-court warning attempts must be taken into account. In the absence of special circumstances, however, a time limit of three months from knowledge or the need to know is likely to be the upper limit. The dogmatic support at the level of the facts is preferable, because mere waiting can hardly be seen as an abuse of rights. In addition, it would have the advantage that the subjective urgency would in principle have to be made credible by the party making the request.
3. Threatened disadvantage that cannot be easily remedied
a. General and concept of disadvantage
22 A disadvantage is any legal or factual impairment of the requesting party in its substantive legal position. The disadvantages may be of a material, i.e. economic, or immaterial nature and may even arise from the mere passage of time in the proceedings. In this respect, the disadvantage within the meaning of Art. 261 para. 1 lit. b CCP differs from the disadvantage under Art. 319 lit. b item 2 CCP and Art. 93 para. 1 lit. a FSCA. The disadvantage must still be imminent, i.e. on the one hand it must not yet have occurred in its entirety and on the other hand it must be credible on the basis of objective indications. The mere possibility of a disadvantage is not sufficient. Likewise, the party filing the application may not be content with merely establishing the credibility of the claim for an injunction or with making general references to advantages of the respondent, but must demonstrate the disadvantage (which cannot be easily remedied) in a legally adequate manner. There is no "presumption of disadvantage" in this sense.
b. Particular disadvantage that cannot be easily remedied
23 According to the wording of the law, the disadvantage described above must be of a qualified nature, i.e. it must not be easily compensated by a later, positive result of the proceedings. A waiver of this qualifying element, as occasionally indicated by the doctrine on the grounds that it is the purpose of the legal system to avoid disadvantages as far as possible, must be firmly rejected, because this view disregards the clear wording of Art. 261 para. 1 lit. b CCP without further justification. Moreover, it fails to recognise that in the measure proceedings, the existence of the claim for an injunction only has to be credible due to limited evidence, and in this respect there is a risk that the precautionary measure could be wrongly ordered. It would be unacceptable to burden the opposing party with this risk (and in turn to refer it to a possible claim for damages under Art. 264 CCP), even though the party making the request would not suffer any significant disadvantages if the precautionary measures were not ordered.
24 A disadvantage that cannot be easily compensated is affirmed if it cannot be compensated or cannot be fully or completely compensated by money. It is disputed in doctrine and jurisprudence whether threatened claims for real performance per se constitute such a disadvantage or whether full compensation can be achieved by monetary payment on the basis of contractual, non-contractual or enrichment-law claims or management without a mandate, so that a precautionary measure presupposes a special interest in real performance.
25 The proponents of the former view derive from Art. 97 CO an unconditional substantive claim to real performance, which must be secured by means of precautionary measures. Compensation for damages, as a secondary benefit per se, cannot constitute full reparation. The opposing view holds that the justification in the main case in the measure proceedings is ultimately still uncertain in view of the reduced standard of proof and the restriction of evidence, and in this respect there can be no absolute claim to real performance. This uncertainty had to be borne by the requesting party, so that a disadvantage that could not be easily remedied could only be assumed if there was (credibly) a special interest in real performance. In addition, the claim for real performance has limits anyway, since even after a judgment in the very last instance, only a claim for damages remains enforceable. The Federal Supreme Court, for its part, initially took the view in an earlier decision that a loss of profit that could be asserted by means of an action for damages did not constitute a disadvantage that could not be easily compensated. In later decisions, it still described this view as justifiable or not arbitrary, but shortly thereafter at least implicitly rejected it with regard to immaterial claims.
26 In my opinion, it seems more convincing to require a special interest in the actual performance, since every legal claim and every postponement of the actual performance is associated with a not inconsiderable risk of non-performance, so that in view of the disadvantage of the respondent in the measure proceedings, this cannot be seen as a sufficiently weighty disadvantage that cannot be easily remedied. However, as far as can be seen, the dogmatic dispute has hardly any practical effects in practice. In my opinion, this is primarily due to the fact that the proponents of the requirement of a special interest in real performance regularly affirm this in those cases in which the proponents of the unconditional claim for real performance consider the referral to the secondary (pecuniary) claim to be particularly objectionable, namely, inter alia, in the case of immaterial disadvantages or interests, in the case of emptying or undermining of the claim for real performance, in the case of evidentiary difficulties and in the case of doubtful solvency of the respondent. Nevertheless, the discussion of prejudice remains a delicate matter in practice, involving a certain discretion on the part of the court.
27 In the following - without claiming to be exhaustive - a brief overview of recent practice will be given. A disadvantage that cannot be easily compensated was affirmed in cases of infringement of absolute or immaterial rights, difficulties in proving the damage or causality, market confusion, doubtful solvency of the defendant, imminent loss of a main means of evidence, "imminent difficulty" in conducting a lawsuit after payment of the guarantee amount, or significant restriction of economic freedom of movement. On the other hand, in numerous cases the courts also found that a concrete disadvantage had not been adequately asserted or made credible. In individual cases, a disadvantage due to a declaration of indemnity was denied.
c. Principle of proportionality: Weighing up the interests against the disadvantages of the respondent?
i. Opinion in doctrine and case law
28 It is disputed to what extent the disadvantages of the opposing party are to be taken into account within the framework of the disadvantage prognosis for the ordering of precautionary measures.
29 The case law of the Federal Supreme Court is fluctuating. In older decisions on patent law, the Federal Supreme Court stated that if the requirements are met, a measure must be taken "regardless of whether and how severely it could disadvantage the opponent of the application". The law only took into account the possible disadvantage of the opposing party by allowing the court to require the party making the application to provide security (now Art. 264 para. 1 CCP). Nothing prevented the court from setting the security at such a level that the full damage could be compensated after the main proceedings. An actual weighing of disadvantages would turn the legal order into the opposite. However, only two years after confirming this case law, the Federal Supreme Court held in a dispute under unfair competition law that the interests or the disadvantages of the parties had to be carefully weighed against each other in a request for the provisional lifting of a supply ban, without giving detailed reasons for the associated deviation from its previous case law. The requirement of a comprehensive weighing of interests and disadvantages was later confirmed with regard to a prohibition of competition under labour law and then in a general manner, since it was not clear why the prognosis of disadvantages should be carried out according to different rules in different areas of law. At least in the latter decision, the Federal Supreme Court felt compelled to comment on the divergent earlier case law. It stated that in the present case, unlike in the earlier patent law decisions, there was a contractual obligation between the parties and, moreover, it was a matter of provisional enforcement. In my opinion, it is rather doubtful whether the existence of a contractual relationship can actually be relevant for the prerequisites of provisional legal protection. In any case, the patent law decisions were also essentially about provisional enforcement, namely of the patent law claim for injunctive relief. In its most recent case law on the CCP, the Federal Supreme Court again assumes with regard to a trademark dispute that a weighing of disadvantages is not necessary due to the possibility of obliging the requesting party to provide security. "Il suffit que la partie requérante risque un préjudice difficilement réparable (...); il n'est pas nécessaire que ce préjudice soit plus important ou plus vraisemblable que celui qu'encourrait la partie adverse au cas où les mesures requises seraient ordonnées."
30 In view of this fluctuating Supreme Court case law, it is not surprising that the question is also answered differently in doctrine and cantonal case law. A considerable part of the doctrine requires a weighing of the disadvantages of the requesting party if the provisional measures are not ordered against those of the opposing party if the provisional measures are ordered. There are nuanced differences, inter alia, as to whether all disadvantages or only disadvantages that cannot be easily remedied are to be taken into account in the prognosis of disadvantages. In some cases, the weighing of interests and disadvantages is dogmatically anchored in an independent requirement for an order of "proportionality in the narrower sense" and not in the prognosis of disadvantages. In order to justify a comprehensive weighing of interests and disadvantages, arguments are essentially based on the constitutionally enshrined principle of equality of rights (Art. 8 para. 2 BV) and the principle of procedural equality of arms (Art. 29 para. 1 BV), as well as the principle of proportionality (Art. 5 para. 2 BV and Art. 36 para. 3 BV). These principles required that, even in the area of interim legal protection, a balance of interests be sought between the party making the application and the party opposing the application. Furthermore, the comprehensive weighing of interests should be seen as a correlation to the structural reduction of the guarantee of correctness in the measure procedure. In contrast, another part of the doctrine takes the view that no comprehensive weighing of interests or disadvantages takes place within the scope of the examination of the claim, but that the proportionality test in the sense of necessity and requisiteness is only relevant at the level of the content of the measure. Their representatives argue that there is no legal basis for such a comprehensive weighing of interests and disadvantages. The statute of a comprehensive balancing of interests leads to a mixing of the prerequisites for an order and the structure of the measure, which is not provided for by law. If there was a claim for an injunction and a ground for an injunction, the court no longer had the discretion to decide. Finally, the method of a comprehensive prognosis of disadvantages also lacked practicability, since the quantification of disadvantages or the weighing of disadvantages only led to a "pseudo-accuracy" and considerably inflated the measure procedure.
ii. Appraisal and opinion
31 The dogmatic dispute is occasionally described as "not of a practical nature". In my opinion, this is only correct with regard to the question of whether the comprehensive weighing of interests and disadvantages should be considered as part of the prognosis of disadvantages or as an independent requirement for an order of "proportionality in the narrower sense". Of practical relevance, on the other hand, is the question of whether a comprehensive weighing of interests and disadvantages is required as a precondition for the measure or whether the interests of the opposing party are only taken into account in the content of the measure within the framework of a proportionality test limited to suitability and necessity, i.e. without an examination of reasonableness or proportionality in the narrower sense.
32 According to the wording of the law, the court takes "the necessary precautionary measures" (Art. 261 para. 1 CCP). According to the Dispatch, a measure is necessary if it is suitable and necessary in terms of time and subject matter to prevent the (not easily recoverable) disadvantage of the requesting party or to protect its credibly asserted claim. For this purpose, the Federal Council refers to the older decisions under patent law, which did not require a comprehensive weighing of disadvantages and interests. The CCP does not provide any indications for a consideration of the disadvantages or interests of the opposing party at the level of the requirements for an order or for an actual decision-making discretion of the court. On the contrary, it should be systematically noted that Art. 261 para. 1 CCP, unlike Art. 266 lit. c CCP for measures against the media, does not standardise the requirement of proportionality (at least in the narrower sense) in positive law.
33 From a teleological point of view, precautionary measures serve to secure the enforcement of substantive law with regard to the duration of the proceedings in the main action. It must be borne in mind that after the main proceedings have been conducted, it is in principle irrelevant how severely the decision on the main proceedings affects the legal position of the opposing party or, in the worst case, even endangers its existence. Admittedly, one may now object that the substantive claim of the petitioning party is only protected in summary measure proceedings with a reduced standard of proof and limitation of evidence. This is correct in itself, but the decision on the measure functionally decides on the bearing of the "risk of disadvantage" for the duration of the main proceedings. The opposite approach would also lead to a serious undermining of the precautionary legal protection, as a precautionary measure would generally not be taken, especially in the case of economically significant acts of infringement (the prohibition of which would generally also threaten the existence of the infringing party). In principle, I therefore agree with the view that refrains from a comprehensive weighing of interests at the level of the prerequisites for the order and only takes into account the proportionality, limited to suitability and necessity, or the interests of the opposing party at the level of the content of the measure.
D. Examination by the court of the entitlement to the injunction and the grounds for the injunction
1. General
34 The party making the application must make the claim for an injunction and the grounds for the injunction credible (Art. 261 para. 1 CCP). In adversarial injunction proceedings, the opposing party must also only make its defences and objections credible. The general distribution of the burden of proof according to Art. 8 CC applies, the so-called "burden of credibility". However, due to the reduced standard of proof, this is likely to be of lesser importance, as a "prima facie burden" decision is only conceivable in the case of identical degrees of probability of the asserted legally relevant facts.
35 As the measure procedure is a summary procedure (Art. 248 lit. d CCP), the parties may in principle only use documents to establish prima facie evidence (Art. 254 para. 1 CCP). Other evidence is only admissible if it does not significantly delay the proceedings, the purpose of the proceedings requires it or the court has to establish the facts ex officio (Art. 254 para. 2 CCP). Particularly in the case of technical questions, however, the court will regularly have to obtain expert advice in the form of a brief expert opinion if it lacks its own expertise.
2. The concept of prima facie evidence
36 According to the case law of the Federal Supreme Court, a fact is credible if the court is of the opinion, on the basis of objective aspects, that the fact asserted actually occurred in this way, even if it cannot be ruled out that it could have been otherwise. The standard of proof in the measure proceedings is thus reduced compared to the standard of proof of the court's full conviction that applies in the main proceedings. Nevertheless, the parties are well advised to prove the facts incumbent upon them, as far as possible, in accordance with the standard standard of proof.
37 There is a controversial discussion in doctrine and case law on the question of whether the standard of proof of prima facie evidence in measure proceedings is variable or whether it is a decision limit to be applied in all cases. Parts of the doctrine and case law postulate, for example, higher requirements for the prima facie case if the precautionary measures in question are particularly drastic or if they are performance measures that are equivalent to a provisional enforcement measure. Other authors and courts reject such a gradation of prima facie evidence for lack of a legal basis, with a view to procedural equality of arms or with reference to legal certainty. However, the court could meet the specific requirements of the individual case within the framework of the assessment of evidence, as well as impose different requirements on the manner in which the threshold of prima facie evidence was to be reached. Although the Federal Supreme Court considered the qualification of the type of precautionary measure to be decisive for the standard of proof of prima facie evidence in the case of a precautionary non-competition clause, it expressly rejected "a variable standard of proof", at least with regard to the standard of proof of the so-called "overwhelming probability", so that in my opinion the case law is not clear.
38 In my opinion, the dispute as to whether a flexible standard of proof or an abstract standard of proof with consideration of the individual case in the assessment of evidence is to be applied for the establishment of prima facie evidence appears to be predominantly of a theoretical nature, without any practical consequences being associated with it as a rule. This is also supported by the fact that the concept of prima facie evidence has been described in numerous ways, some of which are probably to be seen against the background of the idea of a flexible standard of proof, and that no detailed systematisation has taken place and in this respect it often seems random which formulation the courts use. In this sense, a similar result is likely to result in practice, regardless of whether the court defines the standard of proof of prima facie evidence flexibly or considers the abstract standard of proof to be fulfilled more or less quickly in the context of the assessment of evidence. Nevertheless, from a practical point of view, it should be noted that the question of the correct (possibly also flexible) standard of proof is in principle a question of law, whereas the achievement of the correct (flexible or abstract) standard of proof is considered a question of fact in the context of the assessment of evidence. This distinction is primarily relevant in view of the limited grounds for complaint in appeal proceedings against decisions on measures, which are only subject to appeal (see Art. 320 CCP). In federal court proceedings, on the other hand, only the violation of constitutional rights can usually be complained of in the case of decisions on measures (Art. 98 BGG). For dogmatic reasons, I believe that the adoption of an abstract standard of proof is to be advocated, since on the one hand the parties have the right to know in advance what degree of conviction is required of the court and on the other hand there is ultimately no legal basis and no need for a different interpretation of the concept of prima facie evidence within the same provision.
3. Prima facie case / intensity of examination
39 In addition to the existence of the facts giving rise to the claim, the concept of prima facie evidence should, according to the case law of the Federal Supreme Court, also include the examination of whether the claim asserted would result from these facts. In principle, only a summary examination was carried out in the measure proceedings. The claim of the petitioning party was to be protected as a precautionary measure if it did not prove to be futile on the basis of the credibly asserted facts giving rise to the claim. In practice, a more in-depth legal examination is carried out corresponding to increased requirements for the prima facie case of the facts giving rise to the claim, such as in the case of performance measures or provisional enforcement. In such cases, precautionary legal protection should only be granted if the claim appears to be promising or legally justified on the basis of the summary examination.
40 The establishment of prima facie evidence of the legal case meets with justified criticism in the doctrine, since questions of fact and law are mixed up here dogmatically. The prima facie case, as a (legal) contrast to the strict standard of proof, can per se only refer to the (claim-grounding) facts. The probable legal merits of the injunction claim, on the other hand, can only be examined in greater or lesser detail. In this respect, the standard of prima facie evidence could at most be applied by analogy. In the absence of a statutory provision, however, it is not permissible to impose on the parties, in particular on the party filing the application, the burden of establishing prima facie evidence of the legal situation, since the application for an injunction can be filed without legal justification (see Art. 221 para. 3 in conjunction with Art. 219 CCP).
41 In the doctrine it is then disputed whether a reduction of the legal examination depth in the measure procedure is justified at all. The assessment of this question is difficult not least because, as far as can be seen, no general-abstract criteria have yet been developed to distinguish between the merely (possibly increased) summary and the detailed examination of the legal situation. However, as far as time permits, the court will not make an "order light" anyway, but will assess the legal situation comprehensively, which is why the effects of the dispute will probably manifest themselves rather rarely in practice. From a doctrinal point of view, the principle of iura novit curia, which also applies in the measure procedure, speaks primarily in favour of a comprehensive legal examination on the basis of the (credibly submitted) facts. It must also be considered that the issuance of a precautionary measure not only constitutes a factual prejudice to the merits of the case, but also a serious encroachment on the interests of the opposing party. For this reason, the "principle of equal footing" or procedural equality of arms also requires a comprehensive legal examination. Against this backdrop, the Federal Supreme Court's opinion that it is sufficient in injunction proceedings if the claim for an injunction does not appear to be futile is to be rejected in principle, in line with what is probably the predominant doctrine. Rather, it is generally required that the claim is legally justified in view of the (credibly submitted) facts. In doing so, the court will primarily be guided by the law, the case law of the Federal Supreme Court or the prevailing doctrine, and secondly it will have to make a dutiful decision in the individual case. It should be noted, however, that the comprehensive examination in the measure procedure is not a final one.
III. Provision of security by the respondent
42 The court may refrain from ordering precautionary measures if the respondent provides adequate security (Art. 261 para. 2 CCP). In light of this, however, the provision of security does not avert the precautionary measure, but is itself - as an expression of the principle of proportionality at the level of the content of the measure - the precautionary measure with special content. The provision of security may therefore only be ordered if the requirements for the issuance of a precautionary measure are fulfilled.
43 Functionally, the provision of security by the opposing party under Art. 261 para. 2 CCP - unlike that of the requesting party under Art. 264 para. 2 CCP - is not about mitigating the consequences of an unjustified precautionary measure, but rather about effectively satisfying the requesting party's need for protection. This is the crux of the matter, which is why the provision of security by the respondent not only under previous law, but also under the CCP, has a "wallflower existence" in doctrine and case law. If there is a threat of a disadvantage that cannot be easily remedied, the security provided by the respondent, understood as a purely monetary security, can hardly fully satisfy the applicant's need for legal protection, since the security is merely a means of securing the enforcement of a possible claim for damages. The deposit is therefore not suitable to eliminate evidentiary difficulties in connection with the claim for damages or to provide relief for threatened immaterial disadvantages. On the other hand, if a mere security should be sufficient to satisfy the applicant's need for legal protection, the ground for the injunction, i.e. the disadvantage that cannot be easily remedied, should not be given in itself, so that the question of the respondent's adequate provision of security does not arise. It is therefore rightly stated that the respondent can regularly only disprove solvency problems by providing security.
44 It does not appear to be fully clarified whether other types of security are admissible in addition to the cash deposit or by way of a guarantee in the sense of an analogous application of Art. 100 para. 1 CCP. In the doctrine, for example, it is argued that an adequate security could consist in the fact that the disputed object of purchase is deposited in such a way that it cannot be accessed or that the allegedly unlawful state is removed. On the other hand, a mere written declaration on the part of the opposing party is generally not sufficient as adequate security. It is also discussed whether a cease-and-desist declaration containing the promise of a massive, specifically designated penalty payment in the event of a violation could serve as adequate security. Part of the doctrine rejects this, since the contractual penalty, even if it is substantial, cannot cover more than the disadvantage actually incurred, but does not constitute a penalty and the excess would have to be released by the respondent in the damages proceedings. In my opinion, this reasoning must be rejected. Insofar as the security deposit under Art. 261 para. 2 CCP is structured as a contractual penalty, its assessment is based on substantive law, i.e. the general Code of Obligations. According to Art. 161 para. 1 CO, the contractual penalty is forfeited even if the creditor has not suffered any damage. In this context - subject to an excessively high contractual penalty according to Art. 163 para. 3 CO - the entire contractual penalty is owed even if any effective damage is less than the penalty. However, if the defendant issues a cease-and-desist declaration that is secured by a massive contractual penalty, the claim for injunctive relief, i.e. the risk of first offence or repetition, should regularly cease to exist, so that the question of a security deposit does not even arise.
45 Since the principle of disposition also applies in injunction proceedings, the respondent to the application must submit an application for the provision of security with the application response, which - to the extent that the respondent can be expected to do so - substantiates the type and scope of the security. However, it is also possible to subsequently provide security to lift a precautionary measure that has already been ordered. Finally, the wording of the law in Art. 261 para. 2 CCP speaks of "provides", which indicates that it is not the application or the offer to provide security that is important, but the actual provision of the same by the respondent. This also corresponds to the rather strict case law of the Federal Supreme Court under the previous law. In the doctrine, this is sometimes criticised, as in this case the respondent does not even know how high the appropriate security should be. In fact, the court will have to be granted a certain flexibility in terms of time due to teleological considerations. As a rule, it is likely that the court that wishes to accept the security will set a deadline for the provision of the security after the party making the application has been heard. However, it is also possible to make the decision on the measure and make the measure dependent on the fact that the ordered security is not received within the set time limit. The court has discretion as to which course of action to take and this will probably depend to a large extent on the circumstances of the individual case. In contrast, the court has no discretion - contrary to the wording of the law "may" - with regard to the ordering of a security deposit, insofar as the respondent made a sufficient application and the court considers the security to be appropriate.
IV. Procedure for the issuance of precautionary measures
A. Jurisdiction in domestic cases
1. Local jurisdiction
a. General
46 Pursuant to Art. 13 CCP, unless the law provides otherwise, the court at the place where jurisdiction over the main matter is given (lit. a) or where the measure is to be enforced (lit. b) has mandatory jurisdiction to order precautionary measures. Art. 13 CCP provides the requesting party with an alternative mandatory place of jurisdiction at the place of the court with jurisdiction for the main matter or at the place of enforcement of the measure. The party making the request must establish the facts that give rise to jurisdiction. If the facts are doubly relevant, the court must, in principle, first consider the allegations of the party making the application when examining jurisdiction.
47 The place of jurisdiction at the place where jurisdiction over the substance of the matter is given is determined in accordance with the general rules on jurisdiction under Art. 9 et seq. or Art. 20 et seq. CCP. The place of enforcement is "where the content of the precautionary measure is to be given direct effect by the application of legal compulsion". It depends essentially on the content of the request for the measure. In the case of protective measures, it is usually at the place of the object to be secured and in the case of performance measures at the place of performance or compliance with the injunction.
b. Right of choice of the requesting party / coordination problems
48 Art. 13 CCP gives the requesting party a right to choose between the place of jurisdiction at the place of the main action and that at the place of enforcement. Since the law does not contain a corresponding differentiation, this right to choose exists in principle both for precautionary measures before and for those during the pendency of the main proceedings.
49 According to the prevailing view, however, the petitioning party's right to choose is limited if the main proceedings are already pending. In this case, the petitioning party should no longer be able to choose between all potential courts for the main action, but only between the one where the main action is pending and the one at the place of enforcement. This view must be accepted. For while the main action is already pending, there is in principle no further jurisdiction in the main action that could be invoked for the enforcement proceedings under Article 13(a) CCP due to the barring effect of the pending (main action) proceedings (cf. Article 64(1)(a) CCP). In addition, this view is supported by considerations of procedural economy, as two different courts on the merits should not have to deal with similar issues at the same time.
50 According to the prevailing view, the exercise of the right to choose the measure procedure prior to the pendency of the main action does not oblige the requesting party - in the absence of a fixation effect of the request for measure - to conduct the prosectuion action or the main action before the main action court chosen for the measure procedure. This view is to be agreed with de lege lata, although de lege ferenda it would in my opinion have to be considered whether in this situation there are also weighty procedural-economic reasons for not having two different potential courts of main instance deal with similar questions in the same dispute.
51 The petitioning party's right to choose consequently opens up a forum shopping option worth considering in legal advice. It is possible, for example, to take advantage of any existing differences in domestic and intercantonal jurisdiction, to challenge the respondent in the measure proceedings while the main action is pending at the court of the place of enforcement and thus to open a "second front" or, after a negative measure decision, to initiate the main action proceedings at an alternative (possibly more well-meaning and not pre-judged) main action court.
c. Choice of court agreements
52 In view of the mandatory nature of Art. 13 CCP, it is inadmissible to enter into a jurisdiction agreement that relates solely to the jurisdiction to issue precautionary measures (cf. Art. 9 para. 2 CCP). It is questionable, however, to what extent the agreement on jurisdiction in the main action affects the jurisdiction to take measures under Art. 13 CCP.
53 According to the prevailing view, the prorogation and derogation effect of an agreement on the place of jurisdiction in the main action affects the jurisdiction to take measures at the place of the main action (Art. 13 lit. a CCP), although even in the case of an exclusive agreement on the place of jurisdiction in the main action, jurisdiction to take measures at the place of enforcement (Art. 13 lit. b) still remains. This view is to be agreed with. Art. 13 lit. a of the CCP does not itself regulate the main courts relevant for the jurisdiction to take action, but refers to the general rules on jurisdiction. If an agreement on the place of jurisdiction is permissible in the main action, its prorogation and derogation effect must indirectly affect the scope of application of Art. 13 lit. a CCP. However, in addition to the (if applicable, also exclusively) agreed main proceedings court, the measure jurisdiction at the place of enforcement continues to exist, as this measure jurisdiction is directly declared mandatory by Art. 13 lit. b CCP.
2. Subject-matter jurisdiction
54 The substantive and functional jurisdiction is in principle governed by cantonal law (Art. 4 para. 1 CCP). An exception exists if the CCP requires a dispute to be adjudicated by a single cantonal court (Art. 5 para. 1 CCP) or if a canton provides for a commercial court for commercial disputes (Art. 6 para. 1 CCP). In these cases, this court is also mandatorily competent to order precautionary measures prior to the pendency of the main action (Art. 5 para. 2 and Art. 6 para. 2 CCP). According to the prevailing view, the same applies - although not yet provided for by law - in the context of a direct action before the higher court (Art. 8 CCP).
55 In the doctrine, if the plaintiff (or petitioning) party can choose between the commercial court and the ordinary court according to Art. 6 para. 3 CCP, it is argued for reasons of procedural economy that the choice of the competent measure court for the measure proceedings consumes the choice of the court in the main proceedings. In my opinion, this view must be rejected - despite the undisputed procedural-economic advantages of such an approach. The application for a measure does not have any fixing effect on the main proceedings with regard to the local jurisdiction. From a systematic perspective, nothing else can apply to the subject-matter jurisdiction, especially since, depending on the concrete constellation, a commercial court does not necessarily have to exist at the alternative (local) place of jurisdiction. The argument of procedural economy also fails because the current Art. 13 CCP allows forum shopping. This decision must be accepted de lege lata.
B. International circumstances
1. Jurisdiction
a. International jurisdiction under the IPRG
i. General
56 Within the scope of application of the IPRG, according to Art. 10 IPRG, the Swiss courts or authorities that have jurisdiction as to the substance of the matter (lit. a) or those at the place where the measure is to be enforced (lit. b) have jurisdiction to order provisional measures; in addition, there are further specific measure jurisdictions in the special chapters of the IPRG. Unlike the predecessor provision, the provision based on Art. 13 CCP thus no longer governs only international jurisdiction, but also local jurisdiction.
57 With regard to the determination of the place of jurisdiction at the place of the main action, the relevant provisions of the IPRG must be taken into account. For the place of enforcement, on the other hand, reference can in principle be made to the remarks on Art. 13 CCP.
ii. Right of choice of the requesting party / coordination problems
58 Art. 10 IPRG gives the requesting party the right to choose between the place of jurisdiction at the place of the main action and the place of enforcement. Although Art. 10 IPRG - as well as Art. 13 CCP - does not differentiate between precautionary measures before and during the pendency of the main proceedings, the extent of the right to choose when foreign or Swiss main proceedings are pending is disputed in detail.
59 Under Willkürkognition, the Federal Supreme Court has protected both the view that the Swiss court can in any case have subsidiary jurisdiction based on the place of jurisdiction of the main action if the foreign court already seised has not ordered any precautionary measures, and the view that the undisputed international jurisdiction of the foreign court on the main action precludes the ordering of precautionary measures based on the place of jurisdiction of the main action. Opinions are also divided in the doctrine. There are probably better reasons for denying the Swiss courts jurisdiction to order measures on the basis of a potential Swiss place of jurisdiction for the main issue in pending foreign proceedings on the main issue. It may be argued that despite the stay of the main proceedings (Art. 9 IPRG), it is not guaranteed that a (measure) decision that can be recognised in Switzerland can be issued in foreign main proceedings that are already pending and that Swiss law bears a residual responsibility for the effective protection of the subjective rights of the parties concerned. However, in my opinion, it is sufficient for this purpose to provide the requesting party with the alternative measure jurisdiction at the Swiss place of enforcement. Even if the main proceedings are pending in Switzerland, the requesting party cannot (as with Art. 13 CCP) choose another potential Swiss court for the main proceedings.
60 In contrast to Art. 13 CCP, according to the case law of the Federal Supreme Court, the place of enforcement at the Swiss place of enforcement is not available unconditionally if the main proceedings are already pending abroad. According to the case law on Art. 10 aIPRG, which stems from international divorce law, an increased necessity or urgency for the issuance of domestic measures is required for jurisdiction to issue measures at the Swiss place of enforcement when foreign main proceedings are pending. According to the Federal Supreme Court, this is to be affirmed in the following groups of cases: (i) if the law applicable by the foreign court does not have a provision comparable to Art. 276 CCP; (ii) if decisions on measures by the foreign divorce court cannot be enforced at the Swiss domicile of the parties; (iii) if measures are to be ordered to secure future enforcement in property in Switzerland; (iv) if there is imminent danger, or (v) if it cannot be expected that the foreign court will decide within a reasonable period of time. The Federal Supreme Court first referred to this case law in a dispute under inheritance law in relation to Art. 10 aIPRG and then confirmed it also under Art. 10 IPRG.
61 Whether this established case law of the Federal Supreme Court is convincing in all aspects seems questionable. At first glance, it may be argued that, due to respect for the foreign court already seised of the matter and the ideal of international unity of decision-making, it would not be appropriate to affirm unconditional jurisdiction over the Swiss place of enforcement. However, this argument is only partially convincing if one considers that the recognition and enforceability of foreign decisions on measures under the ICCPR is in many cases not secured by supreme court decisions. On the other hand, the fact that precautionary measures of a court can usually be executed more quickly and smoothly at the place of enforcement speaks all the more in favour of unconditional alternative measure jurisdiction at the place of enforcement, especially in international relationships. Against this background, it seems appropriate that the Federal Supreme Court's requirement of increased necessity or urgency is understood generously.
62 Finally, it appears unclear whether the restrictive prerequisites for invoking the place of enforcement are also to be applied in the case of main proceedings already pending in Switzerland. In my opinion, this question could certainly be answered in the affirmative - in view of the far smaller interest of the requesting party in a measure jurisdiction at the Swiss place of enforcement if the main action is pending before a Swiss instead of a foreign main action court. However, since Art. 10 IPRG is largely based on Art. 13 CCP and a corresponding forum shopping is permitted there, there are probably better reasons for affirming an alternative jurisdiction to take measures at the Swiss place of enforcement if the main proceedings are pending in Switzerland, especially since there is in principle no explicit legal basis for the restrictive requirements anyway.
iii. Agreements on jurisdiction
63 According to the prevailing doctrine, the prorogation and derogation effect of a choice of court agreement in the main action is also reflected in the jurisdiction of the court at the place of the main action (Art. 10 lit. a IPRG), so that only the agreed courts can be seised under this title. On the other hand, it is less clear under the IPRG whether or not an exclusive agreement on the place of jurisdiction in the main action retains jurisdiction to take action at the Swiss place of enforcement (Art. 10 lit. b IPRG). In this respect, I believe that two sets of questions must be distinguished: On the one hand, the question arises whether the jurisdiction to take measures at the Swiss place of enforcement - as under the CCP - is of a mandatory nature, so that a derogation effect of an agreement on the place of jurisdiction in the main action must be rejected for this reason alone. On the other hand, it must be examined whether, from the perspective of the parties' intentions, an agreement on the place of jurisdiction in the main action covers the jurisdiction to take measures at the place of enforcement in the specific individual case.
64 The wording of Art. 10 IPRG, unlike Art. 13 CCP, does not explicitly state that the jurisdiction to take action at the place of enforcement is of a mandatory nature. In my opinion, however, it cannot be concluded per se that this is not of a mandatory nature, since the IPRG follows a different regulatory technique than the CCP. According to the IPRG, the mandatory nature of a jurisdiction is to be determined on the basis of the interpretation of the specific norm. Admittedly, the mandatory nature of Art. 13 lit. b CCP for domestic cases does not automatically mean that the place of jurisdiction at the Swiss place of enforcement is also mandatory under the IPRG. Nevertheless, it may be argued that Art. 10 IPRG was largely based on Art. 13 CCP. Moreover, it does not appear to be entirely congruent in terms of value if one justifies the mandatory nature in domestic circumstances with the fact that a measure can be ordered and enforced more quickly at the place of enforcement, but denies this in international circumstances, although there are considerable uncertainties here, at least under the IPRG, with regard to the recognition and enforcement of foreign decisions on measures. In this sense, I believe that the right to effective legal protection also argues in favour of a mandatory nature of the jurisdiction of the measure at the Swiss place of enforcement.
65 In the doctrine, on the other hand, the discussion does not revolve around the question of the mandatory nature of the jurisdiction of the measure at the place of enforcement, but rather around that of the will of the parties. Of course, this question only arises if one does not assume the mandatory nature of the jurisdiction to take measures at the place of enforcement. According to a substantial part of the doctrine, the parties are not likely to consider all contingencies of precautionary legal protection when concluding the agreement on jurisdiction in the main matter, so that a derogation of jurisdiction at the place of enforcement does not correspond to the parties' will in case of doubt and its acceptance is only justified in this respect if the agreement explicitly refers to precautionary legal protection. The case law, on the other hand, tends to be more generous in that it generally assumes that the derogation contained in the agreement on the place of jurisdiction also refers to precautionary legal protection. However, the situation in which effective legal protection is thwarted altogether by the exclusive choice of court agreement is no longer covered by the parties' will. In this sense, it must remain possible, despite the agreement on the place of jurisdiction, to seek precautionary legal protection before a court other than the one that is exclusively prorogued, at least if this other court alone is in a position to order an immediately enforceable measure in good time.
b. International jurisdiction under the Lugano Convention
i. General
66 The Lugano Convention applies if the main claim to be secured qualifies as a civil and commercial matter and is not subject to any exclusion. Furthermore, subject to a choice of forum agreement (Art. 23 Lugano Convention) or exclusive jurisdiction (Art. 22 Lugano Convention), the defendant must be domiciled in a Contracting State (Art. 1, Art. 2 and Art. 4(1) Lugano Convention). In its scope of application, the Lugano Convention takes precedence over the IPRG (see Art. 1 para. 2 IPRG).
67 Under the Lugano Convention, the main court designated in accordance with Art. 2 and Art. 5 et seq. of the ICC has primary jurisdiction to order "its" (national) provisional measures. Lugano Convention has primary jurisdiction. Although this is not expressly regulated in the Lugano Convention, it follows from the internationally widely recognised principle, confirmed by the ECJ, that the court with jurisdiction in the main action must also be able to order precautionary measures. In addition, under restrictive conditions, there is also a jurisdiction to order measures under Art. 31 Lugano Convention in conjunction with national law.
ii. Jurisdiction to take measures under Art. 31 Lugano Convention in conjunction with national law
68 In addition to the court having jurisdiction as to the substance of the matter, provisional, including protective, measures provided for by the law of a Contracting State may be applied for in the courts of that State under Art. 31 Lugano even if another Contracting State has jurisdiction as to the substance of the matter. Art. 31 LugÜ is thus a gateway for exorbitant (national) measure courts, which is why practice seeks to limit its scope of application. This restriction is essentially carried out via the autonomous concept of provisional measure and the additional requirement of a real link.
69 According to the ECJ, provisional measures within the meaning of Art. 31 Lugano Convention are only measures intended to prevent a change in the factual or legal situation in order to secure rights whose recognition is otherwise sought before the court having jurisdiction as to the substance of the matter. Moreover, in view of the possibility of circumventing the main courts provided for in the Lugano Convention by means of exorbitant measures, the ECJ requires that there must be a real link between the subject matter of the requested measure and the territorial jurisdiction of the court seised. The ECJ is even more restrictive in the case of performance measures that result in provisional enforcement of the main claim. For such performance measures, jurisdiction only exists via Art. 31 Lugano Convention if the requesting party guarantees, on the basis of a security deposit, that the opposing party will receive back the amount already paid if it prevails in the main action and the measure only concerns assets that are or should be located in the local jurisdiction of the measure court.
iii. Right of choice of the requesting party / coordination problems
70 According to the prevailing view, the requesting party may, in principle, choose among all courts with virtual jurisdiction under the Lugano Convention before the pendency of the main action. However, the right to choose can only refer to those main courts that the requesting party could itself bring an action before.
71 On the other hand, it does not appear to be fully clarified whether the right to choose the virtual courts for the main proceedings continues to exist even after the main proceedings have become pending in another contracting state. Part of the doctrine grants the requesting party an unlimited right to choose between the virtual main courts in this case as well. This is justified by the fact that nothing else can be inferred from the Convention and that the contrary view severely limits the effectiveness of precautionary legal protection in Europe. Other doctrines, on the other hand, deny an unlimited right of choice and grant other virtual main courts jurisdiction to take measures only under the restrictive conditions of Art. 31 Lugano Convention in conjunction with national law. In my opinion, the latter view is more likely to be accepted. Since national law regularly provides for jurisdiction to take measures at the place of enforcement or similar places, effective precautionary legal protection is guaranteed by Art. 31 Lugano Convention and national law. Therefore, there is no need for a further unlimited jurisdiction to take measures at a main court that only theoretically has jurisdiction.
iv. Choice of Court Agreements
72 Under the conditions of Art. 23 Lugano Convention, agreements on jurisdiction can also be concluded under the Lugano Convention, which have an effect on the jurisdiction to take measures. The extent of the derogating effect of an exclusive choice of court agreement on the jurisdiction of the court of the place of the main action and on the jurisdiction of the court of the place of the main action under Art. 31 Lugano Convention in connection with national law is not entirely clear.
73 According to the prevailing view, an exclusive choice of court agreement in the main action at any rate derogates from the jurisdiction to take action in other virtual courts for the main action. In my opinion, this view is correct. In this constellation, other main courts no longer have jurisdiction on the merits of the case, so that the jurisdiction to take action of virtual main courts based on the jurisdiction on the merits of the case must also cease under the Lugano Convention. Whether the jurisdiction to take measures under Art. 31 Lugano Convention can also be derogated from in connection with national law, on the other hand, is more difficult to assess. It is already disputed whether this question is to be assessed according to the lex fori or autonomously according to the Lugano Convention. According to the Federal Supreme Court and probably the predominant Swiss doctrine, this question is governed by the lex fori, i.e. in Switzerland by the IPRG. According to the court, an exclusive choice of court agreement on the merits of the case generally also derogates from the jurisdiction to order a measure under Art. 31 Lugano Convention in conjunction with national law, to the extent that this court alone is not in a position to order an immediately enforceable measure in due time. In my opinion, the prerequisites and effects of a choice of forum agreement are governed independently and conclusively by the Lugano Convention, so that despite the blanket reference in Art. 31 Lugano Convention, recourse to national law is not permissible for this question. According to the Lugano Convention, the parties' intention must be decisive for the assessment of the derogation effect, whereby in my opinion, in the absence of an express reference to the jurisdiction to take measures, it must generally be assumed that the parties did not intend to derogate from it. 2.
2. Applicable law
74 The question of the law applicable to provisional measures is very controversial, at least if the IPRG does not regulate the question itself (see e.g. Art. 62 para. 2 IPRG).
75 In the doctrine, a tendency is emerging to subject the question of the claim for an injunction to the lex causae applicable in the main case, but to assess the other procedural prerequisites and aspects according to the lex fori. A decision of the Federal Supreme Court on attachment also goes in this direction, according to which the question of the maturity of the attachment claim is not simply to be assessed according to Swiss law, but according to the applicable foreign law. In my opinion, this seems appropriate. Precautionary measures are not an end in themselves, but serve the realisation of the substantive law in the main matter. If, however, foreign law is applicable in the main action, the assessment of the claim for an injunction in the measure proceedings cannot, in principle, depend on whether or not it would exist according to the lex fori that may not be applicable in the main action. For the same reason, if the main proceedings are pending abroad, the determination of the lex causae should not be based on the Swiss IPRG, but on the IPR of the foreign court state - insofar as the Swiss court is required to respect its jurisdiction.
76 Another question, however, is how the content of the foreign law is to be determined. In principle, this is also to be assessed in the measure proceedings according to Art. 16 IPRG. According to Art. 16(1) IPRG, the content of the applicable foreign law is to be determined ex officio, whereby the cooperation of the parties may be required. In property matters, the parties may even be required to provide evidence of the foreign law. If the foreign law cannot be ascertained, Swiss law is to be applied as a substitute according to Art. 16, para. 2 IPRG. It should be noted, however, that according to the Federal Supreme Court, the requirements for establishing the foreign law before the court decrease with the increasing urgency of the measure proceedings, so that it is in any case not arbitrary in attachment proceedings (and probably also in other superprovisional measure proceedings) to apply Swiss substitute law directly. In this sense, the requesting party who is interested in the application of foreign law is well advised to provide evidence of the foreign law as far as possible on its own initiative.
3 Recognition and enforcement
a. Recognition and enforcement under the IPRG
77 The recognition of foreign decisions on provisional measures under Art. 25 et seq. IPRG is controversial in doctrine, unless specifically regulated in special norms of the IPRG (see e.g. Art. 96 para. 3 IPRG), and - as far as can be seen - has still not been clarified by the Federal Supreme Court. A detailed presentation of the state of opinion in all its ramifications is beyond the scope of this commentary, so that it will be dispensed with here. The discussion mainly revolves around whether precautionary measure decisions can fulfil the prerequisite of formal legal force or finality according to Art. 25 lit. b IPRG. In my opinion, the answer tends to be in the affirmative, since decisions on measures can also be formally final, i.e. they can no longer be challenged by ordinary legal remedies. Decisions on measures can therefore certainly fulfil the first alternative of Art. 25 lit. b IPRG, which is why in my opinion their recognisability and enforceability cannot be denied in principle under the IPRG.
b. Recognition and enforcement under the Lugano Convention
78 Extraterritorial orders for interim relief of a contracting state within the material scope of application of the Lugano Convention are in principle judgments within the meaning of Art. 32 Lugano Convention. As such, they can be recognised in all other Contracting States under the general conditions of Art. 33 et seq. As such, they can be recognised and enforced or declared enforceable in all other Contracting States. In addition to the general requirements, however, certain special features must be observed in the case of decisions on measures.
79 According to the ECJ, for a decision on a measure to be recognised and enforceable, the respondent must have been granted the right to be heard in an adversarial procedure in the state of origin. It is sufficient if the respondent could theoretically have been heard or could theoretically have challenged the order before it was recognised and enforced in the state of origin. This case law has consequences above all for the recognition and enforceability of so-called ex parte decisions or super provisional measures. Under Swiss law, after superprovisional measure proceedings, ex officio provisional measure proceedings take place to ensure that the respondent is heard and to review the superprovisional measure decision (cf. Art. 263 para. 2 CCP). Against this background, it could be questionable whether the (Swiss) superprovisional measure decision can be recognised and enforced under the Lugano Convention already after the right to be heard has been granted, but before the confirmation procedure has been completed in the other contracting states. The right to be heard includes not only the right for the respondent to make its views known, but also - at least to some extent - the duty of the court to take these views into account in its decision. In my opinion, there are better reasons for answering the question in the negative, which means that superprovisional measure decisions under Swiss law cannot be recognised and enforced under the Lugano Convention in the other contracting states. However, the decision confirming the superprovisional measure can be recognised and enforced under the Lugano Convention. Foreign superprovisional measure decisions, on the other hand, can be recognised and enforced in Switzerland under the Lugano Convention if the time limit for appeal or a time limit for conducting adversarial proceedings has already expired without being used.
80 Special features then exist in the case of decisions on measures that are based on jurisdiction under Art. 31 Lugano Convention in conjunction with national law. According to the ECJ, in the case of such decisions on a performance measure in the context of recognition and enforcement, it must be examined whether, according to the criteria of the ECJ, this constitutes a provisional measure within the meaning of Art. 31 Lugano Convention, i.e. the performance measure was only ordered against a security deposit and only concerns assets that are or should be located in the local jurisdiction of the measure court. The ECJ thereby holds, mutatis mutandis, that this examination is not a proscribed review of the jurisdiction of the court of origin. Whether this dogmatic classification is correct seems at least debatable, since in any case the jurisdiction of the court of origin is de facto reviewed. It does not seem entirely clear to what extent the element of real connection required for jurisdiction under Art. 31 Lugano is to be verified at the stage of recognition and enforcement. With regard to performance measures, the question should in any case be largely superfluous due to the conceptual limitation of provisional measures to assets in the local jurisdiction of the court of origin. From the comparable protective idea that the real link should also prevent circumvention of the rules on jurisdiction in the main action, it seems quite obvious to me that the real link should also be checked for the other types of measures at the stage of recognition and enforcement. According to what has been said, there should therefore regularly be hardly any room for recognition and enforcement of extraterritorial measures based on Art. 31 Lugano Convention in conjunction with national law. In the Brussels I Regulation, the recognition and enforcement of decisions on measures taken under Article 35 of the Brussels I Regulation in conjunction with national law was therefore even expressly excluded (see Article 2(a)(2) of the Brussels I Regulation).
C. Application for a measure
81 The procedure for taking measures is initiated by a request, which in principle must be made in the forms pursuant to Art. 130 of the Code of Civil Procedure, but in simple or urgent cases may also be submitted orally to the court for the record (see Art. 252 of the Code of Civil Procedure). In other respects, the general requirements under Art. 221 CCP (in conjunction with Art. 219 CCP) apply in principle.
82 The extent to which a specification of the requested precautionary measure is necessary is discussed in the doctrine. Some argue that, in view of the broad discretion of the court in determining the content, a generally formulated legal request stating the objective of legal protection is sufficient and that the court is not bound by a specific legal request. The objection is that this contradicts the importance of the legal claim (especially with regard to the opposing party's defence options) and the principle of disposition, seriously jeopardises judicial independence and the requesting party would otherwise be causally liable for a measure that it may not have intended. In principle, the requirement of a specific request for a measure is to be assumed. In view of the court's considerable discretionary power, however, it is permissible in my opinion for the court to order another (more suitable) or a milder measure than the one requested. This is at least as long as the measure is not "more drastic" for the respondent in the matter. In this sense, the principle of disposition applies only to a limited extent.
D. Determination of the legal costs of the measure proceedings and their transfer
83 With regard to the costs of proceedings and their transfer, the general provisions under Art. 95 et seq. of the Code of Civil Procedure apply in principle. CCP apply, whereby according to Art. 99 para. 3 lit. c CCP the respondent cannot demand security for its party compensation. According to Art. 104 para. 3 CCP, the legal costs of the measure proceedings may be decided together with the main matter. A distinction must be made between the measure proceedings before and during the main proceedings.
84 According to the general view, the costs of the measure proceedings during the main proceedings are generally only determined and allocated together with the final decision in the main proceedings (and according to its outcome) if the request for measure is approved. If the application for a measure is rejected while the main proceedings are pending, the party requesting the measure is liable for the costs of the measure proceedings even if it wins the main proceedings. The court may take this into account either in the decision on the measure or in the decision on the merits.
85 While the general view is that if the application for a measure is rejected prior to the pendency of the main proceedings, the party making the application must finally bear the costs of the proceedings pursuant to Art. 106 para. 1 CCP, the legal situation is extremely controversial if the application is upheld. In my opinion, the predominant view is rightly that the legal costs of the proceedings for measures of action should in this case be temporarily imposed on the successful applicant party, whereby the obligation to pay compensation to the party is only ordered in the event that prosecution is not carried out. In any case, this corresponds mutatis mutandis to the case law of the Federal Supreme Court on the precautionary presentation of evidence. Nevertheless, in my opinion, in cases in which the opposing party acknowledges the claim for an injunction in a procedurally relevant manner during the ongoing prosecution period, a modification of the transfer of costs in favour of the requesting party in the measure procedure must be reserved via Art. 268 para. 1 CCP.
E. Appeals against decisions on measures
1. Appeals under the Code of Civil Procedure
a. Appeal (Art. 308 ff. CCP)
86 Appeals against first instance decisions on precautionary measures are in principle open, provided the dispute is not pecuniary or, in the case of a pecuniary dispute, the amount in dispute of the most recently maintained legal claims exceeds CHF 10,000 (Art. 308 para. 1 lit. b and para. 2 CCP) and there is no exception under Art. 309 CCP. The wording of the CCP is not entirely precise in this respect, as only first-instance measure decisions of a lower cantonal court can be considered as an object of challenge on appeal. First-instance decisions on measures by the sole cantonal court (cf. Art. 5 para. 2 CCP, Art. 6 para. 5 CCP), on the other hand, can only be appealed under the Federal Supreme Court Act.
87 Whether first-instance decisions on measures constitute an independent category of decisions is disputed in the doctrine. In my opinion, the question is mainly of a theoretical nature, without any practical consequences. Even those opinions that consider decisions on precautionary measures as a separate type of decision hold that not every decision issued in the measure procedure can be considered a "decision on precautionary measures" within the meaning of Art. 308 para. 1 lit. b CCP (or Art. 319 lit. a CCP). Thus, orders of the measures court that would not qualify as a final or interim decision in the main proceedings (e.g. an edition order) were also procedural orders that were also subject to appeal in the measures proceedings only under the conditions of Art. 319 lit. b CCP. Likewise, decisions of the disciplinary court that were made in the context of the disciplinary proceedings and could be qualified as interim decisions in the main proceedings (e.g. regarding jurisdiction) were in any case subject to the regulation under Art. 237 para. 2 CCP. In this respect, the significance of the explicit naming of decisions on precautionary measures is limited to the decision approving or rejecting the measure or the decision not to enter in the measure proceedings. It seems doubtful whether this justifies the assumption of an independent type of decision, especially since according to the appeal system of the CCP it would in any case not be decisive whether one would like to regard the measure decision as a final, partial or also as an interim decision, since it is subject to the same rules of appeal.
88 It is then disputed whether an appeal is admissible against superprovisional decisions on measures. According to the prevailing opinion, superprovisional measures cannot be challenged with an appeal due to the lack of an interest in legal protection, both when the measure is ordered and when it is refused. In my opinion, this exclusion of the right to appeal is to be rejected, together with a substantial part of the doctrine, at least in the case of refusal of the superprovisional measure. According to Art. 265 para. 1 CCP, the superprovisional measure requires "special urgency", which exists if it appears credible that an abrupt intervention (without hearing the respondent) is necessary in order to avert unreasonable disadvantages. If the court denies such a special urgency and the requesting party has no legal remedy against it, the legal system accepts that an unjustified denial of the special urgency means that no effective legal protection is possible in the "normal measure proceedings". Nevertheless, even the Federal Supreme Court allows a direct appeal to the Federal Supreme Court in the sense of an exception in certain particularly sensitive matters.
89 It also does not seem to be entirely clear how the amount in dispute or the pecuniary nature of the decision on the measure is determined. The predominant opinion is that the amount in dispute or the nature of the precautionary measure itself is decisive. Others, however, focus on the merits of the case, as in the case of partial and interim decisions. In principle, the Federal Supreme Court follows the latter view for the Federal Supreme Court Act. Insofar as it qualifies the precautionary measure in question as an independently opened interim decision (within the meaning of the Federal Supreme Court Act), it is based on the amount in dispute or the nature of the main matter, insofar as the main matter is still in dispute. Only if it exceptionally qualifies the decision on the measure as a final decision does it generally appear to be based on the amount in dispute of the measure. As far as can be seen, the Federal Supreme Court has not yet made any direct pronouncements on the legal situation under Art. 308 para. 2 CCP. In my opinion, for reasons of congruence of the appellate system, the same principles must be assumed for the CCP as for the Federal Supreme Court proceedings. Accordingly, the amount in dispute or the nature of the main matter must be taken into account, insofar as the measure (still) serves to secure a claim on the main matter. This applies in principle both if the measure was issued during proceedings on the merits and if the precautionary measure was issued before the pendency of the main action.
90 Otherwise, the general provisions pursuant to Art. 310 et seq. CCP apply to the appeal proceedings, although there are certain special features. Since decisions on measures are issued in summary proceedings (Art. 248 lit. d CCP), the appeal period is only 10 days (Art. 314 para. 1 CCP), for which no court holidays apply (Art. 145 para. 2 lit. b CCP). A cross-appeal is inadmissible (Art. 314 para. 2 CCP). Finally, appeals against decisions on precautionary measures do not have suspensive effect (Art. 315 para. 4 lit. b CCP). However, this may be granted by way of exception if the party concerned is threatened with a disadvantage that cannot be easily remedied (Art. 315 para. 5 CCP). According to the Federal Supreme Court, a stay of execution may not be denied if it concerns a performance measure that may have a final effect, unless the appeal appears to be manifestly unfounded or manifestly inadmissible from the outset.
b. Appeal (Art. 319 ff. CCP)
91 An appeal may be lodged against decisions of the first instance on precautionary measures that are not appealable (Art. 319 lit. a CCP). Of course, only decisions on measures by a lower cantonal instance can be appealed. The general provisions of Art. 319 ff. of the Code of Civil Procedure apply to the appeal procedure. CCP, whereby the appeal period is only 10 days and no court holidays apply (see Art. 321 para. 2 CCP; Art. 145 para. 2 lit. b CCP).
c. Revision (Art. 328 ff. CCP)
92 Whether precautionary measure decisions are subject to the "emergency remedy" of revision at all does not yet appear to be fully clarified. While some authors generally reject this because a precautionary measure does not become substantively final, another - in my opinion correct - view makes a differentiation. The decisive factor is the extent to which a precautionary measure can be modified or revoked in the case of an order or newly demanded in the case of a refusal. The consequence of this is that, as a rule, decisions on measures are not subject to revision. If, for example, a request for a measure is rejected, it is in principle open to the requesting party to support a new request with facts and evidence that have not yet been taken into account. However, in view of the Federal Supreme Court's practice that, according to Art. 268 CCP, no retroactive amendment or retroactive revocation is possible in the event of changed circumstances or precautionary measures that subsequently prove to be unjustified, cases are certainly conceivable in which the consequences of a measure decision cannot be fully corrected. This is particularly the case if the respondent has already had to pay benefits, in particular provisional maintenance payments, as a result of a performance measure, but cannot retroactively reclaim them either under Article 268 CCP or by means of an action for damages under Article 264(2) CCP or a substantive action for modification. For these cases, it appears necessary from the perspective of the rule of law to allow the revision of a measure decision. In all other respects, the general provisions pursuant to Art. 328 et seq. It should be noted that, in contrast to Art. 268 of the Code of Civil Procedure, only non-genuine novelties can constitute grounds for revision (Art. 328 para. 1 lit. a Code of Civil Procedure).
2. Appeal under the Federal Supreme Court Act
93 The appeal or complaint decision of the last cantonal instance or the precautionary measure decision of a single cantonal instance can in principle be challenged under the general provisions with an appeal in civil matters (Art. 72 et seq. FSCA) or with a subsidiary constitutional complaint (Art. 113 et seq. FSCA). In both cases, however, as a rule only the violation of constitutional rights can be complained of (see Art. 98 FSCA; cf. also Art. 116 FSCA).
94 For appeals to the Federal Supreme Court, it should be noted in particular that decisions on measures are generally considered to be independently issued preliminary and interim decisions and can therefore only be challenged with both types of appeal if they may cause an irreparable disadvantage of a legal nature, or if the approval of the appeal would immediately bring about a final decision and thus save a significant amount of time and costs (Art. 93 para. 1 FSCA). Otherwise, the appeal decision or the measure decision can only be challenged within the framework of the appeal against the final decision, insofar as it still affects the content of the final decision (Art. 93 para. 3 FSCA), which is hardly ever likely to be the case.
The author would like to thank Prof. Dr. iur. Tanja Domej, RAin Carmen Honegger, MLaw, LLM (London), Natascha Honegger, MLaw, RA Christian Stähle, MLaw, as well as Julius Schumann, Mag. iur., for their critical review and numerous and valuable suggestions during the development of this commentary.
Doctrine and case law are taken into account until July 2022.
Materials
Botschaft zur Schweizerischen Zivilprozessordnung (ZPO) vom 28. Juni 2006, BBl 2006, S. 7221 ff. (zit. Botschaft ZPO).
Botschaft zur Änderung der Schweizerischen Zivilprozessordnung (Verbesserung der Praxistauglichkeit und der Rechtsdurchsetzung vom 26. Februar 2020, BBl 2020, S. 2697 ff. (zit. Botschaft Änderung ZPO).
Bibliography
Alder Daniel, Der einstweilige Rechtsschutz im Immaterialgüterrecht, Diss., Bern 1993 = Schriften zum Medien- und Immaterialgüterrecht Nr. 33.
Arens Peter, Verfügungsanspruch und Interessenabwägung beim Erlass einstweiliger Verfügungen, in: Ficker Hans Claudius/König Detlef/Kreuzer Karl F./Leser Hans G./Frhr. Marschall von Bieberstein Wolfgang/Schlechtriem Peter (Hrsg.), Festschrift für Ernst von Caemmerer, Tübingen 1978, S. 75 ff.
Baker & McKenzie (Hrsg.), Handkommentar zur schweizerischen Zivilprozessordnung, Bern 2010 (zit. SHK-BearbeiterIn).
Baumgartner Samuel/Dolge Annette/Markus Alexander R./Spühler Karl, Schweizerisches Zivilprozessrecht: mit Grundzügen des internationalen Zivilprozessrechts, 10. Auflage, Bern 2018.
Berti Stephen V., Vorsorgliche Massnahmen im Schweizerischen Zivilprozess, ZSR 116/1997, S. 171 ff.
Berger-Steiner Isabelle, Das Beweismass im Privatrecht: Eine dogmatische Untersuchung mit Erkenntniswert für die Praxis und die Rechtsfigur der Wahrscheinlichkeitshaftung, Diss., Bern 2007 = Abhandlungen zum schweizerischen Recht Nr. 745.
Bohnet François, Procédure civile, 3. Auflage, Basel 2021.
Bohnet François/Haldy Jacques/Jeandin Nicolas/Tappy Denis (Hrsg.), Commentaire romande Code de procédure civile, 2. Auflage, Basel 2019 (zit. CR-BearbeiterIn).
Briner Alfred, Vorsorgliche Massnahmen im schweizerischen Immaterialgüterrecht: Ein Überblick über die neuere Entwicklung, SJZ 1982, S. 157 ff.
Brunner Alexander/Gasser Dominik/Schwander Ivo (Hrsg.), ZPO, Schweizerische Zivilprozessordnung, Kommentar, 2. Auflage, Zürich/St. Gallen 2016 (zit. DIKE Komm.-BearbeiterIn).
Brunner Eugen, Voraussetzungen für den Erlass vorsorglicher Massnahmen im gewerblichen Rechtsschutz, SMI 1989, S. 6 ff.
Bucher Andreas (Hrsg.), Commentaire romand: Loi sur le droit international privé (LDIP) – Convention de Lugano (CL), Basel 2011 (zit. CR-BearbeiterIn).
Chabloz Isabelle/Dietschy-Martenet Patricia/Heinzmann Michel (Hrsg.), Petit commentaire Code de procédure civile, Basel 2020 (zit. PC-BearbeiterIn).
Chiesa Spartaco, Die vorsorglichen Massnahmen im gewerblichen Rechtsschutz gemäss der Tessiner Prozessordnung, SMI 1989, S. 27 ff.
Dasser Felix/Oberhammer Paul (Hrsg.), SHK – Stämpflis Handkommentar zum LugÜ, 3. Auflage, Bern 2021 (zit. SHK-BearbeiterIn).
David Lucas/Frick Markus R./Kunz Oliver M./Studer Matthias U./Zimmerli Daniel, Der Rechtsschutz im Immaterialgüter- und Wettbewerbsrecht: Teilband 2, 3. Auflage, Basel 2011.
Domej Tanja, Die Neufassung der EuGVVO: Quantensprünge im europäischen Zivilprozessrecht, RabelsZ 78 (2014), S. 509 ff.
Droese Lorenz, Unklarheiten um den klaren Fall gemäss Art. 257 ZPO, ZBJV 155/2019, S. 229 ff.
Ernst René, Die vorsorglichen Massnahmen im Wettbewerbs- und Immaterialgüterrecht, Diss., Zürich 1992 = Zürcher Studien zum Verfahrensrecht Nr. 100.
Frenkel Daniela, Informationsbeschaffung zur Glaubhaftmachung der Arrestvoraussetzungen sowie Auskunftspflichten im Arrestvollzug: unter besonderer Berücksichtigung der Arrestrevision 2011, Diss., Zürich 2012 = Zürcher Studien zum Verfahrensrecht Nr. 170.
Furrer Andreas/Girsberger Daniel/Müller-Chen Markus (Hrsg.), CHK – Handkommentar zum schweizerischen Privatrecht: IPRG, 3. Auflage, Zürich 2016 (zit. CHK-BearbeiterIn).
Gasser Dominik/Rickli Brigitte, Schweizerische Zivilprozessordnung: Kurzkommentar, 2. Auflage, Zürich/St. Gallen 2014.
Gehri Myriam A./Jent-Sørensen Ingrid/Sarbach Martin, ZPO Kommentar, 2. Auflage, Zürich 2015 (zit. OFK-BearbeiterIn).
Geimer Reinhold/Schütze Rolf A., Europäisches Zivilverfahrensrecht: Kommentar, 4. Auflage, München 2020.
Gessler Dieter, Vorsorgliche Massnahmen bei strittigen Kaufverträgen, in: Schluep Walter R./Isler Peter R. (Hrsg.), Neues zum Gesellschafts- und Wirtschaftsrecht: Zum 50. Geburtstag von Peter Forstmoser, Zürich 1993, S. 291 ff.
Giacomini Sergio, Merksätze zum zivilprozessualen Massnahmeverfahren, ZZZ 2005, S. 475 ff.
Gloor Alain, Vorsorgliche Massnahmen im Spannungsfeld von Bundesrecht und kantonalem Zivilprozessrecht, Diss., Zürich 1982 = Zürcher Studien zum Verfahrensrecht Nr. 59.
Graner Paul, Die einstweiligen Verfügungen nach bernischem Zivilprozess, Diss., Bern 1932.
Grob Alexander, Vorsorgliche Massnahmen bei Persönlichkeitsverletzungen: unter besonderer Berücksichtigung der materiellen Voraussetzungen (Art. 28c ZGB), Diss., Basel 1989.
Grolimund Pascal/Loacker Leander D./Schnyder Anton K. (Hrsg.), Basler Kommentar zum IPRG, 4. Auflage, Basel 2021 (zit. BSK-BearbeiterIn).
Guldener Max, Schweizerisches Zivilprozessrecht, 3. Auflage, Zürich 1979.
Haas Ulrich/Marghitola Reto (Hrsg.), Fachhandbuch Zivilprozessrecht: Expertenwissen für die Praxis, Zürich 2020 (zit. Fachhandbuch-BearbeiterIn).
Haldy Jacques, Procédure civile suisse, Basel 2014.
Hasenböhler Franz, Die provisorische Verfügung nach basellandschaftlichem Zivilprozessrecht, BJM 1976, S. 1 ff. (zit. Hasenböhler, Verfügung).
Hasenböhler Franz, Summarisches Verfahren, insbesondere Rechtsschutz in klaren Fällen und vorsorgliche Massnahmen, Anwaltsrevue 2014, S. 259 ff. (zit. Hasenböhler, Massnahmen).
Hausheer Heinz/Walter Hans Peter (Hrsg.), Berner Kommentar zur Schweizerischen Zivilprozessordnung, Bern 2012 (zit. BK-BearbeiterIn).
Heizmann Reto/Loacker Leander D. (Hrsg.), UWG, Bundesgesetz gegen den unlauteren Wettbewerb, Kommentar, Zürich/St. Gallen 2018 (zit. DIKE Komm.-BearbeiterIn).
Hilty Reto M./Arpagaus Reto (Hrsg.), Basler Kommentar zum Bundesgesetz gegen den unlauteren Wettbewerb, Basel 2013 (zit. BSK-BearbeiterIn).
Hofstetter Karl A., Der einstweilige Rechtsschutz im Luzerner Zivilprozess, ZBJV 1983, S. 393 ff.
Honegger-Müntener Patrick, Verlegung der Prozesskosten des Massnahmeverfahrens vor Rechtshängigkeit des Hauptsacheverfahrens, ZZZ 2022, S. 185 ff.
Huber-Zimmermann, Die einstweiligen Verfügungen nach solothurnischem Zivilprozessrecht, Diss., Bern 1983.
Huth Max Werner, Die vorsorglichen Verfügungen nach baselstädtischem Zivilprozessrecht, Diss., Basel 1974.
Jung Peter/Spitz Philippe (Hrsg.), Stämpflis Handkommentar zum Bundesgesetz gegen den unlauteren Wettbewerb (UWG), 2. Auflage, Bern 2016 (zit. SHK-BearbeiterIn).
Kofmel Ehrenzeller Sabine, Der Vorläufige Rechtsschutz im internationalen Verhältnis: Grundlagen, Habil., Tübingen 2005 = Veröffentlichungen zum Verfahrensrecht Nr. 39.
Köhler Helmut/Bornkamm Joachim/Feddersen Jörn/Alexander Christian (Hrsg.), Beck’sche KurzKommentare Band 13a: Gesetz gegen den unlauteren Wettbewerb, 40. Auflage, München 2022 (zit. Beck-KUKO-BearbeiterIn).
Kren Kostkiewicz Jolanta (Hrsg.), IPRG/LugÜ Kommentar, 2. Auflage, Zürich 2019 (zit. OFK-BearbeiterIn).
Kren Kostkiewicz Jolanta, Vorsorgliche Massnahmen im schweizerischen IPRG: direkte Zuständigkeit, anwendbares Recht sowie Anerkennung und Vollstreckung, in: Bolle Pierre-Henri (Hrsg.), Mélanges en l’honneur de Henri-Robert Schüpbach, Basel 2000, S. 289 ff.
Kunz Oliver M./Hoffmann-Nowotny Urs H./Stauber Demian (Hrsg.), ZPO-Rechtsmittel Berufung und Beschwerde: Kommentar zu den Art. 308-327a ZPO, Basel 2013 (zit. ZPO-Rechtsmittel-BearbeiterIn).
Leuenberger Christoph, Der Endentscheid nach Art. 236 und Art. 308 ZPO: Wie weit geht die Auslegung in Übereinstimmung mit dem BGG, SZZP 2015, S. 89 ff. (zit. Leuenberger, Endentscheid).
Leuenberger Christoph, Glaubhaftmachen, in: Leuenberger Christoph (Hrsg.), Der Beweis im Zivilprozess, Bern 2000, S. 108 ff. (zit. Leuenberger, Glaubhaftmachen).
Leuenberger Christoph/Uffer-Tobler Beatrice, Schweizerisches Zivilprozessrecht, 2. Auflage, Bern 2016.
Leupold Michael, Die Nachteilsprognose als Voraussetzung des vorsorglichen Rechtsschutzes, sic! 2000, S. 265 ff.
Lutz Martin J., Die vorsorgliche Massnahme, in: Institut für gewerblichen Rechtsschutz (INGRES) in Zürich (Hrsg.), Kernprobleme des Patentrechts: Festschrift zum einhundertjährigen Bestehen eines eidgenössischen Patentgesetzes, Bern 1988, S. 321 ff.
Markus Alexander R./Conrad Zina, Einstweiliger Rechtsschutz – international, in: Grolimund Pascal/Koller Alfred/Loacker Leander D./Portmann Wolfgang (Hrsg.), Festschrift für Anton K. Schnyder zum 65 Geburtstag, Zürich 2018, S. 235 ff.
Meier Isaak, Einstweiliger Rechtsschutz im Aktienrecht, in: Meier Isaak/Riemer Hans Michael/Weimar Peter (Hrsg.), Recht und Rechtsdurchsetzung: Festschrift für Hans Ulrich Walder zum 65. Geburtstag, Zürich 1994, S. 67 ff. (zit. Meier, FS Walder).
Meier Isaak, Grundlagen des einstweiligen Rechtsschutzes im schweizerischen Privatrecht und Zivilverfahrensrecht, Habil., Zürich 1983 (zit. Meier, Rechtsschutz).
Meier Isaak, Schweizerisches Zivilprozessrecht: eine kritische Darstellung aus der Sicht von Praxis und Lehre, Zürich 2010 (zit. Meier, ZPR).
Meier Isaak/Giudici Camilla/Hamburger Carlo/Müller Nicola/Scheiwiller Sarah/Schindler Riccarda, Einstweiliger Rechtsschutz im schweizerischen Recht zwischen Optimierung und Standardisierung, in: Pekcanitez Hakan (Hrsg.), Festschrift für Prof. Dr. Hakan Pekcanitez, Izmir 2015, S. 239 ff.
Meng Franz Joseph, Die vorsorgliche Verfügung nach aargauischer Zivilprozess- und Handelsgerichtsordnung, Diss., Basel 1971.
Müller Jürg, Zur einstweiligen Verfügung im Immaterialgüterrecht, ZBJV 1983, S. 30 ff.
Müller-Chen Markus/Widmer Lüchinger Corinne (Hrsg.), Zürcher Kommentar zum IPRG – Band I: Art. 1-108, 3. Auflage, Zürich 2018 (zit. ZK-BearbeiterIn).
Niggli Marcel Alexander/Uebersax Peter/Wiprächtiger Hans/Kneubühler Lorenz (Hrsg.), Basler Kommentar zum Bundesgerichtsgesetz, 3. Auflage, Basel 2018 (zit. BSK-BearbeiterIn).
Oberhammer Paul/Domej Tanja/Haas Ulrich (Hrsg.), Kurzkommentar ZPO, 3. Auflage, Basel 2021 (zit. KUKO-BearbeiterIn).
Oetiker Christian/Weibel Thomas (Hrsg.), Basler Kommentar zum LugÜ, 2. Auflage, Basel 2016.
Orlando Danilo A., Beweislast und Glaubhaftmachung im vorsorglichen Rechtsschutz: Gedanken zu einem Entscheid des Bundesgerichtes, SJZ 90/1994, S. 89 ff.
Pedrazzini Mario M., Vorsorgliche Massnahmen im Immaterialgüterrecht: Eine Ergänzung, SJZ 1983, S. 160 f.
Phurtag Sejee, Vorsorgliche Massnahmen im internationalen Zivilprozessrecht: unter besonderer Berücksichtigung des schweizerischen und des englischen Rechts, Diss., Bern 2019 = CIVPRO – Institut für Internationales Verfahrensrecht Nr. 3.
Rauscher Thomas/Krüger Wolfgang (Hrsg.) Münchener Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz und Nebengesetzen: Band 2 §§355-945b ZPO, 6. Auflage, München 2020 (zit. MüKo-BearbeiterIn).
Rauscher Thomas/Krüger Wolfgang (Hrsg.) Münchener Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz und Nebengesetzen: Band 3 §§946-1120 ZPO, 6. Auflage, München 2022 (zit. MüKo-BearbeiterIn).
Rüetschi David, Die Verwirkung des Anspruchs auf vorsorglichen Rechtsschutz durch Zeitablauf, sic! 2002, S. 416 ff.
Schai Damian, Vorsorglicher Rechtsschutz im Immaterialgüterrecht: Unter besonderer Berücksichtigung superprovisorischer Anordnungen des aargauischen Handelsgerichts, Diss. Zürich 2009 = Veröffentlichungen zum aargauischen Recht Nr. 52.
Schenker Urs, Die Vorsorgliche Massnahme im Lauterkeits- und Kartellrecht, Diss., Zürich 1985 = Zürcher Studien zum Verfahrensrecht Nr. 60.
Schlosser Ralph, Les conditions d’octroi des mesures provisionnelles en matière de propriété intellectuelle et de concurrence déloyale, sic! 2005, S. 339 ff.
Schweizer Mark, Das Beweismass der Glaubhaftmachung, ZZZ 2014/2015, S. 1 ff. (zit. Schweizer, Glaubhaftmachung).
Schweizer Mark, Verwirkung patentrechtlicher Ansprüche, sic! 2009, S. 325 ff. (zit. Schweizer, Verwirkung).
Seiler Benedikt, Die Berufung nach ZPO, 2. Auflage, Zürich/Basel/Genf 2013.
Spühler Karl/Tenchio Luca/Infanger Dominik (Hrsg.), Basler Kommentar zur Schweizerischen Zivilprozessordnung, 3. Auflage, Basel 2017 (zit. BSK-BearbeiterIn).
Stach Patrick A., Vorsorgliche Massnahmen nach Bundesrecht und St. Gallischem Zivilprozessrecht, Diss., St. Gallen 1991.
Staehelin Daniel/Grolimund Pascal/Bachofner Eva, Zivilprozessrecht: unter Einbezug des Anwaltsrechts und des internationalen Zivilprozessrechts, 3. Auflage, Zürich 2019.
Stamm Walter, Das Institut der vorsorglichen Massnahme im zürcherischen Zivilprozessrecht, Diss., Zürich 1943.
Stauber Demian, Das Verhältnismässigkeitsprinzip bei superprovisorischen Massnahmen und seine Auswirkungen auf die besondere Dringlichkeit, sic! 2010, S. 602 ff.
Steiner Jakob, Die Beschwerde nach der Schweizerischen Zivilprozessordnung, Diss., Basel 2018 = Schriften zum Schweizerischen Zivilprozessrecht Band 31.
Streuli-Youssef Magda, Zur Dringlichkeit bei vorsorglichen Massnahmen, in: Donatsch Andreas/Fingerhuth Thomas/Lieber Viktor/Rehberg Jörg/Walder-Richli Hans Ulrich (Hrsg.), Festschrift 125 Jahre Kassationsgericht des Kantons Zürich, Zürich 2000, S. 301 ff.
Sutter-Somm Thomas, Schweizerisches Zivilprozessrecht, 3. Auflage, Zürich 2017.
Sutter-Somm Thomas/Hasenböhler Franz/Leuenberger Christoph (Hrsg.), Kommentar zur Schweizerischen Zivilprozessordnung (ZPO), 3. Auflage, Zürich 2016 (zit. Schulthess Komm.-BearbeiterIn).
Sutter-Somm Thomas/Seiler Benedikt (Hrsg.), Handkommentar zur Schweizerischen Zivilprozessordnung, Zürich 2021 (zit. CHK-BearbeiterIn).
Vogel Oscar, Probleme des vorsorglichen Rechtsschutzes, SJZ 1980, S. 89 ff.
Vorwerk Volkert/Wolf Christian (Hrsg.), Beck’scher Online Kommentar zur ZPO, 44. Auflage, München 2022 (zit. BeckOK-BearbeiterIn).
Walter Gerhard/Domej Tanja, Internationales Zivilprozessrecht der Schweiz, 5. Auflage, Bern 2012.
Widmer Lüchinger Corinne/Oser David (Hrsg.), Basler Kommentar zum OR I, 7. Auflage, Basel 2020 (zit. BSK-BearbeiterIn).
Willi Christoph, Glaubhaftmachung und Glaubhaftmachungslast, sic! 2011, S. 215 ff.
Ziegler Walter, Die vorsorgliche Massnahme in der Zivilprozessgesetzgebung der schweizerischen Kantone, Diss., Zürich 1944.
Zogg Samuel, «Vorsorgliche» Unterhaltszahlungen im Familienrecht, FamPra.ch 2018, S. 47 ff.
Zürcher Johann Jakob, Der Einzelrichter am Handelsgericht des Kantons Zürich: Einstweiliger und definitiver Rechtsschutz für immaterialgüter- und wettbewerbsrechtliche Ansprüche im summarischen Verfahren, Diss., Zürich 1998 = Zürcher Studien zum Verfahrensrecht Nr. 10.