1. Applicable Law
1.1.1 On 1 January 2011 Switzerland faced the dawn of a new era in litigation. Due to its federal state structure, until this date civil procedural law was regulated on a cantonal level with 26 civil procedure codes. Since 1 January 2011, the Swiss Civil Procedure Code (CPC) replaces the cantonal codes.
1.1.2 Interim measures are mainly governed by the CPC. In order to determine whether provisions other than the CPC are (also) applicable to an interim measure, the applicant has to check two issues:
- whether the claim or the interim measure has an international nexus; and
- whether there are special provisions for the particular subject matter of the claim.
1.1.3 For international cases, the provisions of the Federal Code on Private International Law (CPIL) and international treaties, in particular the Lugano Convention,1 supersede the CPC.2 These provisions relate foremost to jurisdiction and enforcement.
1.1.4 Further, certain provisions of the following areas are located in other sources of law:3
- for protective measures regarding monetary claims (e.g. attachment orders), the provisions of the Debt Enforcement and Bankruptcy Law (DEBL) apply;
- for inheritance cases, the CPC is superseded by the protective measures provided for in the Swiss Civil Code; and
- certain rules on interim measures regarding intellectual property are to be found in the corresponding substantive law.
2.1 International and geographical jurisdiction – the venue
2.1.1 Before the substantive claim is commenced, the applicant may file a request for interim measures with any court that has jurisdiction over the substantive case, or with the court at the venue where the interim measure will be enforced. If proceedings are already commenced, the request for interim measures can only be filed in the same jurisdiction as the main proceedings, or with the court at the place of enforcement.
2.1.2 For domestic cases, this rule is laid down in Article 13 CPC. Article 10 CPIL sets out the same rule for international cases. To the extent applicable in international cases, the Lugano Convention prevails. Although not explicitly stated in the Lugano Convention, it is widely accepted that any court having jurisdiction over the underlying claim is also competent to order interim measures. In addition, there is jurisdiction at the place where the interim measure is to be executed.4
2.2 The effect of jurisdiction clauses
2.2.1 For international cases, the Swiss Federal Supreme Court has decided that a jurisdiction clause is valid for interim measures as well. However, the applicant may request interim relief from another court if the stipulated court is unable to order, in due time, an immediately enforceable measure safeguarding the rights of the applicants that are at risk.5
2.2.2 In national cases, besides the court which has been agreed in the jurisdiction clause, the applicant may also file a request for interim measures with the court at the venue where the interim measure will be enforced.6
2.3 Subject-matter jurisdiction
2.3.1 Once the international and geographical jurisdiction is established, the functional and subject-matter jurisdiction must be determined. This is still subject to every canton’s judicial organisation and has not been unified in the CPC.7
2.3.2 As a rule, the cantons provide for a first instance court (often called district court) and an appellate court (usually the cantonal court or the (cantonal) supreme court).
2.3.3 Cantons are free to establish special courts to deal with certain matters. Some cantons have set up commercial courts, labour courts and/or tenant courts. Where a canton has established a commercial court for commercial disputes, such a court is also competent for interim measures, whether ex parte or not, including those filed before the substantive claim is filed.8
2.3.4 In some limited areas of law, the CPC provides that a single cantonal court is exclusively competent.9 This court is also competent for interim measures, whether ex parte or not, including applications filed before the main claim is pending.
2.3.5 The Federal Patent Tribunal is exclusively competent to decide claims concerning the granting, existence and violation of patent rights. In these areas, the Federal Patent Tribunal has also jurisdiction to issue interim measures, whether ex parte or not, including those filed before the substantive claim is filed.10
2.3.6 The subject-matter jurisdiction of the commercial court, the single cantonal court, and the Federal Patent Tribunal as to interim measures is exclusive.11
2.3.7 As a general rule, where the main claim is not yet filed, a single judge will be competent to deal with an application. Where an application is made to the court already dealing with the main claim, in most cantons the president of the court will deal with the interim application.
2.4 Choice of venue if more than one court has jurisdiction
2.4.1 If different courts have jurisdiction for the same interim measure, the applicant may elect where to file the request. The following aspects might be considered when choosing the venue:
- the average duration of proceedings in the respective courts;
- whether a commercial court is competent to decide the interim measure sought; for a request for interim relief dealing with specific technical or commercial issues, it can be helpful to have a judge with the relevant know-how;
- the wish to avoid long discussions about jurisdiction; the fewest problems as to jurisdiction will normally arise with the courts at the seat of the respondent and the place where the measure has to be executed;
- small district courts and courts of more rural cantons are not often used to dealing with international law issues and might not have the resources to allocate a judge to a matter on (very) short notice, although the standards required to obtain an interim measure tend to be stricter in courts that have more experience in these types of matters;
- court costs can vary considerably from one canton to the other, as each canton fixes its own tariffs.12
3. Types of Interim Measures and their Criteria
3.1 Three categories
3.1.1 In Switzerland, interim measures are divided into three categories: preventative measures, regulatory measures and performance measures.
Preventative measures (“Sicherungsmassnahmen”)
3.1.2 A preventative measure is meant to secure a claim by “freezing” an existing factual or legal situation until the case has been decided (i.e. maintaining the status quo). Such measures do not satisfy the applicant’s substantive claim, but safeguard the future enforcement of it. Swiss law distinguishes between interim measures to secure monetary claims and such to secure other claims.
3.1.3 The most prominent preventative measure is the seizure of assets (“Arrest”), by which the debtor is prevented from disposing the attached assets.13 Such order is solely available to ensure the future enforcement of monetary claims.
3.1.4 If the underlying claim is not for the payment of money, then a provisional protective measure pursuant to Articles 261 et seq CPC is available, e.g. a prohibition on encumbrance and alienation, forfeiture and sealing, bailment and other restraining orders.
Regulatory measures (“Regelungsmassnahmen”)
3.1.5 With a regulatory measure, the court orders the parties to a dispute to adhere to a certain modus vivendi in an ongoing legal relationship between them.14 Such provisional framework is usually not limited to one single obligation, but regulates the complete relationship between the parties until the matter of substance has been decided.
3.1.6 Typical situations include proceedings between shareholders or members of an association (e.g. during the dissolution of a corporation), neighbours, landlord and tenant, successors and married couples (in divorce cases). Case law has also dealt with regulatory measures in long term licence agreements and multi-delivery contracts.15
Performance measures (“Leistungsmassnahmen”)
3.1.7 A performance measure orders the respondent to (partially) fulfil an alleged obligation before the dispute has been decided. While performance measures were not widely available under the cantonal regimes, the CPC expressly allows performance measures by naming them in its figurative list of possible measures.16 However, courts are generally more reluctant to grant performance measures.
3.1.8 Performance orders can be divided into two categories:
- negative performance measures, to omit or to allow certain actions, e.g. to cease an alleged infringement of the applicant’s intellectual property rights;
- positive performance measures, to impose an obligation to carry out a certain action, e.g. a contribution in kind. Interim relief ordering the payment of money can only be obtained if the substantive law expressly provides for this.17
The practical impact of this categorization
3.1.9 The transition from one category into the next is sometimes fluid. The distinction is, however, important.
3.1.10 The Swiss Federal Supreme Court has ruled that the requirements for positive performance measures are stricter than for other measures.18
3.1.11 The European Court of Justice (ECJ) restricts jurisdiction and cross-border circulation of performance measures under the Lugano Convention, especially with regard to interim payment orders.19 This is why it is important that the Swiss Federal Supreme Court categorizes English (worldwide) freezing orders as conservatory measures and not as negative performance measures.20
3.2 Interim measures to secure monetary claims
The attachment order
3.2.1 The DEBL governs all cases where a creditor wishes to secure a monetary claim by preventing the debtor from disposing of its assets. The only interim remedy available is the attachment order.
3.2.2 According to Article 271, a creditor may apply for the attachment of its debtor’s assets in case of an unsecured and – except for the first two grounds – due claim if one of the following six grounds is fulfilled:
- the debtor has no fixed domicile;
- the debtor is concealing its assets, absconding or making preparations to abscond in order to evade the fulfilment of its obligations;
- the debtor is in transit or belongs to the category of persons who visit fairs and markets (only applicable to debts that are usually paid immediately);
- the debtor does not have its residence or seat in Switzerland, and the claim has either a sufficient link to Switzerland or is backed by an enforceable judgment or a recognition of debt (such as a promissory letter);
- the creditor holds a certificate of shortfall against the debtor; or
- the claim is confirmed by an enforceable court judgment, a court settlement or a public deed.21
3.2.3 The court at the place where the assets are located will issue an attachment order in an ex parte procedure if the creditor is able to present prima facie evidence that: (i) it has a claim; (ii) one of the abovementioned grounds for attachment exists; and (iii) there are available assets belonging to the debtor.22
3.2.4 When granting an attachment order, the judge will entrust an enforcement officer with its execution. Once the assets are seized, the debtor and third parties whose rights are affected by the order will be served with a copy of the attachment order. These persons may file an objection with the judge who issued the order within ten days after notice of the order.23
3.2.5 If the creditor had not instituted enforcement proceedings or brought a court action before applying for the attachment order, it must do so within ten days after service of the attachment order. Otherwise, the seizure of assets will be lifted.
The interim payment order
3.2.6 An interim order to pay may only be issued if provided for in the law. Such legal provisions for interim payments exist only in family law and in the Nuclear Liability Act. In all other cases, no interim payment order can be obtained in Switzerland. However, foreign interim payment orders are enforceable in Switzerland under the Lugano Convention.24
3.3 Interim measures for non-monetary claims
3.3.1 Except for the securing of monetary claims,25 the court may order any provisional measure suitable to prevent imminent harm.26 The court has a wide discretion when it comes to the content of an interim measure.
3.3.2 Article 262 CPC contains a figurative list of possible measures, naming among others:
- Prohibition, e.g. (i) on altering or disposing of the matter in dispute, (ii) on performing a competing activity, (iii) on selling a product, (iv) on publishing an article or book, (v) on executing a board resolution and/or filing it with the corporate registry, (vi) on paying out a bank guarantee, (vii) on making certain statements;
- An order to remedy an unlawful situation, e.g. (i) seizure of the subject matter of the dispute or (ii) confiscation of counterfeit goods;
- An order to an authority, e.g. (i) to the commercial registry to implement a register ban (provisional interdiction of certain register entries), (ii) to the land registry to inscribe a restraint of disposal, (iii) to the land registry to inscribe a certain right in rem, such as the statutory mortgage of contractors;
- An order to a third party, e.g. (i) to block a bank account, (ii) to hand over shares, (iii) to prohibit the debtor from paying before the court has decided on who is entitled to the claim;
- Performance in kind, e.g. (i) the restitution of items taken away or kept back, (ii) to continue or resume the delivery of goods.
The criteria for interim orders
3.3.3 The applicant seeking an interim measure has to credibly demonstrate to the court that:27
- the applicant is entitled in the underlying substantive right or claim;
- the respondent violates such right or claim, or threatens to violate it;
- such violation is likely to cause the applicant a prejudice which is not or not easily repairable;
- there is urgency; and
- the requested measure complies with the principle of proportionality.
The existence of a substantive claim
3.3.4 The first condition for an interim measure is that the applicant credibly demonstrates an underlying substantive right or claim (e.g. a claim for performance, or a right to alter a legal relationship). The interim measure must aim at safeguarding this underlying right.
The threat to the substantive claim
3.3.5 The underlying right or claim must be threatened by a possible harm caused by a positive or negative action of the respondent. Where the respondent has already violated the applicant’s right in the past, there is an assumption that it will do so again in the future. The harm must be likely to occur from an objective point of view.
The harm not easily repairable
3.3.6 The applicant must credibly demonstrate that it would face an injustice or not easily repairable harm if the interim measure is not ordered. Examples are:
- loss of reputation;
- loss of clientele;
- financial damage that is not easily repairable (e.g. that the opposing party is unlikely to be able to pay for the damage caused by its behaviour);
- imminent harm that would later be difficult to judge, to quantify or to prove (e.g. the harm caused by counterfeit products); or
- enforcement becoming more complex if executed later.
3.3.7 There must be a need for urgent action in order to avoid the imminent and not easily repairable harm. An interim measure might be denied if the sole reason for urgency is that the applicant delayed the filing of the request without any valid reason for doing so. Conversely, an applicant cannot be blamed if: (i) it first tried to find an amicable solution; (ii) it initially set the opposing party a deadline and waited until it lapsed; or (iii) clarification of the factual or legal situation was necessary and time-consuming.
Principle of proportionality
3.3.8 The court has to observe the principle of proportionality when deciding which measure to order and how to ensure that the applicant’s right at risk can be secured. The court must not interfere with the respondent’s rights any more than necessary.
3.3.9 In addition, the court has to weigh the potential harm to the applicant if the measure is not ordered against the potential harm that would be suffered by the respondent if it is. The more harmful a measure is to the respondent, the higher are the standards set by the Supreme Court when assessing whether the applicant has credibly demonstrated the underlying substantive right or claim.28
3.4 Preventive taking of evidence
3.4.1 In Switzerland – as in most civil law jurisdictions – taking of evidence is administered by the court and done at a prescribed moment during the litigation process. To ease the drawbacks of this rigid system, the preliminary or preventive taking of evidence by the court is allowed at any time, including prior to the start of the main proceedings, if
- the law so provides;
- the applicant can credibly show that the evidence is at risk; or
- there is another interest requiring protection.29
3.4.2 Legal provisions allowing the preventive taking of evidence can mainly be found in intellectual property laws regarding trademarks, patents, designs and copyrights. Further, the Swiss Code of Obligations (CO) allows the preventive taking of evidence in certain situations, among others if a buyer or commission agent receives imperfect but perishable goods, or if a carrier cannot deliver perishable goods.30
3.4.3 Evidence is at risk when it may cease to exist or may alter before the ordinary evidentiary proceedings. Examples of evidence at risk are a fatally ill witness or a building likely to collapse.
3.4.4 Further, preventive taking of evidence is permitted if the applicant can credibly show that it has an interest worthy of protection. The threshold of such interest should be relatively low and every practical benefit should suffice. Possible examples are: (i) the wish of a party to clarify the facts in order to perform a trial risk analysis,31 (ii) a situation where maintaining the status quo until the ordinary taking of evidence is intolerable; or (iii) where the taking of evidence is more difficult at a later stage.
3.4.5 The procedure regarding the preventive taking of evidence is the same as for other interim measures. The applicant needs not to prove, but to credibly demonstrate the ground it bases its request on. The request can be filed at the venue that has jurisdiction as to the substantive claim or, alternatively, where the preventive taking of evidence has to be executed. In case of imminent harm, it can be ordered ex parte.
3.5 Ex parte measures
3.5.1 Attachment orders to secure monetary claims are always issued as ex parte measures.32 In general, other interim measures are ordered after the respondent has been granted the right to be heard. Article 265 CPC allows the court to issue an ex parte measure in circumstances of imminent danger. The applicant has to credibly demonstrate that there is urgency or that granting the respondent the right to be heard would render the measure useless. The court might require the applicant to post a security before ordering the measure.
3.5.2 Promptly after ordering an ex parte measure, the court will either summon the parties to a hearing or set the respondent a short period in which to file a written statement of defence regarding the ordered measure. Afterwards, the court will either lift the measure or confirm it as an ordinary interim measure.33
3.5.3 There is no appeal against an ex parte injunction; only the (subsequent) ordinary interim measure can be appealed.34
3.5.4 According to the Swiss Federal Supreme Court, in general a negative decision on the request for an ex parteinterim measure cannot be challenged.35 However, the appellate court and the Supreme Court reserve the right to hear cases in which the asserted right of the applicant would otherwise be forfeited until the lower court has heard the parties and rendered its decision whether or not to grant an (ordinary) interim measure.36 Further to this, in our opinion, an appeal should be possible in cases in which the applicant argues that not granting an ex parte measure will frustrate the success of the requested measure. In such cases, the respondent should not be notified of the appeal before the appellate court has issued its decision and – if reversing the decision of the first instance – before the ex parte measure has been implemented.
3.6 Protective letter
3.6.1 The protective letter contains anticipated objections to an expected application for an ex parte interim measure. With such letter, the court is forced to take into account the view of the respondent before deciding on a requested ex parte measure.
3.6.2 Before 2011, the acceptance of protective letters was subject to highly inconsistent court practice. Article 270 CPC now generally introduces this instrument into Swiss civil litigation. Any party who has reason to believe that an ex parte measure will be sought against it may set out its position in advance by filing a protective letter with the court. The protective letter must not be served on the applicant before it has initiated proceedings. Six months after its filing, the protective letter becomes ineffective (i.e. the court will no longer take it into account if an ex parte measure is sought).
3.6.3 For the time being, there is no centralised database for protective letters. If there are several courts from which an ex parte interim measure might be requested, the protective letter needs to be filed with every one of these courts.
3.6.4 Protective letters are particularly important in intellectual property and unfair competition cases. Protective letters can be filed in any proceedings where court orders are usually issued without previously hearing the respondent (e.g. if a party expects that a potential applicant will seek an attachment order pursuant to DEBL).
4. Procedural and Evidential Requirements for Interim Measures
4.1 Procedural requirements
Form of the request
4.1.1 Interim measures are subject to the rules applicable to summary proceedings. In most cases, the interim application is filed in writing.37 The CPC allows electronic writs incorporating an authorised electronic signature.38 For the time being, the option to file an electronic writ is rarely used as the technical procedure is often rather burdensome. In simple or urgent matters, the request can be submitted orally.39
Content of the request
4.1.2 The request has to include a comprehensive prayer for interim relief and name the grounds on which the request is founded.40 The principle of party autonomy prevents the court from awarding more than the applicant requested. However, following the principles of a maiore ad minus and proportionality, the court can and should order a lesser measure if the applicant’s right at risk can be secured by such measure.
Enclosures of the request
4.1.3 The applicant must attach all supportive evidence to its request.41 The applicant might be prevented from later filing evidence that it could have attached to the request, as it is in the discretion of the court to decide upon the conduct of the case after it has received the interim application (e.g. to summon the parties to a hearing or to set the respondent a short time in which to file a written answer).
4.2 Implementation of the procedure
4.2.1 All summary proceedings adhere to the principle of acceleration. After the request is received, and unless an ex parte measure is sought, the court will either summon the parties to a hearing or set the respondent a short deadline in which to submit a written statement of defence.42 If summoned to a hearing, the parties (or their representatives) have to appear physically before the judge. Alternative hearing methods such as telephone or video conferencing are not used in Switzerland.
4.2.2 In circumstances where the court opts for a written procedure it remains open to the court to order a second round of written submissions. After the hearing or the exchange of briefs, the court will decide on the request. Where the court orders an interim measure, it will also issue the necessary directions to enforce the measure.43
4.2.3 In the event that a request is obviously unfounded or inadmissible, the court will dismiss it without further procedure. If the respondent does not submit its statement of defence within the allocated time or does not appear at the hearing, the proceedings will continue without the respondent’s statement of defence or presence.44
4.3 Evidential requirements
Limitation of evidence
4.3.1 In principle, only documentary evidence is permitted in summary proceedings.45 The notion of documentary evidence is interpreted in a broad way, including every document suitable to prove relevant facts, such as papers, drawings, plans, photos, films, audio recordings, electronic files and e-mail print-outs.46
4.3.2 Other evidence is only admissible if it does not substantially delay the proceedings, if the purpose of the proceedings requires such evidence, or if the court is obliged by law to establish the facts of the case ex officio.47
Standard of proof – credibility
4.3.3 The applicant does not have to fully prove the points set out in paragraph 3.3.3 above; the requirement is only to credibly demonstrate them. The Swiss Federal Supreme Court alone uses half a dozen different definitions of the notion of credibility. In summary, making a claim credible requires more than a simple allegation, but less than strict proof. The facts must be supported by some documentary evidence. The substantiation of the facts must be of such quality that, following a prima facie assessment, the judge comes to the conclusion that the applicant’s presentation is likely to be true, without all doubts being ruled out. Some authors refer to credibility as “the proof of likeliness” or “prima facieevidence”.
4.3.4 The courts have substantial discretion when assessing whether or not the standard of credibility is met. As mentioned above,48 the court also has to weigh the potential harm to the applicant if the measure is not ordered against the potential harm that would be suffered by the respondent if it is. The more harmful a measure is for the respondent, the higher are the standards set by the Supreme Court when assessing whether the applicant credibly demonstrates the underlying substantive right or claim.
4.3.5 Some commentators and case law point to the fact that for performance measures, a stricter regime applies. While there is no different standard of proof, as a request for a performance measure is often particularly burdensome for the respondent and also anticipating the substantive claim, a judge usually wants to have more comfort before ordering such measure.
4.3.6 In many cases, it will simply come down to the judge’s instinct when considering whether a case has been made credible. This shows the importance of a convincing request and compelling evidence. It is therefore not surprising that, in many cases, the length of an interim measure request is not that much different from a fully-fledged statement of claim.
5. Legal Safeguards for the Respondent
5.1 Right to present counter-arguments and evidence
5.1.1 The respondent may present counter-arguments and evidence either in a hearing or in a written statement of defence. In principle, the same restrictions as to the applicant’s evidence apply.49 While the applicant has to make credible the facts of its case, the respondent needs only to bring forward substantiated allegations suitable to overthrow the credibility of the facts alleged by the applicant.
5.2 Principle of proportionality
5.2.1 The court is required to apply the principle of proportionality.50
5.3.1 Upon request of the respondent, the court may make the provisional measure conditional upon the provision of security by the applicant.51 In its request, the respondent has to credibly demonstrate that it is likely to suffer damage from the ordered measure, and it has to substantiate the amount of such damage. The court has discretion whether to order security; it will regularly refrain from doing so when there is no doubt about the existence of the underlying substantive claim (i.e. the applicant has not only made credible but proven the facts).
5.3.2 Where an ex parte measure is requested, the court may order security ex officio.
5.3.3 A performance measure will be enforced under the Lugano Convention only if security is in place. Hence, an applicant intending to enforce a performance measure abroad should make sure that the court orders security.52
5.4 Damages for unjustified interim measures
5.4.1 The respondent’s interests are also safeguarded by its right to seek compensatory damages in case of an unjustified interim measure.53 The respondent (or a third party) suffering such damage may file its claim as a counter claim in the underlying main proceedings or in a separate ordinary claim, either at its own (Swiss) domicile or seat, or with the court at the place where the measure was ordered.54
5.4.2 Even where the requirements for a compensatory damages claim are met, if the applicant is able to prove that it had sought the measures in good faith, the court may reduce the damages or entirely release the applicant from liability.55 According to the Swiss Federal Supreme Court, the application was made in good faith if it was – at the time – justifiable for objective, factual reasons, even if subsequently the application is proven to be wrong.56 The threshold is not very high. However, the applicant cannot claim it acted in good faith if it withheld evidence that would have been unfavourable to its position.
5.4.3 A damage claim for unjustified interim measures must be brought within one year from the date on which the claimant becomes aware of the damage and, in any event, within ten years from the date on which the measure was ordered.57
6. Timing of Interim Measures
6.1 Similarities and differences when filing a request before or after the case on the substantive matter is pending
6.1.1 The prerequisites for interim measures are the same whether or not the main case is already pending. Any request will be dealt with in summary proceedings. However, before the substantive claim is pending, the applicant has a greater choice of jurisdictions.58
6.2 Duration of an interim measure procedure
6.2.1 As a rule, requests for interim measures are decided quickly. This is particularly true in case of a request for anex parte injunction. If the urgency is obvious, the court will issue its order within one or two working days, sometimes even within hours.59 If time is of the essence, the applicant is well advised to informally get in touch with the court before submitting the request. This allows the court to prepare for the filing, for example by assigning a judge to the case.
6.2.2 There are cases where the issuance (or denial) of an interim measure takes considerably longer. Usually, the reason is that the court is not convinced that the matter is urgent and/or feels that the applicant could have filed its request much earlier but failed to do so without apparent reason. In addition, varying standards of case management and sophistication of the local courts can result in differences as to the length of time taken for the court to issue an order. In the event of undue delay, Article 319(c) CPC allows a complaint to be filed with the superior court.
6.3 Validity of an interim order
6.3.1 Where an interim measure is issued before the main proceedings are pending, the court will set a deadline by which the applicant must file the main claim. Failing to do so will result in the automatic ineffectiveness of the ordered interim measure.60 The length of the deadline is fixed by the court, taking into consideration the circumstances of the case, and is usually between ten days and two months. A request to extend the deadline is possible.
7.1 Court costs and compensation for professional representation
7.1.1 Article 95(1) CPC sets out court costs and party compensation. An applicant should also take into account the actual costs of its own representation and that it might have to pay court costs in advance.
7.1.2 Court costs include the court fee and, where applicable, the costs of taking evidence and/or translations.61 The court costs are calculated based on a tariff. As these tariffs are subject to cantonal law, they vary from one canton to the next. In most cases, the cost calculation will be determined according to a respective scale based on the amount in dispute. However, courts usually have substantial discretion to take into account the complexity of and time necessary for the proceedings. By way of example, in an interim application with an estimated amount in dispute of CHF 1 Mio, a Zurich court may fix the court costs from as low as CHF 15,375 to as high as CHF 46,125. This spread makes it difficult to give an accurate cost estimate in advance.
7.1.3 Party compensation includes compensation for professional representation and reimbursement of necessary expenses. The compensation for professional representation is set down in a separate tariff, also issued by the cantons. The tariffs are usually based on the amount in dispute and give the courts wide discretion. In most cases, the compensation covers only a relatively small fraction of the successful party’s actual legal fees. By way of example, with an estimated amount in dispute of CHF 1 Mio, a Zurich court will award a party compensation between CHF 4,187 and CHF 27,911.62 If a party is not represented by a lawyer, compensation for personal efforts is allowed if justifiable.63
7.2 Advance on costs and security for party compensation
7.2.1 The court may demand from the plaintiff an advance up to the amount of the expected court costs.64 Although this is a discretionary provision, in practice all courts ask for an advance on costs. A court may refuse to order an interim measure before the advance on costs has been paid.65 In case of an urgent (ex parte) measure, the applicant should verify the relevant court’s practice and, to the extent necessary, pay the advance on costs when filing the request.
7.2.2 Except for the amount exceeding the actual court costs (if any), the court will not reimburse the advance on costs. Rather, the successful applicant has to seek reimbursement of the court costs from the respondent.66 If the respondent fails to pay, the applicant will have to initiate debt enforcement proceedings.
7.2.3 In contrast to ordinary proceedings, the applicant seeking interim relief is never required to provide security for party compensation.67
7.3 Decision on costs and cost shifting
7.3.1 The court may decide on costs when deciding on the interim application. Alternatively, the court may defer its decision on costs to the final decision on the merits.68 While the court costs are determined and allocated ex officio, party compensation entails a respective request by the party.69
7.3.2 The principle of cost shifting applies for both court costs and party compensation. Accordingly, where a request for interim relief is fully admitted, the respondent must bear all costs. If a request is partially admitted, the costs are allocated proportionally.70 By way of example, if an applicant succeeds in 80% of its request, it will be ordered to pay 20% of the courts costs, and its party compensation will be reduced to 60%.71
8. Remedies Against the Decision on Interim Measures
8.1 Modification and revocation
8.1.1 Pursuant to Article 268 CPC, the interim measure may be modified or revoked if the circumstances have changed or if the measure has later proven unjustified. Examples of changed circumstances are: (i) urgency which has fallen away; (ii) a much greater harm that is feared; or (iii) the subject/substantive matter has ceased to exist (e.g. an intellectual property right has expired).
8.1.2 In general, the request to modify or revoke the interim measure must be filed with the court which ordered the interim measure. However, if the underlying main claim is subsequently commenced in a different court, any application for modification or revocation of the interim measure should be brought before that court.
8.1.3 The courts have not yet finally determined whether the alleged change of circumstances must have occurred after the day on which the interim relief was granted. While the Supreme Court briefly noted in one decision that the change must have occurred after the rendering of the first order,72 the same Court indicated in a recent decision that an order might also be modified if (i) the facts on which the judge relied in its first decision prove later to be wrong or if (ii) the first order turns out to be unjustified as the court did not properly know all facts when rendering such order.73
8.2 Appellate remedies
Outline of the Swiss appellate system
8.2.1 In Switzerland, the stages of appeal are divided into two layers: while the CPC regulates the cantonal courts, the Swiss Federal Supreme Court Act sets the rules for appeals to the Swiss Federal Supreme Court once the cantonal instances have been exhausted.
8.2.2 The CPC provides for two main remedies against a decision: the (cantonal) appeal and the (cantonal) complaint. The main instrument is the appeal; the complaint has the function of a subsidiary remedy where an appeal is not permitted. Where a court is acting as the single cantonal instance, there is no remedy to another cantonal court.74
8.2.3 A complaint with the Swiss Federal Supreme Court can be filed against the decision of the cantonal second or single instance court.
8.2.4 An appeal can be brought against the decision of the first instance court on the interim application if the amount at stake is at least CHF 10,000. The appellate court is vested with full power to review the case, i.e. the appellant can challenge both the application of the law and the establishment of the facts.75
8.2.5 The appeal must be filed in writing directly with the appellate court, and set out the basis of the appeal. The period in which to file an appeal is only ten (10) days following notification of the reasoned decision.76 The appeal does not automatically result in the suspension of the enforcement of the interim measure. However, on request and exceptionally, the court may suspend the enforcement of an interim measure if such enforcement would cause harm not easily repairable to the respondent.77
8.2.6 If the appeal is not obviously inadmissible or unfounded, it will then be notified to the opposite party which has ten days to file its answer.78 If necessary, the appellate court may order a hearing or a second exchange of briefs.79 Cantonal complaint
8.2.7 A compliant can be filed against the first instance decision if the amount at stake is below CHF 10,000.80Irrespective of the amount at stake, the complaint is the only remedy available against decisions issued in connection with a request for an attachment order.81
8.2.8 In the complaint procedure (unlike in the appeal procedure), the second instance court does not have full power to review the case. While there are no limits to challenge the application of the law, the complainant can challenge only an obviously wrong (i.e. arbitrary) establishment of the facts.82
Federal appellate remedies
8.2.9 A party may file an appeal (if the amount at stake is at least CHF 30,000) or a complaint (if it is below) with the Swiss Federal Supreme Court against the decision of the cantonal second instance court on the appeal or the complaint.83 Such appeal to the Federal Supreme Court can be brought directly against the decision of a single cantonal instance court.84
8.2.10 However, when a decision on interim relief is issued in the course of ordinary proceedings or if the judge sets a deadline by which the applicant must file the main claim,85 such order qualifies as an interim decision which may be brought to the Federal Supreme Court only if the applicant suffers a prejudice which is not repairable by the subsequent final award in the ordinary proceedings. Contrary to the requirements for the ordering of an interim measure, a harm which is not easily repairable does not suffice for an appeal or complaint to the Supreme Court against an interim decision.86
8.2.11 The only valid ground for an appeal/complaint against a decision on interim relief is the violation of constitutional rights.87 A reasoned appeal/complaint has to be filed in writing within 30 days after receipt of the judgment (including reasoning) of the lower court. The complaint does not have suspensive effect unless so requested and granted by the Supreme Court.88
9. Enforcement of an Interim Measure
9.1 Enforcement of interim measures issued by national courts
9.1.1 There is no separate enforcement procedure as the court ordering the interim measure also has the power to order the necessary enforcement measures.89 However, it is up to the applicant to seek for the relevant enforcement measures.
9.1.2 Except for monetary claims, for which the DEBL applies, Articles 343 and 344 CPC exhaustively list the possible means of enforcement:
- The threat of punishment according to Article 292 of the Swiss Criminal Code: A person failing to comply with a court order is liable to a fine if such order was issued under the threat of criminal penalty in case of non-compliance. In case of a legal entity, the threat will be addressed towards its officers and directors.
- The administrative fine: In its order, the court can threaten the respondent with an administrative fine of up to CHF 5,000 in total or up to CHF 1,000 for each day of future non-compliance with the order. If the court fines the respondent, the money is owed to the state and not to the applicant.
- The coercive measure: the court can order the execution of the interim measure, such as taking away a movable good, vacating real property or the seizure of counterfeit products. The order will be executed by the responsible local authority, usually a bailiff or the police.
- The ordering of the performance by a third party: where the respondent does not carry out an action as ordered, to the extent possible, the court can order the execution by substitution (i.e. authorise the applicant or another person to perform this action). In general, the applicant must pay the costs of the substitution in advance, but can recover the extra cost from the respondent.
- The replacement of a party’s declaration by the order of the court: where the respondent does not make a declaration (e.g. needed for the entry into a public registry), an order of the court can replace such declaration. Further, the court is able to give instructions to the registrar of public registries.
9.2 Enforcement of interim measures issued by foreign courts
9.2.1 If an order for an interim measure was issued in a contracting state of the Lugano Convention, enforcement follows this treaty. For all other cases, enforcement follows the rules of the CPIL.
Enforcement under the Lugano Convention
9.2.2 An order for an interim measure issued in a member state of the Lugano Convention will be recognised and enforced in Switzerland under the rules of the Convention. In general, enforcement is swift and possible without major problems.
9.2.3 However, further to the rules of the Convention applicable to the enforcement of any foreign decision, two important issues can come into play if dealing with a request for the enforcement of a foreign interim order.
9.2.4 First, while the right to be heard does not require that the foreign order for an interim measure is issued after a contradictory procedure, the respondent must have had the opportunity to express its view on the interim measure in the country of origin before enforcement in Switzerland is sought.90 This case law frustrates the enforcement of foreign ex parte interim relief orders in Switzerland. For example, a surprise cross-border raid is not possible. If the place of enforcement is Switzerland and the applicant wants to take the respondent by surprise, it will have to file a request for ex parte measures in Switzerland.
9.2.5 Secondly, an interim payment order issued by a court without jurisdiction over the substantive case only qualifies as an interim measure enforceable under the Lugano Convention, if: (i) repayment to the respondent of the sum awarded in the interim payment order is guaranteed in the event that the applicant is unsuccessful with its main claim; and (ii) the measure relates to specific assets of the respondent located, or to be located, within the territory of the court issuing the interim order.91 As to the enforceability of English worldwide freezing injunctions in Switzerland, the Swiss Federal Court qualifies such interim orders as preventative measures, and not as interim performance measures subject to the above-mentioned criteria.92
Enforcement under the CPIL
9.2.6 The recognition and enforcement of the decisions of courts from countries which are not members of the Lugano Convention is governed by Articles 25 et seq CPIL. Doctrine and cantonal case law are split as to whether these provisions allow the enforcement of foreign interim orders. Although the Swiss Federal Supreme Court has never decided the matter, it has made an observation from which one might conclude that enforcement of foreign interim orders is not possible.93
9.2.7 Accordingly, it is advisable to consider other options. One option is to directly file the request for interim relief in Switzerland pursuant to Article 10 CPIL.94 Another option is to obtain an interim order in a Lugano-Convention state which is then subject to enforcement according to the provisions of the Lugano Convention.
10. Interim Measures in International Commercial Arbitration
10.1 Interim measures by state courts
10.1.1 Prior to the constitution of the arbitral tribunal, an application for interim measures may be filed with the state court. There is no unanimous doctrine as to whether the competent state court has (alternative) jurisdiction after the constitution of the arbitral tribunal. We support the prevailing opinion that there is alternative jurisdiction of the state courts and the arbitral tribunal for interim measures, unless the parties have explicitly agreed to the contrary.
10.2 Interim measures by arbitral tribunal with seat in Switzerland
10.2.1 Provided the parties have not agreed to the contrary, the arbitral tribunal has the power to grant interim relief. While the arbitral tribunal is not bound to Swiss law, it must treat the parties equally and observe the parties’ right to be heard. An arbitral tribunal may issue ex parte measures if, thereafter, the opposing party has the opportunity to state its case. However, the arbitral tribunal cannot enforce its order or impose sanctions if a party does not voluntarily comply with the tribunal’s order. In such situation, the arbitral tribunal may request the assistance of the state court at the place where the interim measure is to be enforced. The state court will apply its own law.95
10.3 Interim measures by arbitral tribunal with seat abroad
10.3.1 While the 1958 New York Convention governs the recognition and enforcement of any foreign arbitral award in Switzerland,96 interim orders are not final and, for this reason, do not qualify as awards enforceable under the said convention. However, arguably, foreign arbitral tribunals may also seek the assistance of the state court at the place of enforcement if a party does not voluntarily comply with an interim award.97