This blog series provides litigators and corporate counsel from other jurisdictions with a practical understanding of the mechanics, advantages, and limits of litigation before State Courts in Switzerland.
Forms of Injunctive Relief
Injunctive relief may be granted in the form of an attachment of assets or an injunction. There are three main types of interim measures:
- safeguarding measures,
- regulatory measures
- and executory measures.
Basically, safeguarding measures aim at preserving the matter in dispute for the time being, namely, until the dispute has been decided by the Court. Regulatory measures are intended to regulate the parties' relationship while the principal proceedings are pending. By ordering executory measures, provisional obligations may be imposed on a party.
Ex parte Injunctive Relief
In cases of great urgency, and when there is a risk that the enforcement of the measure will be frustrated, the Court has the power to order the injunctive measure immediately and without hearing the opposing party (ex parte measures). However, the opposing party may subsequently seek to have the injunctive measure set aside.
It is possible to request interim relief even if the principal action is not yet pending before a Court (art. 263 CPC). However, if the Court grants the requested interim relief, it sets the applicant a time-limit for filing the principal application. If the requesting party fails to meet the deadline, the ordered measure will automatically lapse.
If the principal action is already pending before the Court at the time interim relief is sought, the applicant does not need to initiate separate proceedings but is entitled to request such relief within the proceeding concerning the principal action.
Standards for Obtaining an Injunction
To obtain an injunction, the requesting party needs to show credibly that he or she has a legal position that has been violated or is likely to be violated in the near future, and that such violation would cause not easily repairable harm to the requesting party. In addition, ex parte interim relief is only granted if there is some special urgency that is greater than in cases of ‘ordinary’ injunctive relief and that requires the Court to act immediately and without first hearing the opposing party.
Standard of Proof in Injunction Proceedings
In summary proceedings for obtaining injunctive relief, prima facie evidence is sufficient to establish a party's case. That standard is met if certain indications objectively establish some probability that the requesting party's presentation of facts is correct while still other possibilities might come into consideration.
Preconditions of an Attachment
To obtain an attachment (freezing order), the petitioner must show credibly that the following conditions are met:
- he or she has a monetary unsecured matured claim against the debtor;
- there is a valid reason for attachment, which means that, but for the attachment, there would likely be no more assets to enforce a later (or also prior) Court decision against the debtor (risk of dissipation or the like). The reasons for attachment are enumerated in the Debt and Bankruptcy Act (DEBA). Attachment can be granted, for example, if the debtor has no residence – or domicile – in Switzerland, or if the creditor already has an enforceable title against the debtor; and
- finally, it must be shown credibly that there are assets owned by the debtor at the place where the attachment is sought. This constitutes an essential hurdle in practice.
The petitioner is liable for any loss or damage caused by an unjustified interim measure.