Order of a confidentiality obligation under threat of criminal penalty as a procedural protective measure

Facts

The facts of the case concern a civil proceeding between Bank A. AG (Defendant, Appellant) and B. Ltd. (Plaintiff, Respondent). The Defendant requested the Commercial Court of the Canton of Zurich to prohibit the Plaintiff from disclosing or making certain information from the statement of claim and the annexes accessible to third parties. The Commercial Court dismissed the request.

The Defendant then filed an appeal in civil matters with the Federal Supreme Court. It requested the protective measures rejected by the Commercial Court to be ordered. The Federal Supreme Court partially upheld the appeal.

Considerations

Pursuant to Article 156 of the Swiss Civil Procedure Code (CPC), the court may also order a confidentiality obligation under threat of criminal penalty as a procedural protective measure, provided that this proves to be the mildest means to safeguard interests worthy of protection.

However, such a measure can only be ordered for the duration of the proceedings, not beyond. The court must examine an effective threat to interests worthy of protection, with a merely theoretical risk not being sufficient. The party requesting protective measures must make the threat credible.

With regard to the information contained in the statement of claim, Article 156 CPC may exceptionally also extend to written…