Dismissal of the Appeal against the Refusal of an Interim Measure

Facts

The case concerns an appeal against the refusal of the Commercial Court to issue an interim measure pursuant to Art. 265 CPC before September 30, 2011. The Federal Supreme Court examines ex officio whether the appeal is admissible.

The Federal Supreme Court generally does not consider appeals against decisions on interim measures, as the exhaustion of cantonal instances within the meaning of Art. 75 para. 1 BGG is lacking. A decision is only final at the cantonal level if no further cantonal legal remedy is available against the complaints raised.

The Swiss Civil Procedure Code does not provide for any legal remedy against first-instance cantonal decisions on interim measures, not even in the case of a rejection of such an order. This solution has received broad approval in the literature.

Furthermore, as a rule, there is a lack of a…