Facts

Parties and proceedings: [A. AG] (plaintiff, applicant, appellant) is a personnel consultant and placement agency. [B.] Sàrl (defendant, respondent, respondent on appeal) is alleged to have entered into a project agreement with [A. AG] in November 2020, in connection with which a non-competition obligation was agreed. [A. AG] 's client is [C. AG] .

Non-competition obligation: [B.] Sàrl was not permitted to establish a direct business relationship with [C. AG] for 12 months after the end of the project agreement. The project agreement was terminated on 8 April 2021, so the prohibition runs until 9 April 2022. [B.] Sàrl nevertheless allegedly entered into a contract with [C. AG] in spring 2021.

Action and application for interim measures: On 17 June 2021 [A. AG] filed an action with the Commercial Court of the Canton of Zurich. Its prayers for relief were: (1) payment of CHF 100'000.-- as a contractual penalty; (2) a prohibition, under threat of penalties under Art. 292 SCC, against establishing and/or maintaining a business or contractual relationship with [C. AG] from 9 April 2021 to 9 April 2022. At the same time it applied for provisional measures, the content of which corresponds to prayer for relief no. 2, to remain in force until the end of the proceedings and at the latest until 9 April 2022, with a fine of CHF 1'000 per day of non-compliance imposed on the company's organs.

Course of proceedings before the lower court: By order of 21 June 2021 the Commercial Court set [B.] Sàrl a single deadline of 20 days to respond to the application for measures. [B.] Sàrl's request for an extension of 16 July 2021 was dismissed. No response to the application was filed. By decision of 4 August 2021 the Commercial Court dismissed the application for provisional measures (HG210133-O).

Requests before the Federal Supreme Court: [A. AG] requested that the decision be set aside and that the requested measures be ordered by the Federal Supreme Court, or alternatively that the matter be remitted for supplementation of the facts and a new decision. The Commercial Court waived a response. [B.] Sàrl requested dismissal and, in its reasoning, also non-entry into the appeal.

Central question: Whether the dismissal of the application for measures infringes federal law by violating the prohibition of arbitrariness (Art. 9 Cst.) and the right to equal and fair treatment (Art. 29 para. 1 Cst.), in particular whether the Commercial Court's balancing of interests and proportionality review were admissible.

Considerations

Admissibility (Art. 90, 93, 74, 75 FSCA): An appeal in civil matters is in principle available against the decision of the Commercial Court as the sole cantonal instance (Art. 74 para. 2 let. b FSCA, regardless of the amount in dispute). Decisions on provisional measures count as final decisions within the meaning of Art. 90 FSCA only if they are issued in independent proceedings. Measures ordered before or during main proceedings that apply only for the duration of those proceedings are interlocutory decisions under Art. 93 FSCA; this also applies where the measure is refused. Reliance on irreparable harm (Art. 93 para. 1 let. a FSCA) was not sufficiently distinguished from the disadvantage under Art. 261 para. 1 let. b CPC; mere passage of time does not constitute a legal disadvantage.

Lack of practical interest and question left open: The application for measures corresponds to prayer for relief no. 2. As a judgment on the merits is not to be expected before the non-competition obligation expires on 9 April 2022, the dispute over actual enforcement ends with the decision on the measure, since no practical interest remains thereafter. The Federal Supreme Court leaves open whether the decision is therefore subject to appeal, since the appeal must in any event be dismissed.

Limited scope of review: Against decisions on provisional measures, only the violation of constitutional rights may be complained of (Art. 98 FSCA). Arbitrariness exists only where the decision is manifestly untenable, clearly contradicts the situation, grossly violates a norm or offends a sense of justice; it must also be arbitrary in its result. The burden of argument lies with the appellant.

Requirements for provisional measures (Art. 261 para. 1 CPC): Required is the prima facie showing of a violation or imminent violation of a claim (let. a) and of a disadvantage that cannot easily be remedied (let. b). In a first step the Commercial Court affirmed these requirements (violation of the non-competition obligation, imminent damage to reputation, urgency), but denied proportionality. The respondent, in turn, challenged the affirmation of the requirements and the absence of a further deadline, but this was the subject of the proceedings only insofar as it concerned the lower court.

Inconsistency of the reasoning: According to recent Federal Supreme Court case law (BGE 139 III 86), under Art. 261 para. 1 CPC no balancing of…