Non-entry on appeal against provisional measures concerning an association meeting for lack of irreparable harm

Facts

Parties and instances: The appellant ([A.] ) and the association [B.] (respondent, represented by attorney Anita Hüsler) dispute provisional measures in connection with an association meeting. The prior instances were the Cantonal Court of Nidwalden and the Higher Court of the Canton of Nidwalden, Civil Division (judgment of 24 June 2021, ZA 21 3).

Main proceedings and background: By decision of 2 November 2020, the Cantonal Court ordered the association to convene, within one month from the decision becoming final, a general meeting with specified agenda items; no appeal was lodged against this. On 17 December 2020, the association held its 'ordinary GV 2020' as an online poll due to Covid.

Requests: On 21 January 2021, the appellant requested before the Cantonal Court, in the main proceedings, that the resolutions adopted in the online poll be declared void or, alternatively, annulled, and, subsidiarily, that it be established that no resolutions in the legal sense had been adopted. In the interim measures proceedings, he requested based on Art. 261 f. CPC an ex parte prohibition on enforcing or implementing the resolutions and their suspension, without hearing the association.

Course of proceedings: The Cantonal Court rejected the ex parte request on 25 January 2021 but granted the association the right to be heard; by decision of 5 February 2021 it confirmed the ex parte order and dismissed the application. It imposed court costs of CHF 400.-- and a party compensation of CHF 556.90 on the appellant. The Higher Court dismissed the appeal of 1 March 2021 by judgment of 24 June 2021, insofar as it was admissible, and imposed costs of CHF 1'000.-- and party compensation of CHF 1'695.80 on the appellant.

Federal Supreme Court proceedings: The appellant lodged an appeal in civil matters on 20 August 2021. The request for suspensive effect or provisional measures was dismissed by order of 24 August 2021. The II. Civil Law Division took over the proceedings on 31 August 2021. No responses were requested.

Considerations

Representation and power of attorney (consid. 1): The appellant objected to the c/o address of the association at the (alleged) president [C.] and to the power of attorney of the legal representative. The Federal Supreme Court held that the question of the valid election of the president belongs to the main proceedings. The association must be able to defend itself through those bodies that prima facie appear authorized to act, which includes appointing legal representation. While the articles of association (Art. 5.2.2 and 5.2.3) indicate that the board regulates signing authority, sole signing authority of the president is not excluded, and the appellant did not prove its absence. The power of attorney is therefore sufficient for the federal proceedings.

Interlocutory decision (consid. 2.1): Provisional measures are only considered final decisions within the meaning of Art. 90 FSCA if they are issued in independent proceedings. Measures requested within the framework of main proceedings and regulating the situation for the duration thereof are interlocutory decisions within the meaning of Art. 93 FSCA. The contested decision is therefore such an interlocutory decision.

Irreparable harm (consid. 2.2): Under Art. 93 para. 1 lit. a FSCA, an appeal against interlocutory decisions is only admissible if an irreparable harm of a…