Facts

Parties and instances: The appellant [A.] is a member of the association [B.] (respondent 1, represented by lawyer Anita Hüsler). Respondents 2 to 5 are natural persons ([C.] , [D.] , [E.] , [F.] ). Fundamental disagreements exist between the appellant and the association, in particular concerning the management of the association and the holding of general meetings. This led to several court proceedings, with several appeals pending before the Federal Supreme Court.

Procedural history:

  • By application of 24 June 2021, the appellant requested an ex parte or provisional prohibition on holding the general meeting of 30 June 2021 as an association meeting, as well as an explicit prohibition on raising, placing on the agenda, or addressing his exclusion from the association under any item.
  • By decision of 25 June 2021, the Cantonal Court of Nidwalden dismissed the application.
  • By decision of 14 October 2021 (ZA 21 15), the Obergericht of the Canton of Nidwalden did not enter upon the appeal of 7 July 2021.
  • By appeal of 20 November 2021, the appellant requested before the Federal Supreme Court the annulment or, alternatively, remittal, the granting of suspensive effect, and a provisional prohibition on the association implementing the resolutions of the general meeting of 30 June 2021.

Subject matter of the dispute: Provisional measures (prohibition on holding the association meeting), non-entry by the Obergericht on the appeal.

Considerations

Admissibility and scope of review: This is a civil matter, and the contested decision is a final decision (Art. 72 para. 1 and Art. 75 para. 1 FSCA). Since it concerns a provisional measure, before the Federal Supreme Court only violations of constitutional rights may be asserted (Art. 98 FSCA). The strict principle of complaint applies (Art. 106 para. 2 FSCA): only complaints raised clearly and in detail, and where possible substantiated, will be examined; insufficiently reasoned and purely appellatory criticism is not admissible. The subject matter of the dispute is solely the lower court's non-entry on the appeal, not the matter itself and not the first-instance decision.

Considerations of the Obergericht: The appeal was filed only after the general meeting had been held. A provisional measure cannot, by its nature, be ordered retroactively; an approval could no longer assist the appellant in obtaining his rights. The required legal interest worthy of protection was therefore lacking, which, as part of the material grievance, also applies in appellate proceedings. No practical interest going beyond hypothetical considerations was apparent. In an alternative reasoning, the Obergericht stated that the appeal would in any event not be entered upon for lack of sufficient reasoning or engagement with the first-instance considerations.

Assessment of the complaints: Apart from abstract statements on the violation of Art. 29 Cst. (right to be heard or denial of justice), Art. 30 Cst. (impartiality), and Art. 5 para. 3 and Art. 9 Cst. (arbitrariness and good faith), the appeal remains unsubstantiated. The appellant argues in an appellatory manner, fails to address the considerations of the contested decision, discusses the matter itself, and…