Provisional measures against the obligation to surrender card issuing devices: non-entry for lack of irreparable harm, approval as to the amount of security and the right to be heard

Facts

Parties and lower courts: [B. GmbH] (applicant 1, respondent 1) planned the Hotel [F.] in [U.] , which is operated by [C. AG] (applicant 2, respondent 2). [A. AG] (respondent to the application, appellant) had concluded a price assurance agreement with [E. GmbH] , the legal predecessor of applicant 1, on 25 February 2005. The purpose was to offer hotel guests mountain railway cards at a fixed, reduced and indexed price, whereby at least 90% of hotel overnight stays were to be sold only together with a mountain railway card.

Procedural history:

• On 29 June 2018 the applicants requested provisional measures from the Regional Court of Plessur. They sought disclosure of the prices of the mountain railway cards for the summer and winter seasons and the provision of two card issuing devices.
• On 5 July 2018 the Regional Court declined to enter into the matter. The Cantonal Court of Graubünden upheld the appeal on 13 September 2018 and remitted the case.
• On 20 February 2019 the Regional Court again declined to enter into the matter. The Cantonal Court again upheld the appeal on 17 April 2019 and remitted the case.
• On 28 June 2019 the Regional Court provisionally ordered the respondent to the application to disclose prices and to surrender two card issuing devices. The applicants were ordered to provide security of CHF 400,000.-- per winter season.
• Both parties appealed. On 16 December 2019 the Cantonal Court set aside dispositive paragraphs 2, 3 and 6 of the first-instance decision. It ordered the respondent to the application to disclose prices immediately for the 2019/2020 winter season (dispositive paragraph 2.1). The applicants were to inform the respondent three months before the hotel reopened and to provide security of CHF 20,000.--, likewise for the following winter season (dispositive paragraph 2.2). After receipt of the security, the respondent was to provide and commission two card issuing devices at its own expense (dispositive paragraph 2.3). The measures under dispositive paragraphs 2.1 and 2.3 were made subject to the criminal penalty of Art. 292 SCC (dispositive paragraph 2.4). The applicants were given a period of 60 days to file an action (dispositive paragraph 3). The respondent's appeal was otherwise dismissed (dispositive paragraph 4).
• On 19 February 2020 the Cantonal Court clarified dispositive paragraph 2.3 to the effect that, after reopening and provision of the security with proof, the devices were to be handed over immediately.

Requests before the Federal Supreme Court: By way of a civil law appeal, the respondent to the application requested that the decision of 16 December 2019 be set aside with the exception of dispositive paragraph 2.1, and that the application for provisional measures be dismissed except as to the disclosure of prices for the 2019/2020 winter season. In the alternative, it requested security of CHF 400,000.-- per winter season and a prohibition, backed by criminal penalty, on passing on mountain railway cards generated with the devices to non-hotel guests. In the further alternative, it requested remittal. The respondents to the appeal requested dismissal, as did the lower court.

Main issues: (1) existence of an irreparable harm in the obligation to surrender the card issuing devices; (2) amount of security under Art. 264 CPC and the creditworthiness of the applicants; (3) violation of the right to be heard due to the failure to address the prohibition request.

Considerations

1. Admissibility The Federal Supreme Court examines admissibility of its own motion. This is a civil matter (Art. 72 FSCA) against a decision of a superior cantonal court acting as appellate instance (Art. 75 FSCA). The appellant did not succeed fully with its requests (Art. 76 FSCA), the amount in dispute is met (Art. 74 para. 1 lit. b FSCA), and the time limit was observed (Art. 100 para. 1 in conjunction with Art. 46 para. 1 lit. c FSCA). The decision does not terminate the proceedings (Art. 90 FSCA), since the applicants were given a deadline to file an action. An interlocutory decision under Art. 93 FSCA is therefore at issue. In relation to provisional measures, an appeal is admissible only if an irreparable harm of a legal nature threatens (Art. 93 para. 1 lit. a FSCA). Purely factual disadvantages such as prolongation of proceedings or increased costs are not sufficient. The exception to the principle of a single assessment is to be applied restrictively. According to the more recent, established case law, the appellant must specifically demonstrate in its submission how such harm threatens it.

2. Card issuing devices (ownership and economic freedom) The appellant complained of an interference with its ownership of the devices. The Federal Supreme Court rejected this, since ownership had not been established in the lower instance and the appellant did not show that such devices were only available in limited quantities. The cited judgments 5A_237/2009 and 5A_211/2016 concerned other facts (suspensive effect in cases of incapacitation, representation by a curator). Judgment 4A_575/2018 concerned the concept of a harm not easily reparable under Art. 261 para. 1 lit. b CPC and is not relevant. On freedom of contract as a component of economic freedom (Art. 27 Cst.), the Federal Supreme Court held that the respondents sell the services in their own name but remain obliged to account. That the appellant wished to terminate the continuing contractual relationship due to loss of trust does not establish an irreparable harm, since it can continue to contract with third parties. The complaint concerning an offsetting situation and an unproven damage did not satisfy the duty to give reasons, because it rested on a factual basis not present in the contested decision. The appeal concerning the obligation to surrender the devices was therefore not entered into (consideration 2.2).

3. Amount of security (Art. 264 CPC) Federal Supreme Court practice recognises an irreparable harm where a requested security for party costs is refused. The same may apply to security for possible damage from provisional measures (Art. 264 para. 1 CPC), particularly where it is specifically shown that this damage cannot be remedied, or not fully remedied, even by a favourable final decision. Since the appellant questioned the creditworthiness of the opposing parties, an impending irreparable harm regarding the amount of security was to be assumed; to that extent the appeal was entered into. In provisional measures proceedings the standard of proof is that of prima facie showing (Art. 261 and 248 lit. d CPC). The court may make the measure conditional on the provision of security (Art. 264 para. 1 CPC). In appeals against provisional measures only constitutional rights may be invoked (Art. 98 FSCA), and complaints must be specifically…