SWITZERLAND Law and Practice Contributed by: Daniel Zimmerli, Michael Schifferli and Nathalie Herzog, Wenger Plattner
9.2 Contribution A party can bring contribution proceedings against a third party according to Article 81 CPC if they believe they will have a claim against the third party if they are unsuccessful against the main party (regress). The admission of such a contribution presupposes that the claims are factually related to the main action, that the court has jurisdiction and that the main action and the contribution procedure are to be asserted in the ordi - nary procedure. Whether a contribution is also pos - sible in a summary procedure (for example, interim measures; see also 10.1 Injunctions ) is controversial. Swiss law permits a claimant to require another party to act, to refrain from acting, or to tolerate a particu - lar action, provided the claimant has a substantive right to do so (Article 84 CPC). In antitrust law, a per - son hindered by an unlawful restraint of competition from entering or competing in a market may seek the removal of, or abstention from, the hindrance (Article 12 CartA). An injunction can be obtained in three different ways: through an ordinary procedure, interim/provisional measures or ex parte interim/provisional measures. The interim measures are granted if the claimant can credibly demonstrate (strict proof is not required) that a right they have or are entitled to, has been violated or a violation is anticipated (Article 261 para. a CPC). In antitrust cases this will often be the violation of Arti - cle 12 CartA in connection with Article 5 and Article 7 CartA (agreements in restraint of competition and abuse of a dominant market). Furthermore, they must credibly demonstrate that the violation threatens to cause “not easily reparable harm” to the claimant (Article 261 para. b CPC). If granted, the court can forbid a particular action, order to remedy an unlaw - ful situation, give an order to a register authority or to a third party, or allow performance in kind. However, orders to pay a sum of money are generally excluded (Article 262 CPC). 10. Other Remedies 10.1 Injunctions
Applications for interim measures are handled under summary proceedings, and the timeframe depends on the urgency of the matter and the court’s work - load. It will usually be considered in a few weeks to a few months. To expedite the procedure, documentary evidence is usually the only form of proof accepted. An ever faster route is available through ex parte interim measures (a subcategory of interim measures). They can be granted without notice to the other party often within a few days, in some cases even hours. They are only granted in cases of special urgency, and particularly if there is a risk that the enforcement will be jeopardised if the counterparty is warned of the planned measures beforehand (Article 265 CPC). Fur - thermore, the claimant will have to credibly demon - strate the same requirements as for interim measures (see above). Immediately after the ex parte interim measures have been granted, the court must either hold a hearing or – as most courts will – allow the counterparty to respond in a written brief. This turns the ex parte interim measures into an interim measure procedure. When granting interim measures (with or without prior ex parte interim measures), the court will set the claim - ant a deadline to start ordinary proceedings (unless this has already been done). If no ordinary procedure is started within the deadline, the interim measures will lapse. Ordinary proceedings can also be started without prior interim measures having been ordered. In the ordinary proceedings, the court will determine whether the claimant has a right to the measures on a long-term basis. In this procedure, all types of evi - dence will be allowed, and the court has to apply the full standard of proof. Security and Damages for (Ex Parte) Interim Measures If damages for the defendant are anticipated, the court may make the interim measures conditional on the payment of a security deposit (Article 264 para. 1 CPC). If the interim measures are unjustified and cause a loss or damage for the defendant, the claim - ant will be held liable. If they can prove that they applied for the interim measures in good faith, the
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