Anti-suit injunction granted restraining proceedings in an EU member state

The Commercial Court has granted an anti-suit injunction restraining Belgian proceedings brought in breach of an exclusive English jurisdiction clause: Ebury Partners Belgium SA/NV v Technical Touch BV, Jan Berthels [2022] EWHC 2927 (Comm).

This appears to be one of the first cases post-Brexit in which an anti-suit injunction has been granted by an English court restraining proceedings in an EU member state.

Prior to Brexit, the English court could not grant an anti-suit injunction in respect of EU proceedings as this was considered by the CJEU to be an interference with the jurisdiction of the other EU court, and contrary to the Brussels regime. It was exclusively for the court of the member state to determine whether or not it had such jurisdiction. Depending on the jurisdiction concerned, that could take some time.

In the Ebury case, it was common ground that anti-suit relief is now available from the English court, as shown by an earlier decision granting an anti-suit injunction in support of an arbitration agreement (QBE Europe SA/NV v Generali Espana de Seguros Y Reaseguros [2022] EWHC 2062 (Comm)).

As with non-EU countries, therefore, a court will exercise its discretion to restrain the pursuit of proceedings brought in an EU member state in breach of an English exclusive jurisdiction clause, unless the defendant can show strong reasons for refusing the relief (which it could not in this case).

Background

The first defendant, "TT", was interested in receiving foreign exchange currency services from the claimant, "Ebury". TT's director, the second defendant, "Mr Berthels", ticked the box on Ebury's application form agreeing to Ebury's terms and conditions. Those terms and conditions were available for download and through a link to a webpage containing a pdf, although Mr Berthels did not access them. They provided for English law and exclusive English jurisdiction.

Mr Berthels also entered into a guarantee in respect of TT's obligations to Ebury. The guarantee contained an English law clause and a unilateral clause which provided for English exclusive jurisdiction in respect of any proceedings commenced by Mr Berthels.

A dispute arose when TT failed to make certain payments to Ebury. The defendants commenced proceedings in Belgium seeking negative declaratory relief and challenging the agreements entered into.

Ebury commenced proceedings in England and sought an anti-suit injunction.

Whether the injunction should be granted turned, firstly, on whether the English jurisdiction clause was incorporated into the agreement between Ebury and TT, which entailed considering which law determined this issue.

If it was incorporated, the issue was whether the court should exercise its discretion to refuse relief.

Decision

The Commercial Court (Jacobs J) granted the anti-suit injunction.

The question whether a jurisdiction clause has been incorporated into a contract is usually governed by the putative law applicable to the contract, which in this case was English law as that had been expressly chosen. This was subject to the application of article 10(2) of Rome I (applicable in the UK as retained EU law) which provides that consent to a contractual term may be governed by the law of the country in which a party has their habitual residence (here, Belgium) if it appears from the circumstances that it would not be reasonable to apply the law which would otherwise apply. On the facts, it was not unreasonable to apply English law, including because the transaction had a significant international flavour.

Applying English law, the exclusive English jurisdiction clause had been incorporated into the agreement between Ebury and TT as sufficient notice had been given of its terms. There was no dispute that it had also been expressly incorporated into the guarantee.

So far as the anti-suit injunction was concerned, the applicable principles were summarised in QBE Europe, referred to above. The court will ordinarily exercise its discretion to restrain the pursuit of proceedings brought in breach of a forum clause unless the defendant can show strong reasons for refusing the relief. No sufficiently strong reasons had been shown here.