Ebury Partners Belgium SA/NV v Technical Touch BV & Anor.

An anti-suit injunction will ordinarily be granted where the applicant establishes, to a high degree of probability, a binding jurisdiction agreement covering the foreign proceedings. The defendant must show strong reasons for refusing relief. Foreseeable forum conveniens considerations, the location of witnesses and documents, and the fact that foreign proceedings were commenced first will generally carry little or no weight where they are inconsistent with the parties’ bargain.

Where contractual terms are clearly incorporated by express assent, the whole set of terms is incorporated unless the agreement objectively indicates otherwise. A party’s failure to read accessible terms does not prevent incorporation. Under Article 10(2) of Rome I, it was not unreasonable in the circumstances to apply English law to consent and incorporation.

Ebury provided foreign exchange and payment services to Technical Touch BV, a Belgian company. The company’s director ticked an online box agreeing to Ebury’s terms and conditions, which were accessible through hyperlinks. Those terms contained exclusive English jurisdiction and governing-law clauses. The director later signed a personal guarantee containing similar clauses.

After a dispute concerning margin calls and closed-out foreign exchange trades, the defendants commenced proceedings in Belgium seeking declarations that the agreements were void and disputing liability. Ebury commenced English proceedings and applied for an anti-suit injunction. The defendants challenged incorporation, jurisdiction and the exercise of jurisdiction. The central issues were whether the English jurisdiction agreements were sufficiently established and whether strong reasons justified refusing relief.

1. Jurisdiction agreements. Ebury established to a high degree of probability that the jurisdiction clauses in both the Relationship Agreement and the Guarantee were binding. The Guarantee was signed. The Relationship Agreement was incorporated when the director ticked the box expressly agreeing to Ebury’s terms and conditions. The terms were readily accessible through hyperlinks, and the assent was objectively assent to all the terms, including the jurisdiction clause.
2. The fact that the parties’ detailed commercial arrangements were developed after the online application did not alter the position. Notice of contractual terms may be given before the contract is concluded. The parties had agreed that, if they proceeded with the relationship, the standard terms would govern their dealings. The director’s failure to read the terms was immaterial.
3. Applicable law. Applying Articles 3(5) and 10 of Rome I, English law governed incorporation unless Article 10(2) made Belgian law applicable. Adopting a dispassionate and internationally minded approach, it was not unreasonable to apply English law. The transaction concerned substantial international foreign exchange business and had a significant international character. There was no sufficient distinction between the commercial terms and the jurisdiction clause.
4. Anti-suit relief. The defendants failed to show strong reasons for refusing an injunction. The relative convenience of Belgium, the location of evidence, the Belgian proceedings having been commenced first, and their greater procedural progress were foreseeable forum considerations and did not displace the jurisdiction bargain.
5. The possibility that Belgian mandatory law might be relevant under Article 3(3) of Rome I did not constitute a strong reason. Its application remained uncertain, and the English Commercial Court was capable of determining foreign-law issues. The possibility that the Belgian court might apply a law different from that chosen by the parties was instead a positive reason to protect the contractual choice of law.
6. The anti-suit injunction was granted. The defendants’ applications challenging jurisdiction, seeking a stay, or seeking dismissal were dismissed. It was unnecessary to determine whether service out was also justified under the 2005 Hague Convention.

First-instance decision. No appellate history was stated in the judgment.