Ebury Partners Belgium NV/SA v Grossiste Francochine SARL

Where a party brings foreign proceedings in breach of a valid exclusive English jurisdiction agreement, the English court will ordinarily grant an anti-suit injunction unless the defendant establishes strong reasons to refuse relief. The existence of mandatory foreign law which would override the parties’ choice of forum is not generally a strong reason. This remains so where foreign law affords protection to a corporate non-professional or quasi-consumer, particularly in an international commercial transaction. The court must give substantial weight to the parties’ freely chosen bargain. A possible route under Article 3.3 of the Rome 1 Convention for applying foreign law does not itself justify refusing the injunction, since the English court can apply foreign law if the relevant conditions are established.

The applicant, a Belgian financial-services company, and the respondent, a French wholesale vaping-products company, entered into a relationship agreement containing English governing-law and exclusive-jurisdiction clauses. After disputes concerning unpaid margin calls, the respondent commenced proceedings in Paris seeking declarations that the agreement and jurisdiction clause were invalid.

The applicant applied for an interim anti-suit injunction. The respondent argued that French law treated it as a non-professional or quasi-consumer and would afford protections unavailable under English law. The central issue was whether those protections, or the possible application of French law under Article 3.3 of the Rome 1 Convention, constituted strong reasons not to enforce the exclusive English jurisdiction agreement.

1. Application granted. The French proceedings had been commenced in breach of a valid exclusive English jurisdiction agreement, and an interim anti-suit injunction was granted.
2. The principles stated in QBE Europe SA/NV v Generali Espana de Seguros Y Reaseguros [2022] EWHC 2062 (Comm) applied. The claimant had to establish with a high degree of probability that a jurisdiction agreement governed the dispute. The court then had to consider whether the defendant showed strong reasons for refusing relief. Those requirements were satisfied.
3. The parties’ choice of English law governed the validity of the jurisdiction clause. Although Rome 1 did not directly govern jurisdiction agreements, Article 10.1 supported the conclusion that the law governing the matrix contract governed the clause.
4. The existence of mandatory foreign provisions which might override the contractual choice of jurisdiction was not, in itself, a strong reason to refuse relief. English courts generally adopt an uncompromising approach where a party is in breach of an exclusive forum agreement.
5. The respondent’s status as a corporate non-professional under French law did not alter that conclusion. The case did not involve natural-person consumers, and the respondent was engaged in substantial international commercial activity. The protections available under French law therefore did not outweigh the importance of enforcing the parties’ freely chosen bargain.
6. Phillip Alexander Securities and Futures Ltd v Bamberger [1997] ILPR 73 was distinguishable. It concerned actual consumers, existing favourable decisions in Germany, and positive evidence concerning the German courts’ attitude to anti-suit relief. The judge’s observations in that case were not necessary to its decision.
7. The possible application of Article 3.3 of Rome 1 did not provide a strong reason to refuse relief. The provision offered only a possible route to applying French law, its conditions were difficult to establish, and the English court could apply the foreign law if appropriate. The injunction therefore followed whether the argument was based directly on Article 3.3 or on the court’s general discretion.
8. Costs were summarily assessed at £42,000, excluding VAT.