Anti-suit Injunction Granted Restraining Proceedings In An EU Member State

• Published date: 06 December 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation
• Law Firm: Herbert Smith Freehills
• Author: Ms Anna Pertoldi and Maura McIntosh

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...