Blog: Post Brexit: The return of anti-suit injunctions from the English court … – Lexology

In Ebury Partners Belgium SA/NZ v Technical Touch BV and another [2022] EWHC 2927 (Comm), the English court granted an anti-suit injunction (ASI) restraining the parties from pursuing proceedings in Belgium as this amounted to a breach of an exclusive English jurisdiction clause.

Prior to Brexit, the English court was prohibited from granting an ASI in respect of proceedings brought or threatened to be brought before the courts of another EU Member State even if the parties had contractually agreed a choice of English jurisdiction.

Post-Brexit, this decision confirms that where there is an exclusive English jurisdiction clause in a contract, the English court has jurisdiction to grant an ASI restraining parties from pursuing proceedings in a different court in an EU Member State.

What is an ASI?

ASIs are injunctions which prohibit the respondent from bringing or pursuing a case in another jurisdiction.

A common situation in which a party will seek an ASI is where a dispute relates to a contract that contains an English jurisdiction clause.

ASIs are made against respondents and not against the foreign court itself. If the respondents ignore the injunction and pursue the case overseas anyway, the ASI has no impact on any judgment or award the foreign court then makes. The English court would, however, likely take into account the existence of the ASI when deciding whether to enforce such a judgment within its jurisdiction.

Whilst an EU Member State, the UK was a party to the EU’s Brussels regime on jurisdiction and bound by decisions of the European Court of Justice which directed that courts of EU Member States were prohibited from granting ASIs in respect of proceedings before the courts of another EU Member State.

This decision is the first in which such an ASI has been granted post-Brexit to restrain proceedings brought in breach of an English jurisdiction clause. It comes shortly after a similar ASI was granted to restrain proceedings in Spain in breach of an arbitration agreement in QBE Europe SA/NV and another v Generali España de Seguros y Reaseguros [2022] EWHC 2062 (Comm).

The Ebury case

In Ebury, both the claimant and the first defendant were Belgian. The claimant’s terms and conditions, which the defendant signed up to, included an exclusive English jurisdiction clause. When a dispute subsequently arose between the parties, the defendant company issued proceedings in Belgium. The claimant issued parallel proceedings in England and applied for an ASI to stop the defendants pursuing the Belgian proceedings.

In deciding the ASI application, the main question was whether, as a matter of English law, the English jurisdiction clause had been incorporated into the contract. The court found it clear that the jurisdiction clause was properly incorporated as the defendants had sufficient notice of it.

Once it is established that there is an exclusive English jurisdiction clause, the English court will generally grant an ASI unless the respondent can show strong reasons why it should be refused.

In this case, the defendants were unable to show any such strong reasons. The court held that some of the reasons the defendants argued for, such as the location of witnesses and documents, are not factors that the English court will generally take into account when considering whether or not to grant an ASI, as they were foreseeable at the time the parties agreed to a specific country’s courts having jurisdiction.

In the circumstances, the English court granted the ASI.

Conclusion

An ASI can be a materially important interim remedy available from the English court. It can be deployed to ensure that the contractual bargain originally agreed between parties in relation to jurisdiction is complied with.

The Ebury decision confirms that the English court has the jurisdiction to grant ASIs in respect of any foreign proceedings that breach an exclusive English jurisdiction agreement following the end of the Brexit transition period. This bolsters the certainty that is available to parties who include exclusive English jurisdiction clauses to govern their contractual disputes.

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