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28 Oct 2019

Speculative investors in complex currency transactions (including Bitcoin futures) who put their capital at risk, can still be “consumers”

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Under the Recast Brussels Regulation, effectively rendering choice of jurisdiction clauses void

Ramona Ang v Reliantco [2019] EWHC 879 (Comm) (12 April 2019)

Ms Ang was an individual investor in Bitcoin futures. She brought proceedings against Reliantco over the handling of her Bitcoin account in England, notwithstanding an exclusive jurisdiction clause in her contract providing for the exclusive jurisdiction of the Cypriot Courts.

Reliantco challenged jurisdiction on the basis of its contract but the challenge failed as the Baker J concluded that Ms Ang fell within the definition of consumer under Article 17 of the Recast Brussels Regulation (EU No 1215/2012).

By way of recap, Article 4 of the Recast Brussels Regulation provides that a Defendant shall ordinarily be sued in their state of domicile. Article 25 provides that choice of jurisdiction clauses shall be upheld. Articles 17 to 19 cover “consumer contracts” and provide that a consumer can only be sued in their state of domicile and that a jurisdiction agreement which conflicts with that provision is generally ineffective.

For over a decade, there has been uncertainty throughout EU Courts over whether wealthy private investors can ever be deemed “consumers”. In Standard Bank London v Apostolakis [2003], the Greek Courts decided they could not. Here, the Court reached the opposite view in Standard Bank London v Apostolakis [2002] CLC 939. It held that the focus should be on the purpose of the transaction, not the spread, regularity or value of the investment activity. Where an individual is investing “personal surplus wealth” for the purpose of seeking to increase that wealth, this is likely to be a “consumer” activity.

The Court also ruled (obiter) that Ms Ang’s claim under the GDPR would also have “trumped” the jurisdiction clause in any event. In the first analysis on this point, the Court held that Article 79 of the GDPR (conferring jurisdiction on the Court of a GDPR Claimant’s habitual residence) will take priority over a choice of jurisdiction clause under the Recast Brussels Regulation.

Stephenson Harwood comment

When selecting dispute resolution clauses, it is important to be aware that exclusive jurisdiction clauses can be overridden: 1) where claims are brought under the GDPR; and 2) where Claimants can establish themselves as “consumers”.

As to whether a counterparty is a consumer, it is worth bearing in mind that the legal definition remains very finely balanced.

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