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[142] The strong cause test imposes the burden on the party contesting a forum selection
clause to satisfy the Court that there is a good reason it should not be bound by the clause (ZI
Pompey at para 20). The Supreme Court has instructed that it “is essential that courts give full
weight to the desirability of holding contracting parties to their agreements” (ibid at para 20).
The Supreme Court has further stated that forum selection clauses serve a valuable purpose and
“are generally to be encouraged by the courts as they create certainty and security in transaction,
derivatives of order and fairness, which are critical components of private international law”
(Douez v Facebook, Inc, 2017 SCC 33 at para 24 [Douez]; ZI Pompey at para 20).
[143] In The Eleftheria, Justice Brandon set out the strong cause test as follows:
(1) Where plaintiffs sue in England in breach of an agreement to
refer disputes to a foreign Court, and the defendants apply for a
stay, the English Court, assuming the claim to be otherwise within
the jurisdiction, is not bound to grant a stay but has a discretion
whether to do so or not. (2) The discretion should be exercised by
granting a stay unless strong cause for not doing so is shown. (3)
The burden of proving such strong cause is on the plaintiffs. (4) In
exercising its discretion the Court should take into account all the
circumstances of the particular case. (5) In particular, but without
prejudice to (4), the following matters, where they arise, may be
properly regarded: (a) In what country the evidence on the issues
of fact is situated, or more readily available, and the effect of that
on the relative convenience and expense of trial as between the
English and foreign Courts. (b) Whether the law of the foreign
Court applies and, if so, whether it differs from English law in any
material respects. (c) With what country either party is connected,
and how closely. (d) Whether the defendants genuinely desire trial
in the foreign country, or are only seeking procedural advantages.
(e) Whether the plaintiffs would be prejudiced by having to sue in
the foreign Court because they would (i) be deprived of security
for that claim; (ii) be unable to enforce any judgment obtained; (iii)
be faced with a time-bar not applicable in England; or (iv) for
political, racial, religious or other reasons be unlikely to get a fair
trial.
(The Eleftheria; ZI Pompey at 19.)