1 16-3704-cv MBC Fin. Servs Ltd. v. Boston Merch. Fin. Ltd. UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the Unite d States Court of Appeals fo r the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 23 rd day of August, two thousand seventeen. PRESENT: PIERRE N. LEVAL, REENA RAGGI, RAYMOND J. LOHIER, JR., Circuit Judges

. MBC FINANCIAL SERVICES LTD., Plaintiff-Appellant , v. No. 16-3704-cv BOSTON MERCHANT FINANCIAL, LTD., BOSTON MERCHANT FINANCIAL, LLC, PAVEL “PAUL” BELOGOUR, Defendants-Appellees , FUNDADMINISTRATION, INC., Defendant.
APPEARING FOR APPELLANT: NATHAN P. PEREIRA (Marc S. Koplik, on the brief ), Henderson & Koplik LLP, New York, New York.2APPEARING FOR APPELLEES: JAMES L. TUXBURY (Kelley A. JordanPrice, on the brief ), Hinckley, Allen & Snyder LLP, Boston, Massachusetts. Appeal from a judgment of the United Stat es District Court for the Southern District of New York (Deborah A. Batts, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on October 5, 2016, is AFFIRMED. Plaintiff MBC Financial Services Ltd. (“MBCFX”), a foreign currency exchange market brokerage company in corporated and licensed in the British Virgin Islands (“BVI”), brought this action against Boston Merchant Financial, Ltd. (“BMFN”), a foreign currency broker incorporated and registered in the BVI; BMFN’s President and CEO, Pavel Belogour; and Bo ston Merchant Financial, LL C, a now-defunct limited liability company organized u nder the laws of Delaware with its principal place of business in Boston, Massachusetts (collectiv ely, “defendants”). MBCFX asserts claims for violations of the Commodity Exchange Act (“CEA”) as to BMFN and Belogour, and claims for common law fraud, breach of fiduc iary duty, constructive trust, negligence, conversion, and accounting as to all defenda nts. MBCFX also seeks a declaratory judgment that the corporate defendants are alter egos of Belogour. MBCFX now appeals the dismissal of its complaint based on the foru m selection clause in the Corporate Client Agreement governing the parties’ relationship. Atlantic Marine Construction Co. v. Unite d States District Court for the Western District of Texas , 134 S. Ct. 568, 581 (2013), holds that forum non conveniens is the proper mechanism for enforcing a forum selection clause at th e motion to dismiss stage.3 This circuit has yet to reso lve whether the interpretation and application of a forum selection clause is reviewed for abus e of discretion, as is typical of forum non conveniens dismissals, or de novo , as is typical of forum selection clause dismissals. See Martinez v. Bloomberg LP , 740 F.3d 211, 217 (2d Ci r. 2014). We need not resolve that question here because under either standard , we identify no error. In conducting our review, we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our deci sion to affirm.
1. Enforcement of the Fo rum Selection Clause “When the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum spec ified in that clause.” Atlantic Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex. , 134 S. Ct. at 581. Determining whether to dismiss a claim based on a foru m selection clause in volves a four-part analysis. At the first three steps, a cour t asks (1) whether the clause was reasonably communicated to the party resi sting enforcement; (2) whethe r the clause is mandatory,
i.e. , whether the parties are required to brin g any dispute to the designated forum; and (3) whether the claims and par ties involved in the suit are subject to the forum selection clause. If the answer to a ll three questions is yes, th e clause is “presumptively enforceable.” Phillips v. Audio Active Ltd. , 494 F.3d 378, 383 (2 d Cir. 2007). At the final step, a court asks (4) whether the resi sting party has rebutted that presumption by making “a sufficiently strong showing that ‘enforcement would be unreasonable or unjust, or that the clause was invalid fo r such reasons as fraud or overreaching.’” Id. at 383–84 (quoting M/S Bremen v. Zapa ta Off-Shore Co. , 407 U.S. 1, 15 (1972)).4 The forum selection clause in the Corporate Client Ag reement reads as follows: Client agrees that any civil action, ar bitration or other proceeding between BMFN and its employees or agents and Client arising out of or relating to this Agreement shall be commenced, heard and resolv ed only by a tribunal located in Switzerland. App’x 100. Insofar as MBCFX raises various ch allenges to this clau se for the first time on appeal, it is axiomatic that our review is lim ited to issues first raised in the district

court. See Mhany Mgmt., Inc. v. Cty. of Nassau , 819 F.3d 581, 615 (2d Cir. 2016) (stating “well-established gene ral rule” that arguments av ailable, but not raised, by parties before district court will not be entert ained on appeal unless “necessary to avoid a manifest injustice” (internal quotation mark s omitted)). MBCFX offers no explanation for its forfeiture and makes no argument that consideration of these issues is “necessary to avoid a manifest injustice.” Id. (internal quotation marks omitted). As such, we consider only two contentions, preserved in the district court and relating to steps three and four of the forum selection clause inqu iry: (1) the Corporate Client Agreement does not govern any of MBCFX’s cau ses of action; and (2) in an y event, enforcement of the forum selection clause is unreasonable becaus e it deprives MBCFX of due process and is against public policy. MBCFX argues that, under BVI law, 1 its claims are not subject to the forum selection clause. 2 The plain language of the foru m selection clause and governing

1 The Corporate Client Agreement choice of la w provision stipulates BVI law. Under our precedent, contractual choice of law govern s the interpretation of a forum selection clause, i.e. , steps two and three of the inquiry, whereas federal law determines its enforceability, i.e. , step four of the inquiry. See Phillips v. Audio Active Ltd. , 494 F.3d at 384–85. We have not yet d ecided and do not here decide which body of law applies to5 precedent are clearly to the contrary . Courts in the BVI rely on Fiona Trust & Holding Corp. v. Privalov , [2007] 2 Lloyd ’s Rep. 267, see, e.g. , Vento v. Martin Kenney & Co. , Claim No. BVIHCV 2014/ 0061, which holds, in the context of an arbitration clause, that “[t]he words ‘arising out of’ should cover ev ery dispute except a dispute as to whether there was ever a contract at all,” Fiona Tr. & Holding Corp. v. Privalov , [2007] 2 Lloyd’s Rep. 267. Skype Technologies SA v. Joltid Ltd. , [2009] EWHC (Ch) 2783, confirms that this principle applies with equal force to forum selection clauses. As such, BVI precedent requires us to read th e forum selection clause at i ssue broadly to encompass all claims “arising out of or relating to” the Corporate Client Agreement. App’x 100. Accordingly, because MBCFX’s claims all arise out of alle gedly unauthorized trades on the account provided to it pursuant to the Co rporate Client Agreement “in connection with the purchase and sale of . . . Forex a nd any similar instruments . . . which may be purchased or sold by or throu gh BMFN for [MBCFX’s] account[s],” id. at 99, they are all subject to the forum selection clause. MBCFX’s remaining enfor ceability challenges relate to public policy and the convenience of litigating in Sw itzerland. The pres umption of a forum selection clause’s enforcement will be ove rcome if “(1) its incorporation was the result of fraud or the first prong of the analysis. See Starkey v. G Adventures, Inc. , 796 F.3d 193, 196 n.1 (2d Cir. 2015). We assume, as the distri ct court did, and as the parties do not meaningfully dispute, that federa l law applies to the first prong.

2 MBCFX also argues that its claims are not s ubject to the forum selection clause because there is a dispute as to whether any contract ex isted at all, and if a contract existed, it is ambiguous and contradictory, and therefore cannot be enforced. These arguments were not raised before the district court; accordi ngly, we decline to reach them on appeal. See Mhany Mgmt., Inc. v. Cty. of Nassau , 819 F.3d at 615.6 overreaching; (2) the law to be applied in th e selected forum is fundamentally unfair; (3) enforcement contravenes a st rong public policy of the forum in which suit is brought; or (4) trial in the selected forum will be so difficult and in convenient that the plaintiff effectively will be deprived of his day in court.” Martinez v. Bloomberg LP , 740 F.3d at 228 (internal quotation marks omitted). Thes e exceptions are “interpreted narrowly.” S.K.I. Beer Corp. v. Baltika Brewery , 612 F.3d 705, 711 (2d Cir. 2010). MBCFX does not base any challenge on the first two exceptions. As to the third exception, MBCFX argues that enforcement would contravene the United States’ strong public po licy of protecting financial markets insofar as defendants operate within the United States. To overco me the presumption of enforcement on this exception, however, MBCFX must demonstrate “t hat available remedies [under BVI law] are insufficient to deter [BVI] issuers from exploiting American investors through fraud, misrepresentation or inadequate disclosure.” Roby v. Corp. of Lloyd’s , 996 F.2d 1353, 1365 (2d Cir. 1993); see id. at 1363 (“[I]t is not enough th at the foreign law or procedure merely be different or less favorable than that of the United States.”). MBCFX makes no such showing. It merely poin ts to the purpose of the CEA, without either asserting that it would be deprived of comparab le remedies if forced to litigate in Switzerland under BVI law or explaining how the purpose of the CEA would be undermine d if plaintiff were limited to the remedies available in Switzerland. See Martinez v. Bloomberg LP , 740 F.3d at 229 (holding that me re inability to pursue United St ates statutory cause of action in England did not defeat enforc ement of forum selection clause). Accordingly, the public policy exception does not apply in this action.7 As to the fourth exception, MBCFX c ontends that litigating in Switzerland would “deny it access to eviden ce, witnesses and, ultimately, its day in court and the chance for justice to be done.” Appellant’s Br. 29–30. MBCFX did not adduce any evidence in support of this argument or explain the relevance of the purportedly inaccessible witnesses’ testimony to its case. “Unsupporte d statements such as these do not meet the heavy burden of proof required to set aside a forum-selecti on clause on the ground of inconvenience.” Effron v. Sun Line Cruises, Inc. , 67 F.3d 7, 11 (2d Cir. 1995) (internal quotation marks omitted); see also id . (“Although appellee would prefer the relative comfort of a court in New York or Florida, she agreed to have her claim adjudicated in Greece. This agreement should not be nega ted unilaterally by plaintiff’s conclusory assertions that she cannot afford to travel to Greece, that she would be afraid to stay at a strange city, that she does not know any Greek lawyers, etc.”). As the Supreme Court has explained, “where[, as here,] it can be said with reasonable a ssurance that at the time they entered the contract, the parties to a freel y negotiated private in ternational commercial agreement contemplated the cl aimed inconvenience, it is difficult to see why any such claim of inconvenience should be heard to render the forum clause unenforceable.” M/S Bremen v. Zapata Off-Shore Co. , 407 U.S. at 16. Indeed, a lthough plaintiff asserts that enforcement of the forum selection clause “w ould effectively be a death knell to this action,” Appellant’s Br. 31, in the absence of any evidence that it would be unable to present its case in Switzerland, plaintiff has not carried its burden under this exception, see Phillips v. Audio Active Ltd. , 494 F.3d at 393; see also S.K.I. Beer Corp. v. Baltika Brewery , 612 F.3d at 712 (reasoning that “speculation” as to availability of legal8 remedies and protection of rights in foreig n forum was inadequate to defeat forum selection clause presum ption of enforceability). We therefore conclude that the foru m selection clause is enforceable and applicable to plaintiff’s claims, and we affirm the district court’s ruling to that effect. 3
2. Conclusion We have considered MBCFX’s remaining arguments and conclude that they are without merit. Accordingl y, the district court’s October 5, 2016 judgment is
AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court

3 Because we affirm the dismissal on forum non conveniens grounds, we need not reach any of the alternative bases for dismissa l discussed by the district court.