Ness Global Services Ltd v Perform Content Services Ltd

Articles 33 and 34 of Regulation (EU) No.1215/2012 apply only where the second-seised Member State court’s jurisdiction is based on Article 4 or Articles 7 to 9. They are unavailable where jurisdiction is conferred by Article 25, even if domicile also provides a concurrent jurisdictional basis. The gateway cannot be extended by reflexive interpretation. A non-exclusive jurisdiction agreement therefore prevents a stay under Article 33 in favour of prior proceedings in a third State. Alternatively, the court would have refused a stay because it was not necessary for the proper administration of justice.

Perform applied under CPR Part 11 to stay Ness’s English proceedings under Article 33, alternatively Article 34, of Regulation (EU) No.1215/2012. Perform had first commenced substantially overlapping proceedings in New Jersey concerning termination of the parties’ Development Center Agreement. That agreement was governed by English law and contained a non-exclusive submission to the jurisdiction of the courts of England and Wales.

The central questions were whether Articles 33 or 34 applied where the English court’s jurisdiction arose concurrently from the defendant’s domicile under Article 4 and the non-exclusive jurisdiction agreement under Article 25, whether the provisions could apply reflexively, and, if so, whether a stay was justified.

1. Application dismissed. Article 33 was unavailable because the court’s jurisdiction was not based on Article 4. The same conclusion applied to Article 34.
2. The gateway words in Articles 33 and 34 were deliberately included to narrow those provisions. They make it a pre-condition that the second-seised court’s jurisdiction is founded on Article 4 or Articles 7 to 9. If another provision confers jurisdiction, Articles 33 and 34 are not engaged, even where Article 4 also supplies a concurrent or cumulative basis.
3. Article 25 confers mandatory jurisdiction whether the agreement is exclusive or non-exclusive. The internal hierarchy of the Regulation resolves conflicts between jurisdictional bases pointing to different Member State courts. It does not determine the meaning of the gateway where concurrent bases confer jurisdiction on the same court.
4. The court approved the reasoning in UCP plc v Nectrus Ltd that Articles 33 and 34 proceed solely by reference to Articles 4 and 7 to 9 and contain no reservation for Article 25 jurisdiction.
5. Reflexive interpretation is confined to extending a provision referring to a Member State or Contracting State so that it operates in relation to a non-Member or non-Contracting State. Articles 33 and 34 already constitute codified reflexivity. There was no principled basis for extending them further where their express gateway conditions were not met.
6. Article 33’s discretionary stay question therefore did not arise. In any event, the judge stated that he would have refused a stay. The dispute’s centre of gravity was Slovakia, the contract was governed by English law, and the parties had accepted the risk of parallel proceedings through their non-exclusive jurisdiction agreement.
7. The formal order was that the jurisdiction application was dismissed.