Introduction

Perform Content Services Ltd v. Ness Global Services Ltd ([2021] EWCA Civ 981) is a landmark case adjudicated by the England and Wales Court of Appeal (Civil Division) on July 1, 2021. This case delves into the intricate application of Article 33 of the Brussels Recast Regulation, particularly focusing on scenarios where a non-exclusive jurisdiction agreement coexists with the defendant's domiciliary jurisdiction. The central parties involved are Perform Content Services Ltd ("Perform") and Ness Global Services Ltd ("Ness"), both domiciled in England, engaged in a contractual relationship governed by the Development Center Agreement ("DCA").

Summary of the Judgment

The core dispute arose when Perform, domiciled in England and governed by the DCA, initiated proceedings in the Superior Court of New Jersey, USA, despite a prior agreement granting non-exclusive jurisdiction to the English courts. Ness responded by filing a suit in the London Circuit Commercial Court. Perform sought to stay the English proceedings, invoking Article 33 of the Brussels Recast Regulation, arguing that concurrent actions could lead to irreconcilable judgments.

The High Court dismissed Perform's application, a decision upheld by the Court of Appeal. The appellate judgment clarified that Article 25 of the Regulation, which confers mandatory jurisdiction based on jurisdiction agreements, takes precedence over Article 33. Consequently, non-exclusive jurisdiction agreements under Article 25 preclude the application of Article 33, solidifying the mandatory jurisdiction of the agreed courts irrespective of the defendant's domicile.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to underpin its reasoning:

• Owusu v Jackson [2005] QB 801:

A seminal case where the European Court of Justice emphasized the need for procedural fairness and the prevention of forum-shopping, influencing the interpretation of jurisdictional clauses.

• UCP plc v. Nectrus Ltd [2018] EWHC 380 (Comm):

This case reinforced the mandatory nature of jurisdiction agreements under Article 25, asserting that both exclusive and non-exclusive jurisdiction agreements confer obligatory jurisdiction without discretion for the court to stay proceedings.

• Citicorp Trustee Co Ltd v. Al-Sanea [2017] EWHC 2845 (Comm):

Confirmed that jurisdiction agreements are binding, and courts do not possess discretionary authority to disregard such agreements in favor of domiciliary jurisdiction.

• Privatbank v Kolomoisky [2019] EWCA Civ 1708:

Demonstrated the Court of Appeal's stance on the reflexive application of lis pendens rules, advocating for flexibility in jurisdictional proceedings.

Legal Reasoning

The court's legal reasoning hinged on the hierarchical structure of the Brussels Recast Regulation. Article 25, which governs prorogation of jurisdiction through contractual agreements, was deemed paramount over Article 4's default domiciliary jurisdiction. The judgment highlighted that:

• Article 25 confers mandatory jurisdiction regardless of exclusivity, thereby nullifying the application of Article 33 when a jurisdiction agreement exists.
• The presence of a non-exclusive jurisdiction agreement does not negatively affect the mandatory jurisdiction conferred by Article 25.
• Articles 33 and 34, introduced to address lis pendens with non-Member States, do not apply when jurisdiction is already established under Article 25.
• The court emphasized that the Regulation's language, particularly "shall have jurisdiction," signifies an absolute rule that cannot be overridden by discretionary mechanisms like Article 33 in the context of jurisdiction agreements.

The Court of Appeal thus concluded that Perform's attempt to invoke Article 33 was unfounded, as the jurisdiction agreement under Article 25 was in effect, mandating the English courts' jurisdiction and precluding the application of Article 33.

Impact

This judgment has profound implications for international contracts governed by the Brussels Recast Regulation:

• Reaffirmation of Jurisdiction Agreements: Parties' agreements on jurisdiction, whether exclusive or non-exclusive, hold significant weight and take precedence over other jurisdictional rules within the Regulation.
• Limitation on Article 33: The discretionary nature of Article 33 is effectively constrained when a jurisdiction agreement is in place, enhancing predictability in jurisdictional allocations.
• Prevention of Forum-Shopping: By upholding the mandatory jurisdiction agreements, the judgment discourages parties from initiating proceedings in alternative jurisdictions to gain strategic advantages.
• Guidance for Future Cases: Subsequent litigations involving jurisdictional disputes will reference this case to determine the interplay between contractual jurisdiction agreements and statutory jurisdictional provisions.

Complex Concepts Simplified

Brussels Recast Regulation

A European Union regulation that determines which country's courts have jurisdiction over civil and commercial disputes involving parties from different EU member states.

Jurisdiction Agreement (Prorogation of Jurisdiction)

A contractual clause where parties agree in advance about which court will hear potential disputes arising from their agreement. These can be exclusive (only the agreed court can hear disputes) or non-exclusive (the agreed court has priority, but other courts can also hear disputes).

Article 25 vs. Article 33

Article 25: Establishes that if parties agree on jurisdiction, that jurisdiction is mandatory and takes precedence over default rules based on domicile.
Article 33: Provides courts with discretion to stay proceedings if another court in a third state is already handling the same dispute, aiming to prevent conflicting judgments.

Lis Pendens

A legal doctrine that refers to two or more courts simultaneously handling the same lawsuit. The doctrine aims to ensure that only one court resolves the dispute to prevent inconsistent judgments.

Reflexive Application

A principle where provisions originally intended for Member States are interpreted to apply to non-Member States by analogy, introducing flexibility into jurisdictional determinations.

Conclusion

The Perform Content Services Ltd v. Ness Global Services Ltd judgment significantly clarifies the hierarchy and interplay of jurisdictional provisions within the Brussels Recast Regulation. By affirming the supremacy of jurisdiction agreements under Article 25 over discretionary mechanisms like Article 33, the Court of Appeal provides definitive guidance on handling concurrent proceedings and jurisdictional conflicts. This ensures greater predictability and respect for contractual autonomy in international commercial disputes, discouraging strategic jurisdictional maneuvers and fostering a more stable legal environment within the EU framework.

Practitioners must heed this ruling when drafting jurisdiction clauses, recognizing that even non-exclusive agreements conducted under Article 25 confer mandatory jurisdiction that precludes the application of discretionary stay provisions. This enhances the enforceability of jurisdiction agreements and upholds the regulatory intention to prioritize parties' contractual autonomy within the structured confines of the Brussels Recast Regulation.