Nike European Operations Netherlands BV v Rosicky, Court of Appeal - Chancery Division, August 09, 2007, [2007] EWHC 1967 (Ch)

Resolution Date:August 09, 2007
Issuing Organization:Chancery Division
Actores:Nike European Operations Netherlands BV v Rosicky
 
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Neutral Citation Number: [2007] EWHC 1967 (Ch)IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeThursday, 9th August 2007Before:MR. JUSTICE PATTEN - - - - - - - - - - -B E T W E E N :NIKE EUROPEAN OPERATIONS NETHERLANDS B.V.Applicant- and -TOMAS ROSICKYRespondent- - - - - - - - - - -Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737- - - - - - - - - - -Mr. T. De La Mare and Mr. N. De Marco (instructed by McDermott Will & Emery UK LLP) appeared on behalf of the Applicant.Mr. M. Beloff QC and Ms. M. Demetriou (instructed by Addleshaw Goddard LLP) appeared on behalf of the Respondent.- - - - - - - - - - -J U D G M E N TBEVERLEY F NUNNERY & COOFFICIAL SHORTHAND WRITERSMR. JUSTICE PATTEN: 1 This is an application by the claimant in these proceedings, Nike European Operations Netherlands BV, for interim injunctive relief. The application is made under s.25 of the Civil Jurisdiction and Judgments Act 1982, which itself gives effect to the provisions of Article 31 of Regulation 44/2001, the Regulation that implements to the Brussels and the Lugano Conventions.2 Section 25 of the 1982 Act gives the High Court in England jurisdiction and power to grant interim relief where (a) proceedings have been or are to be commenced in a Brussels or Lugano contracting State other than the United Kingdom; and (b) they are or will be proceedings whose subject matter is within the scope of the Regulation as determined by Article 1. 3 In s.25(2) there is also a provision that on an application for interim relief under sub-section (1) the court may refuse to grant that relief if in the opinion of the court the fact that the court has no jurisdiction apart from this section in relation to the subject matter of the proceedings in question makes it inexpedient for the court to grant it.4 The proceedings with which I am concerned on that ancillary basis is an action soon to be commenced in Holland in relation to a contract that was entered into on 1st January 2005 between the claimant company and the defendant, Mr. Rosicky, who is a footballer. He is a member of the Arsenal team. He joined the team in May 2006. Before that he played for Sparta Prague, and he is also currently the captain of the Czech national side.5 Under the terms of the contract with Nike, which ran for the period from 1st January 2005 to 31st December 2006, the defendant agreed, amongst other things, firstly, that during the contract period he would not enter into or maintain any endorsement, promotion, consulting or similar agreement with any person or entity that licenses, manufactures, brands or sells products as defined; and secondly, in clause (f) of the agreement, that he would wear and/or use exclusively Nike products in accordance with para.2 of the general terms. Nike products are defined in those terms in para. 1(g) as: ``All products in connection with which or upon which the Nike name, the swish design or the Nike air design, or any other trademarks or brands now or hereafter owned or controlled by Nike or any other member of Nike Group appear.'' ``Products'' means all athletic sports and sports or spinal derived footwear and clothing articles of an athletic, at leisure, active wear or casual nature, including but not limited to shirts, T-shirts, polo shirts, etc.6 The general conditions go on to provide in condition 2 that on each occasion that the player wears or uses products then he should ensure that each product is a Nike product.7 The contract, as I have mentioned, was granted for a period of two years, but was subject to various provisions in condition 8 of the general terms and conditions, including in particular in condition 8(a) the benefit of an option in favour of Nike under which it was entitled to extend the contract period for an additional period of two years - that is to say from 1st January 2007 through to 31st December 2008, exercisable ``upon written notice of such election given to player no later than 30th September 2006''.8 I should also mention for completeness that in condition 8(c) there is what is described as a right of or first refusal in favour of Nike for a period of 180 days after the end of the initial contract period. The gist of that provision is that if the player should within that period receive a bona fide third party offer with respect to any endorsements or services from some similar would-be sponsor then the player is under a duty to submit that offer to Nike in writing, and if Nike - and this is my paraphrase - is prepared to match the offer then the player is under an obligation to enter into a new contact with Nike on those terms in preference to those offered by the other third party.9 There has been some discussion on behalf of the claimant about whether or not the defendant acted in good faith in operating those provisions, but because there is no evidence about that I do not intend to base the decision on this application in relation to that part of the contract. 10 So far as this application is concerned, the claimant bases its application on the premise that it did give written notice extending the contract period prior to 30th September 2006. So far as I can see, that seems to be the sole issue between the parties. The question of whether or not there is still a subsisting contractual relationship between the parties turns on that.11 The Nike contract of 1st January 2005 is, according to clause (h) of the contract, subject to Dutch law and to the jurisdiction of the competent courts of Amsterdam in the Netherlands. I have got the benefit of evidence from a Dutch lawyer, Mr. Alfred Paul Meijboom, which indicates that that would be interpreted by the Dutch court as giving to that court exclusive jurisdiction in relation to the substance of any dispute about the contract. On that footing the provisions of Article 23 of the Brussels Regulation applies so as to make the Dutch court the appropriate court in which to try the substantive proceedings and, by the same token, to oust the jurisdiction of the English court in relation to the self-same matters.12 Mr. Beloff on behalf of the defendant submitted that it was at least open to argument on his reading of Mr. Meijboom's evidence that the proper construction of clause (h) of the contract according to Dutch law might be not merely that the agreement gave the Dutch court in Amsterdam exclusive jurisdiction to try any contractual dispute, but also conferred exclusive jurisdiction on that court in relation to the grant of any interlocutory or ancillary relief. The relevance of that point is that there is at least an argument that the power of the English court under Article 31, and therefore under s.25 of the 1982 Act, would be ousted were the parties to have conferred exclusive jurisdiction on the relevant foreign court not only in relation to the substantive dispute, but also in relation to the grant of any ancillary relief.13 In this particular case, although ultimately this is a matter for the court in Amsterdam, there is certainly no clear indication in the wording of clause (h) that that is what the contract ought to be interpreted to mean; nor I think on a fair reading of Mr. Meijboom's evidence is that what he suggests. There is no evidence of an expert nature put in on behalf of the defendant on this application and in those circumstances it seems to me that the correct way in which I ought to proceed is that the terms of the contract do not in any sense oust the jurisdiction of this court to consider an application under the provisions of Article 31.14 The issue therefore for me is whether or not I ought to grant an interlocutory injunction today over the hearing of an application for similar relief in Amsterdam, the effect of which would be to prevent Mr. Rosicky from wearing Puma marked boots pursuant to the terms of a new contract which he entered into on 5th July this year with that manufacturer.15 The evidence is that from about January of this year there was clearly some kind of dispute between the parties as to whether or not Nike had validly extended the term of its contract by exercising the option. This, as I have indicated, turns on whether or not the option notice in accordance with the provisions of condition 8(a) was served or given to the defendant.16 It is clear that towards the middle of 2006 the parties did enter into some sort of correspondence or...

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