Future Investments SA v Federation International De Football Association [2010] EWHC 1019 (CH)

This recent case, which involved a dispute over FIFA’s rights to produce video and DVD footage of the 1998 world cup, involved a jurisdiction challenge by FIFA that the claim should not be brought in the English courts. The Court upheld the challenge and struck the claim out.

The facts

Future acquired rights to the footage by way of way a series of agreements that were subject to the laws of Switzerland. Future alleged that FIFA had infringed those rights by providing a license to IMG Media Limited to sell the DVD containing 1998 world cup coverage and that IMG should have obtained a licence from Future. Future’s cause of action, it claimed, was against FIFA under the tort of causing damage by unlawful means and the Court was required to make a ruling on whether it had jurisdiction under article 5(3) of the Lugano Convention.

The decision

Mr Justice Floyd accepted FIFA’s submissions that the English Court’s did not have jurisdiction. He gave the following reasons:

– The ‘harmful event’ had not occurred in England but in Switzerland because, applying Article 5(3), FIFA signed the agreement with IMG in Switzerland, the effect of which was to interfere with IMG’s freedom to deal with Future because of FIFA’s agreement of a license with IMG, and the existence of a warranty in that agreement which meant that IMG believed it did not need to apply to Future for a licence;

– The damage which Future alleged was caused related to the reduction of its licensing revenue flowing from IMG not being aware of any requirement to deal with future. This damage was therefore caused where the license agreement between Future and IMG would have been signed, which the Court ruled would have been in Switzerland.

Comment

The basic principle of the Lugano Convention is that the defendant is entitled to be sued in the Courts of the state in which he/she is domiciled. Claims brought in tort, however, provide the exception to this rule and the claimant has option of suing in the country where the harmful event took place.

Whilst this potentially bestows an advantage on the claimant, it will still need to persuade the court to accept jurisdiction on the evidence and this case demonstrates that this will be difficult to achieve if there is a dispute over where the damage occurred and the key contractual agreements are signed in a different country.

Andrew Nixon
Associate, Thomas Eggar