When the claim is not under the contract.
The Ontario Court of Appeal has held that a clause in an agreement giving the Cayman Islands exclusive jurisdiction did not apply because the claim was not against parties to the agreement or within the clause: W&W Fiberglass Tank Co. Profit Sharing Plan v Bartholomew [2017] FICR 5.
A party to an agreement sued two individuals who were not party to the agreement for misappropriating funds intended for a corporate party to the agreement. The plaintiff sought summary judgment which was rejected on the basis of a clause which gave the the Cayman Islands exclusive jurisdiction for "any action or proceeding arising, directly, indirectly, or otherwise, in connection with, out of, related to, or from, this Application Form for Subscription or the purchase of the Participating Shares, or any transaction covered hereby".
The Court of Appeal held at [7] that the exclusive jurisdiction clause did not apply because the defendants were not party to the agreement and the claim was not within the terms of the clause. The claim was for breach of fiduciary duty and for an accounting, not for breach of the agreement to which the defendants were not party.
