A choice of forum clause will generally not be enforced against
a non-party to the contract containing the clause, the Ontario
Court of Appeal held in a recent decision arising in the context of credit card
payment systems.
Aldo (a shoe retailer) sued
MasterCard International in tort to recover US$4.87 million
that was debited by its payment processor, Moneris, to reimburse
certain banks for assessments made by
MasterCard International.
MasterCard made the assessments after taking the position that
Aldo was responsible for a cybercrime attack on its systems because
it failed to comply with its data security obligations. Aldo also
sued Moneris.
MasterCard International moved for a stay of the action, arguing
that the choice of law and forum clause in its licence agreements
with the relevant acquiring banks, Bank of Montreal and its
subsidiary Harris. That clause invoked the laws and exclusive
jurisdiction of the State of New York.
