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1. This article will review the Israeli approach to various issues of law and jurisdiction in claims involving foreign elements, and the way the Israeli Courts deal with multi jurisdictional cases.
2. First we will deal with the mafterial law which will be applied by the Israeli Court in Tort and in Contracts, and then with procedure: Forum and Jurisdiction.
3. Tort
(a) Wrong committed outside of Israel
Where the claim filed in the Israeli court concerns a wrong committed outside of Israel - the Israeli court will apply the law which has the strongest linkage to the parties involved and to the other circumstances of the case.
- In C.A. 300/84 Abu Attiah v. Yussuf Arabtissi, 39(1), PDI 365, the Plaintiff was injured in a work accident in Ramallah, (where the Jordanian Law applies), and sued his employer and the employer's Israeli insurer in the District Court of Jerusalem.
The defendants requested the court to strike out the claim and the District Court accepted the motion.
The Supreme Court, in appeal, reviewed the principles relating to the law which should apply, and determined that the Jordanian law is the law to which most of the factors are connected - the residence of the parties, the place where the accident occurred and the expectation of the parties. The fact that an Israeli insurance branch of 'Prudential' was joined as a co-defendant, does not alter the conclusion that the relevant law is the Jordanian law.
The answer to the question: which law applied? will have an important bearing also on the issue of the 'Natural Forum' to hear the claim and, therefore, the Israeli court struck out the claim and referred plaintiff to the Ramallah court where he should file his claim.
(b) The law applicable to a wrong committed in Israel which involves foreign citizens
The court will apply the Israeli Law, however, special attention will be given to the fact that one of the parties (plaintiff or defendant) is a foreigner, for instance in respect of amounts awarded as damages and the yardsticks for calculation thereof.
(1) Quantum of Damage - C.A. 711,703, 702/87 The State of Israel v. John Cohen et al 48(2)PDI, 705
John Cohen, an American student came to Israel and went on a trip to the Golan Heights, where he was seriously injured while being led by a guide through a dangerous path.
The claim was for the loss of working ability. The Israeli Court held that in spite of the fact that the accident occurred in Israel, damages should be calculated based on the Standards applicable in the American Law (the boy's domicile).
The Israeli Court took into account that the Plaintiff intended to study law and become a lawyer. Therefore the damages for loss of future earnings were calculated based on a lawyer's income in the United States.
(2) Diplomatic Immunity
The Court will apply diplomatic immunity under the Vienna Convention on Diplomatic Relations 1961, if the defendant is a diplomat serving in Israel, and hence, bar a torteous claim filed against the diplomat by an Israeli Plaintiff.
C.A. (T.A.) 4289/98 Shalom Shlomit v. the State Attorney General and the Ambassador of Egypt in Israel, Tak. M.99(3),2.
A claim for assault and false detention filed by a belly dancer against an ambassador was barred as the defendant raised the defence of diplomatic immunity
The Court determined that the Israeli Law should be interpreted as being subject to the relevant convention, and although the Wrongs Ordinance does not include this defence amongst the defences listed therein, however the Court should apply the Vienna Convention and bar the claim.
However, not in every case the immunity for foreign diplomats was considered as relevant:
In C.A.7084/94 Her Majesty the Queen in Right of Canada v. Sheldon et al 51 (1) PDI 625, the court did not allow the defence of diplomatic immunity raised by the Canadian Embassy concerning a claim relating to a rental contract.
The court checked whether the State of Canada acted as a sovereign executing its governmental powers or as a private individual, and while it acted in the latter capacity, the 'State Immunity' was not applied.
Where a foreign citizen is involved in an accident in Israel, specific attention should be given to the specific provisions of the Road Accidents Victims Compenation Law.
The Road Accidents Victims' Compensation Law - 1975, creates an exclusive cause of action for the injured in a road accident who will not have any cause of action for bodily injury under the Civil Wrongs Ordinance unless the accident was caused intentionally by another person.
Special Rules relating to Road Accidents:
- No Fault system - no need to prove negligence as a cause for the injury;
- Limited indemnity - for pain and suffering and also standards
for computation of loss of earnings
- Payments on account - injured party entitled to periodical
on-account payments prior to the final judgement
- Duty of the driver to be insured
- The Road Accidents Victims' Compensation Fund
CONTRACTS
Choice of Law
The parties are free to agree upon the law which will govern the contract and any dispute thereunder.
D.N. 1558/94 Victoria Nafissi v. Simantov Nafissi 50(3) PDI 573 In the absence of an agreement, the court will apply the law to which most of the links lead.
Choice of Forum by Agreement
A contractual provision on choice of a foreign forum will be given effect by the Israeli Court subject to:
(a) Exclusivity of the chosen forum - the language chosen and the contract as a whole should reflect the intention that the Forum chosen is the exclusive Forum.
C.A. 8835/99 Interdeco Trade Company Ltd. v. Sulzer Bros. Ltd. (not yet published) 11.1.2001.
(b) Public policy considerations
D.N. 4/71 Dominion Insurance Co. Ltd. v. Greek South American Line Shipping Co. 25 (1) PDI, 575.
PROCEDURE
An Israeli Claim Against a Foreign Defendant
In order to summon a foreign defendant in a claim filed in Israel the court documents should be served to him, and through such service - the jurisdiction of the Israeli courts is imposed on him. The documents may be served in Israel if the foreign defendant is present in Israel (even for a short stay), or to his Israeli lawyer or to any person authorised by him to accept service on his behalf.
Moreover, the documents may be served, in claims involving business matters, to a director or a person authorised to manage the business, while conducting such business in Israel. Among these persons the court has approved that service may be made to a manager of a foreign reinsurance company while negotiating renewals with local insurers, captain of a vessel - who is considered to be the shipowner's authorised agent, and a storeowner selling goods manufactured by a foreign company where the former has the latter's name on its letterhead.
If the defendant is not present in Israel, (nor is his agent or representative) the Israeli plaintiff will have to obtain a leave to serve such defendant by an out of jurisdiction service. Leave to Serve Outside the Jurisdiction - is required under Regulation 500 of the Civil Procedure Regulations - 1984 where one of the ten requirements are met:
(1) defendant domiciled within Israel
(2) concerning real estate located within the country
(3) concerning a contract affecting real estate situated within the country
(4) to enforce, rescind or otherwise affect a contract, or for damages or other remedy in respect of the breach of a contract, being (in either case) a contract which:
(a) was made within the jurisdiction
(b) was made by or through an agent operating or domiciled in the country
(c) is by its express or implied terms governed by Israeli law
The contract is concluded where the offerer received the notice of acceptance.
Friedman & Cohen 'Contractors', Ch.1, p.209
(5) in respect of a breach committed within the country of a contract made inside or outside of the country
(6) for an injunction ordering the defendant to do or refrain from doing anything within the jurisdiction (whether or not damages are also claimed)
(7) on an act or omission committed within the jurisdiction.
This option applies to torteous claims - however, in negligence all the elements of this wrong should be committed in Israel - not only the occurrence of the damage.
C.A. 565/77 Mizrahi v. Nobel's Explosive Co. Ltd., PDI 115,32(2).
(8) for the enforcement of a foreign judgement or a foreign arbitration judgement
(8a) for an annulment of a foreign arbitration judgement which was given against an Israeli resident, if the court is convinced that there is no possibility that he will have a fair trial in the country in which and according to which law the judgement was given.
(9) under the Law of Dissolution of Marriage (Special Cases) - 1969.
(10) against a person outside the country who is a necessary or proper party to an action duly served against other persons within the country.
Subject to the discretion of the Court and provided that there is a 'good arguable case'.
OBJECTION TO ISRAELI JURISDICTION
ON A CLAIM AGAINST A FOREIGN CITIZEN
Objection to jurisdiction should be filed in court supported by a sworn statement on factual issues. The Israeli lawyer should be provided with a limited power of attorney for the sole purpose of objecting to the jurisdiction, otherwise he will be deemed as being authorised to accept service.
C.A. 33/87 David Ostfeld v. Moshe Behiri 44(3) PDI 221
FORUM NON CONVENIENS
The Israeli Court may stay the proceedings even if it has jurisdiction on the claim, if there is another forum which is the natural forum which should hear the claim.
(a) Stay - not only in cases of oppression or vexation and, hence, abuse of the legal proceedings, but whenever another Forum will do justice between the parties with less inconvenience and without harming a legitimate advantage of the claimant in the local court.
C.A. 2705/91 Ragech Salem v. The Electricity Co. East Jerusalem 48(1) PDI, 554
(b) However, only where the balance of the links tends significantly to the foreign forum - the court will stay the Israeli proceedings.
C.A.705/97 A. Sinai 1989 Ltd. v. The Lockformer Co. & Others 52(1) PDI, 109
LIS ALIBI PENDENS
Stay of the Israeli proceedings if other proceedings are held in the same matter between the same parties in a foreign court which is the natural forum.
However, in a bankruptcy case, where the debtor owned assets in Israel and most of the relevant links led to Israel, the Israeli court did not stay Israeli bankruptcy proceedings although such proceedings had previously been instigated in England, and were still pending.
Bnk. 113/99 (Jeru.) News Data COM Security Products Ltd. v. M. Cornellius Klinger (22.3.99) Dinim Dist. 32(4) 976
SECURITY FOR COSTS
A foreign citizen filing a claim in Israel may be required to secure defendant's costs in the event that the claim is dismissed, unless he is a citizen of a country which is a signatory to the Hague Convention on Civil Procedure -1905. The United Kingdom is a signatory to this convention.
L.A. 1155/00 Anika Jongo v. M.E.C.S. Manpower Engineering & Construction Co. Ltd. (Labour Court), 20.12.00, Tak. AR 2000(4), p.27.
ASSISTANCE IN ISRAEL FOR PROCEEDINGS HELD
IN ENGLAND AGAINST AN ISRAELI DEFENDANT
(1) Service of Judicial Documents
According to the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters - 1965, judicial documents may be served upon an Israeli defendant being a party to a claim filed in England.
Procedure
- An Order for service outside of the jurisdiction given by the English Court
- A request addressed to the Israeli Directorate of Court to serve the claim to the Israeli
defendant (Forms)
- An appointment by the Court's Directorate of an Israeli lawyer to serve the documents
to the defendant, and report on service to the Court Directorate.
Personal service of the Claim Form, Order, response pack, acknowledgment of service:
- The Court Directorate acknowledges the service as a proper service under the
Conventiofn, in a letter addressed to the English Court
(2) Attachments and temporary relief against Israeli defendant who is sued in a foreign arbitration
- Attachment order may be given by an Israeli court against a party to a foreign arbitration, according to a
specific provision in the Law of Arbitration - 1968.
R.C.A. 102/88 Silver Goose Delicatessen Ltd. V. Cent or S.A.R.L. 42(3) PDI, p.201 (31.8.88)
But in an ordinary legal claim tried in the English court, a request for temporary relief was denied by the Israeli court.
C.F. (Jer.) 1447/97 Mark Andre and others v. Peter Dale and others. Dinim Dist. 32(3) p. 494 (10.8.98).
(3) Restraining Order against instigation of claims abroad contrary to a Choice of Forum Agreement
Where the parties agreed in contract to refer all their disputes exclusively, to the Haifa Court, and that each of them will be abstained from filing a claim in any other court - the Israeli court issued a restraining order against one party not to carry on with a claim he had filed in the French court, contrary to his written undertaking. The court held that it should assist the parties to enforce and perform their respective obligations and, therefore, granted the order. 3-161/96 (Labour Court) Haifa Chemicals v. Ben Simon (not published) Tak-Ar 96(1), 23 (4) Taking of Evidence
The Israeli court may assist another contracting state to obtain evidence or to perform other judicial acts under the Convention On the Taking of Evidence Abroad in Civil or Commercial Matters - 1970.
Legal assistance is also the subject matter of a domestic Israeli Law;
'The Law for Legal Assistance Between States - 1998' for various judicial acts in both civil or criminal matters.
ENFORCEMENT OF A FOREIGN JUDGEMENT
The Israeli Law for Enforcement of Foreign Judgements - 1958.
Conditions For Enforcement:
- A judgment in civil mater (including award for damages in other
proceedings).
- Given by a competent court.
- Final - no longer subject to appeal
- Nature of obligation imposed is enforceable under Israeli Laws and
tenor thereof is not contrary to public policy. General Considerations
1. Reciprocity
2. Limitation period - 5 years.
3. In maintenance matters - also temporary judgment or decree are enforceable.
Defences:
1. Judgment obtained through deceit
2. No reasonable opportunity was afforded to defendant to defend and prove his case
3. Incompetent court according to rules of Private International Laws applying in Israel
4. Contrary to another valid judgement given in the same matter between same parties
5. The claim was filed in the foreign court while a claim was pending in Israel in the same matter and between the same parties.
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