Abstract
The application of foreign law by a national court, for whatever reason, is a challenging endeavor. The court is required to decide legal issues as if it were a court of the foreign state. Yet, a national judge can neither be expected nor required to be familiar with the foreign legal system as he is with his own. If the application of foreign law is not to be invariably frustrated, then such application should only be conditioned upon the judge acquiring reasonable understanding of the solution which that foreign system might have for the problem at hand.
The paper analyzes critically the rules prevailing in Israel at present, concluding that the present situation, concerning the ascertainment and proof of foreign law, is confusing and expensive, and hence burdensome to both the parties and the courts. It proposes a reform of the Israeli law rules, pointing out however that the only way to cope well with the ever growing need to apply foreign law requires a special kind of legal education. Top students should be encouraged to learn foreign languages and specialize in at least one major foreign legal system in that foreign country. Comparative law courses, in which the differences and similarities between the approaches of legal systems to the solution of similar problems are critically analyzed, should play an important role in legal education. In each country, at least one university library should hold foreign legal texts – statutes, commentaries and textbooks, in the respective foreign languages. Even if those are made available on electronic databases in the future, access to these databases will still require an investment of substantial resources. In the author’s opinion there can be no substitution to expertise, earned through intensive hard work, in short a challenge for long distance runners.
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Notes
- 1.
Attorney General – the Administrator General v. Plonit, Application Family Appeal 594/04, 59(3) PD 297 (29 November 2004). In one case, Nafisi v. Nafisi, Further Hearing 1558/94, 50(3) PD 573 (25 August 1996), Justice Barak suggested that §15, Spouses (Property Relations) Law, 5733-1973, being a choice-of-law rule, is just a dispositive rule, which only applies if the parties did not make may an agreement that provides otherwise. This statement has been correctly criticized and cannot be taken as reflecting properly Israeli law. Celia Wasserstein Fassberg, “Law and Justice in Choice of Law: Matrimonial Property after Nafisi v. Nafisi”, Mishpatim 31 (2000): 97 (in Hebrew); Rhona Schuz, “Choice of Law in Relation to Matrimonial Property: the Existing Law and Proposals for Reform”, Bar-Ilan Law Studies 16 (2001): 425 (in Hebrew).
- 2.
Hess Form Licht Company v. Handasat Hashmal Kelalit, Application Permission to Appeal 3924/01, tak-Supreme 2002(1), 268 (10 February 2002). Both the District Court and the Supreme Court held that, since the presumption of similarity of the foreign law and Israeli law could not hold in this case (a contract in which German law was stipulated as the applicable law chosen by the parties), the claim could be dismissed if the foreign law was not proved to the satisfaction of the Court. A similar decision was reached by the American Court in Walton v. Arabian American Oil Co., 233 F. 2d 541 (2d Cir. 1956). That case is no longer a leading case, if it ever was. Although possible in theory, a court would rarely dismiss a claim because the applicable foreign law has not been proved.
- 3.
Cf. Shava, “The Presumption of Similarity of Laws”, Iyyunei Mishpat 4 (1975): 583 (in Hebrew), at 588. To be sure, there are also cases in which the courts applied Israeli law as soon as the foreign law was not pleaded or proved with sufficient clarity by the parties – see, e.g., Trade House Progress v. Kevutzat Hai-El Sachar Benleumi, CC (Tel-Aviv) 103462/97, tak-Magistrate 2001(3), 870 (22 October 2001).
- 4.
Cf. Menashe Shava, ibid. Admittedly, Shava had in mind mainly questions of status when he suggested these three preconditions, ibid., 590. However, in practice, judges often cite these conditions indiscriminately, also in cases involving contracts, especially labour contracts, torts, property law, succession, etc.
- 5.
However, the court may rely on mere allegations made by the plaintiff in his statement of claim as to the contents of that law, as soon as those were not contradicted by the defendant – cf. Rabintex v. Halima, Case (Israel National Labour Court) 57/71–3, tak-National 98, 2463 (10 August 1998). The court stated that, in fact, there is no better proof of the foreign applicable law; In another case, the court accepted a decision made by an Italian court between the same parties as sufficient proof of the applicable Italian law – cf. X v. Y, Family Case (Tel-Aviv) 5062/97, tak-Family 97(1) 17, 23 (9 March 1997).
- 6.
For example, §14 of the Appendix to The Hague Convention (Return of Abducted Children) Law, 5791-1991, authorizes, in conformity with the wording of the Convention, the judicial and administrative authorities, in ascertaining whether there has been a wrongful removal or retention, to take notice directly of the law of, and of judicial or administrative decisions, formally recognized or not, in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable – cf. para. II(C) infra.
- 7.
Indeed, in a recent case, the Haifa District Court held that, since English law, which should have governed the contractual obligation that was the subject-matter of the dispute, has not been proved, it will apply Israeli law. The Court made no reference, it is submitted correctly, to the presumption of identity of laws – cf. Vitol Energy SA v. Trans KA Tankers Management Co. Ltd., CC (District Court, Haifa) 197/07, Nevo electronic database (29 August 2011). Cf., similarly, Sussman’s Civil Procedure, 7th ed. (Shlomo Levin [ed.]) (Jerusalem: Israeli Company for Professional Training, 1995) (in Hebrew), §112, who writes in his authoritative treatise that, if a party did not plead and prove the contents of the applicable foreign law, the judge will decide the case according to Israeli law. No reference is made to the presumption of identity of laws.
- 8.
On this point see further Peter Nygh, Autonomy in International Contracts (Oxford: Oxford University Press, 1999) 226, 232–233; and, in a general context, Kurt Siehr, “Die Parteiautonomie im Internationalen Privatrecht”, in: Festschrift für Max Keller (Zürich, 1989) 485–510.
- 9.
Nafisi v. Nafisi, Further Hearing 1558/94, 50(3) PD 573 (25 August 1996), 584–585. In other cases, the court had no trouble in applying Israeli law to cases in matters of succession – see, for example, Estate of Forugi and Kleinberg v. Estate of Koren and Eliahu Insurance Co., CC (Jerusalem) 1296/99, tak-District 2000 (4), 1304 (17 December 2000).
- 10.
Chiadri v. Chiadri, CC (Tel-Aviv) 713/92, tak-District 93(1), 346 (23 March 1993).
- 11.
X and 4 minor children v. Y., Family Case (Tel-Aviv) 63880/98, tak-Family 2000(2), 286 (11 June 2000). Under Israeli law, Jewish law determines the duty to make such payments regarding the Jewish population. The court held that it cannot be presumed that such a rule applies also in legal systems other than Jewish law.
- 12.
Kimron v. Hershel Shanks, Eisenman, and the Biblical Archaeological Society, CC (Jerusalem) 41/92 [5753-1993(3)] PsM 10 (30 march 1993).
- 13.
On appeal, the Supreme Court held that, according to the pertinent rules of Israeli private international law, Israeli law, rather than American law, applied – cf. Eisenman, Robert E., Hershel Shanks and BAR (Biblical Archaeological Review) v. Kimron, CA 2790/93, 54(3) PD 817 (30 August 2000).
- 14.
Mahmud Hamis v. David Bernard, Case (Jerusalem Labor Court) 51/570–3, tak-Labor 95(1), 16 (6 February 1995).
- 15.
Those include the Eastern (Orthodox), Latin (Catholic), Gregorian Armenian, Armenian (Catholic), Syrian (Catholic), Chaldean (Uniate), Greek-Catholic – Melkite, Maronite, Syrian (Orthodox), the Druze (since 1957), Episcopal Evangelical (since 1970) and Baha’i (since 1971). Other religious laws of which the Israeli Courts have judicial notice are Jewish Law (halakha) and Muslim Law (shari’a).
- 16.
Cf., e.g., A.B. v. M.B., CC (Tel-Aviv) 778/50, 876/50, 3 PsM 263 (6 April 1951), at 287, per Judge Zeltner, and in re Testament of the deceased Michael Polak and re Ginsburg v. Eugenia Polak and Leib Bulein, Succession Case (Tel Aviv) 115/54, 12 PsM, 129 (31 May 1956); Minor v. Ploni, Family Case (Tel Aviv) 67250/00, tak-Family 2001(1), 112 (25 February 2001). Cf., also, the decision of President Landoi in Dorit Bloch and Anton Wilhelm Bloch v. The Attorney General, Application for Dissolution of Marriage 8/81, 35(4) PD 449 (5 October 1981) – in reaching a conclusion on the basis of Canon Law, President Landoi considered an expert opinion and finally accepted the expert’s conclusions, after checking directly commentaries and literature on the subject, underlining that the Canon Law is within the Court’s judicial notice; cf., Izhak Englard, Religious law in the Israel Legal System (Jerusalem: Sacher Institute, Hebrew University Faculty of Law, 1975) (in Hebrew) 88 ff.
- 17.
Cf., e.g., the application ex officio in maintenance cases of the Byzantine Family Law with respect to matters of the Eastern Orthodox Church by Israeli secular courts – Estate of Asa’ad Kalil Ayub Al-Wil Za’athra, Succession Case (District Court, Haifa) 178/55, Nevo electronic database (27 June 1968); A.L. v. A.I., Various Civil Applications (Family Court, Krayot) 1417/08, Nevo electronic database (4 June 2008); Plonit v. Ploni, Family Case (Tel-Aviv) 35053/04, Nevo electronic database (3 March 2005). The Byzantine Family Law was also applied to members of the Copt Orthodox Church, L. v. H., Family Case (Nazareth) 32231-01-10, Nevo electronic database (19 December 2010); The Eastern-Catholic Code was applied to Greek-Catholic maintenance claims by the Family Court ex officio in, e.g., ‘A.K.S. v. ‘A.V.N., Family Case (Nazareth) 10211/06, Nevo electronic database (10 January 2011), and D.P. v. ‘A.P., Family Case (Tiberias) 55922-10-10, Nevo electronic database (27 February 2011); The Druze Personal Status Law was applied ex officio, e.g., by the District Court in Jamilla Sallah Shwach v. Nuaf Muhamad Halabi, Maintenance Case (District Court, Haifa) 54/69, 73 PsM 58 (20 November 1970); the Personal Status Law of the Roman Catholic religion, published by the Latin Patriarch in Jerusalem, was applied by the District Court in Lily Habra v. Anton Habra, Personal Status Case (District Court, Tel-Aviv) 839/67, 63 PsM 183 (28 May 1968).
- 18.
A commentary that provides insight into the family laws of the various religions, including, among others, the Roman Catholic Church and the new Codex Iuris Canonici, in effect since 27 November 1983; the Eastern Catholic Churches (Greek Catholics – Melkites, Armenian (Catholic), Syrian (Catholic) included); and the various Orthodox denominations (including the Armenian Orthodox (Gregorian), Chaldean (Uniate), Copt Orthodox, Eastern Orthodox, Greek Orthodox), is to be found in Josef Prader, “Die religiösen Eherecte”, in: Bergmann/ Ferid, Internationales Ehe- und Kindschaftsrecht (Frankfurt a.M.: Verlag für Standesamtswesen, looseleaf, contribution last updated 1992).
- 19.
The Druze Personal Law has been reproduced in Arabic and in Hebrew in Nissim Dana (ed.), The Druze (Ramat Gan: Bar-Ilan University Press, 1998) (in Hebrew), Annex A, pp. 225–277. The law is essentially based on the Lebanese Druze Personal Status Law, with a couple of important changes introduced by the Druze Community in Israel.
- 20.
Cf., e.g., the Protocol of the Knesset Constitution, Law and Justice Committee, regarding amendment No. 18 (concerning the competence of a Qadi Madhab) of the Druze Religious Courts Law (Protocol No. 352, Committee session of 28 February 2011), in which the secrecy of the Druze religion is discussed. As it turns out, even lawyers who appear before the Druze Religious Court do not know the law, as interpreted by the Druze Religious Courts, since they have no access to all of its sources, and cannot rely on such sources – ibid.
<http://www.knesset.gov.il/protocols/heb_search.aspx?ComId=6>
- 21.
Sussman’s Civil Procedure, supra n. 7, §268; cf. further references in this matter, Talia Einhorn, Private International Law in Israel, 2nd ed. (Kluwer Law International 2012), para. 536, fn 537.
- 22.
Cf., e.g., Ploni v. Almonit, Family Case (District Court, Tel Aviv) 5062/97, Nevo electronic database (9 March 1997), per Judge Gaifman; Almonit v. Ploni, Family Court Case (Tel Aviv) 57489-07-13, Nevo electronic database (2 April 2012), per Judge Schneller; cf. Gali (Pollack) Ron, Family Courts in Light of Case Law (Tel Aviv: Israel Bar Association, 2009) (in Hebrew), pp. 287 f., with further references to case law.
- 23.
Sussman’s Civil Procedure, supra n. 7, §112, at p. 137 and §302, at p. 377, with further references to Israeli case law.
- 24.
Cf. Rabintex v. Halima, Case (Israel National Labor Court) 57/71-3, tak-National 98, 2463 (10 August 1998). The Court stated that, in fact, there is no better proof of the foreign applicable law.
- 25.
Cf. X v. Y, Family Case (Tel Aviv) 5062/97, tak-Family 97(1) 17, 23.
- 26.
Sussman’s Civil Procedure, supra n. 7, §112, at p. 137.
- 27.
Hess Form Licht Company v. Handasat Hashmal Kelalit, Application Permission to Appeal 3924/01, tak-Supreme 2002(1), 268 (10 February 2002).
- 28.
Cf. the criticism of such dismissal in para. II(A) supra.
- 29.
Uri Goren, Issues in Civil Procedure, 12th ed. (Tel Aviv: Syaga, 2015) (in Hebrew), p. 448 f.
- 30.
Cf., e.g., Berg Yaakov & Sons Ltd. v. Berg East Imports, CA 6796/97, 54(1) PD 687.
- 31.
Cf., e.g., Stanislava Stolovich v. The Organization for the Implementation of the Social Security Treaty Israel – West Germany, CA (District Court, Tel Aviv) 3203/02, Nevo electronic database (10 July 2005).
- 32.
Cf., e.g., Hannah Nava v. Talia and Chaim Sardes, CA (District Court, Tel Aviv) 3203/02, Nevo electronic database (31 March 2010).
- 33.
Hannah Nava v. Talia and Chaim Sardes, ibid.
- 34.
Cf., e.g., Warner Bros. International Television Distribution, a Division of Time Warner Entertainment Co., LP v. Zvi Yochman, CPA, as trustee, and Tevel Ltd., Insolvency Proceedings (District Court, Tel Aviv) 1361/02, Various Civil Applications 3896/04, Nevo electronic database (1 September 2004).
- 35.
Cf., e.g., Gazprom Transgaz Ukhta Ltd. v. Double Kay Petroleum Products 1996 Ltd., Originating Summons (District Court, Tel Aviv) 30752-05-11, Nevo electronic database (19 March 2012).
- 36.
Cf., e.g., Richard Virus v. Nicole Libuton, Civil Appeal (District Court, Central District) 51367-05-12, Nevo electronic database (28 October 2012).
- 37.
Dori & Tschaikowsky v. Shamai Goldstein, Application Permission to Appeal 3810/06, tak-Supreme 2007(3), 4667 (24 September 2007). Cf., further, regarding the reasons given for this decision, as well as other ones, Einhorn, Private International Law in Israel, supra n. 21, paras. 1229 f.; cf. also Goren, Issues in Civil Procedure, supra n. 29, pp. 557 f.
- 38.
Ploni v. Almonit, Family Case (Tel-Aviv) 45419-05-10, Nevo electronic database (27 March 2012), per Judge Naftali Shilo.
- 39.
More information regarding this procedure is available on the Supreme Court webpage
http://elyon1.court.gov.il/eng/Clerking_opportunities/index.html
- 40.
Cf. Adam M. Dodek, “The Charter…in the Holy Land?” FORUM Constitutionnel (1996) 8:1, critically analyzing the application of the Canadian Charter of Rights and Freedoms by the Israeli Supreme Court; Philipp Stricharz, “Foreign Clerks at the Supreme Court of Israel”, JA [Juristische Arbeisblätter] 2004/6, pp. IV-VI; regarding the problematic application of foreign law, and comparative legal research, carried out in the fields of private international law and unjustified enrichment, cf., e.g., Einhorn, Private International Law in Israel, supra n. 21, paras. 269–280 (rejection by the Supreme Court of the common domicile exception in traffic accidents); Talia Einhorn, “The Expansion of Israeli Unjust Enrichment Law: the Mixed Blessings of a Mixed Legal System”, in: Aufbruch nach Europa: 75 Jahre Max Planck Institut für Privatrecht (Basedow et al. [eds.]) (Mohr Siebeck 2011), pp. 905–922.
- 41.
In this context, a judgment means a court decision that ends the court proceedings with respect to a certain issue, even if it is only a partial judgment of the case, which does not settle all matters definitively, and even if it only brings a formal end to the proceedings without deciding the rights and obligations of either party, e.g., a decision to dismiss a case without prejudice.
- 42.
Cf., e.g., Skaler v. Yuviner, Further Hearing 4655/09, tak-Supreme 2011(4), 647 (25 October 2011). The case concerned two Israelis, one of whom drove a car and the other – a passenger in that car, who had a traffic accident in New Zealand. In its further hearing, the Supreme Court held, by a majority of 5 to 2, that the common domicile exception did not apply in Israel, and that the law of New Zealand should apply to that case. Cf., further, on this case, Einhorn, Private International Law in Israel, supra n. 21, paras. 269–280; The conflict rules regarding marital property were also the subject-matter of a further hearing – Victoria Nafisi v. Simantov Nafisi, Further Hearing 1558/94, 50(3) PD 573 (25 August 1996). Cf. Einhorn, ibid., para. 699.
- 43.
Sussman’s Civil Procedure, supra n. 7, §316, at p. 393, referring to Compagnie française de participation v. Shmuel Flatto Sharon, CA 556, 557/84, 40(2) PD 298. In this case, the claim was dismissed in limine by the District Court. However, according to an expert opinion, that was first presented on appeal to the Supreme Court, the claim should not have been dismissed under the foreign applicable law.
- 44.
Cf. Rule 14, Israeli Arbitration Rules, included in Annex II, Arbitration Law, 5728-1968.
- 45.
There is no international treaty harmonizing the grounds for setting aside arbitral awards (Art. 1, New York Convention, harmonizes only the grounds for challenging recognition and enforcement of foreign arbitral awards). None the less, in most states today, setting aside implies a limited review – cf. Tibor Várady et al., International Commercial Arbitration – A Transnational Perspective, 6th ed. (West, 2015), p. 954, and pp. 985 ff.
- 46.
Cf. Einhorn, Private International Law in Israel, supra n. 21, paras. 1422–1427.
- 47.
If not stated clearly, or not clear in the circumstances, this will be a matter of interpretation.
- 48.
Cf. UNIDROIT Principles of International Commercial Contracts (Rome: UNIDROIT 2010) http://www.unidroit.org/english/principles/contracts/principles2010/integralversionprinciples2010-e.pdf
- 49.
Cf. Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, revised ed. (The Hague: Kluwer Law International 2000–2003).
- 50.
Such a rule conforms to Israeli law principles governing choice of law rules in general.
- 51.
Cf., in general, Giuditta Cordero Moss, International Commercial Arbitration – Party Autonomy and Mandatory Rules (Oslo: Tano Aschehoug 1999).
- 52.
Cf., further, Einhorn, Private International Law in Israel, supra n. 21, paras. 1428 ff.
- 53.
See list of Network members at <https://assets.hcch.net/docs/18eb8d6c-593b-4996-9c5c-19e4590ac66d.pdf>. In 2013, the Hague Conference published a brochure, entitled Direct Judicial Communications - Emerging Guidance regarding the development of the International Hague Network of Judges and General Principles for Judicial Communications, accessible at <https://www.hcch.net/en/publications-and-studies/details4/?pid=6024&dtid=3>
- 54.
On 3 December 2013 Justice Hendel kindly answered the author’s questions regarding his role as liaison judge.
- 55.
Hoole v. Hoole, [2008] BCSC 1248. In British Columbia there were guidelines applicable to court to court communications in cross-border cases, approved by BC Supreme Court, regarding the conduct of such joint hearings, that ensured fair hearing to all parties involved; cf. the comments and further references to the use made of the Hague Judicial Network, by the Honorable Justice Robyn Moglove Diamond, of the Court of Queen’s Bench, Family Division, Winnipeg, Manitoba, Canada, at the conference on “International Judicial Initiatives Dealing with Cross Border Child Protection”, 6th World Congress on Family Law and Children’s Rights, Sydney, Australia (March 17–20, 2013), paper dated December 2012.
- 56.
Cf. the pertinent criticism of Re E (Children), [2011] UKSC 27, by Schuz, The Hague Child Abduction Convention, ibid., at pp. 296–298. In that case, the English judge at the court of first instance sought information from the Norwegian international liaison judge. The Norwegian judge provided only a partial answer, and the English judge noted that it was fairly clear that the Norwegian judge did not understand his question. Thorpe, LJ, in charge of international judicial communications in the UK, was not prepared to seek clarification from “a no doubt very busy judge”. Schuz considers the failure to seek such clarification as indicating the limits to the usefulness of this mechanism, since partial information may be misleading or even worse than no information at all.
- 57.
In one Israeli case, Ploni v. Almoni, Attorney at Law, Originating Summons 4576-09-11, Nevo electronic database (14 May 2012), the Israeli District Court concluded that the plaintiff, who had signed a letter dismissing his Israeli attorney, was in bad faith, and consequently dismissed his claim, simply because the Court had misunderstood the difference between the competence of a person to whom a Betreuer, or custodian, had been appointed under German law, and the competence of a person to whom a guardian had been appointed under Israeli law. The appointment of a Betreuer does not render the person legally incompetent, as is the case when a guardian is appointed under Israeli law. It only means that henceforth his acts require his custodian’s approval. Consequently, since the plaintiff had his custodian’s consent, he could lawfully perform legal acts. Unfortunately, the parties and, consequently the Court, too, were not aware of this important difference between the legal systems; cf. also the example brought by Rhona Schuz, The Hague Child Abduction Convention (Hart, 2013), at p. 156, referring to a decision of the US District Court for the Eastern District of Michigan – Tsimhoni v. Eibschitz-Tsimhoni (Unreported, 26 March 2010), in which the US Court held that the children had not become “habitually resident” in Israel during their 3-month stay there, immediately before their removal from Israel. In doing so, the US Court gave no weight to the finding in the Israeli Court’s declaration, made under Art. 15, Hague Child Abduction Convention, that they had done so – Ts.L. v. E-Ts.M., Family Case (Kfar Saba) 29189-12-09, Nevo electronic database (23 December 2009). Schuz submits that Art. 15 declarations should be considered binding, unless they are clearly out of line with the autonomous interpretation of the Convention, none the less concedes that the question of the child’s habitual residence prior to removal has to be determined by the courts of the requested state, in this case the US court, not the Israeli court.
- 58.
Cf. the comparative study in B. v. Dentists’ Disciplinary Tribunal, [1994] NZLR 95 (High Court Auckland) (27 May 1993), noting the acceptance of video linking and conferencing in Australia, Canada, England and the US; cf. also Cross and Tapper on Evidence, 11th ed., Colin Tapper (ed.) (Oxford: Oxford University Press 2007), p. 61. Regarding the situation under Israeli law, cf. the criticism of Yehiel Shamir, “Taking Evidence via Video Conference in International Litigation”, Hamishpat 8 (2003): 595 (in Hebrew).
- 59.
Cf. the English CPR, Practice Direction 32, para. 29.1, Annex 3.
- 60.
Cf. Kurt Siehr, “Teaching Comparative Law and Comparative Law Teaching”, Swiss Reports Presented at the XVth International Congress of Comparative Law (2002): 139, 139–141.
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Einhorn, T. (2017). Israel: Proof of and Information About Foreign Law in Israel. In: Nishitani, Y. (eds) Treatment of Foreign Law - Dynamics towards Convergence?. Ius Comparatum - Global Studies in Comparative Law, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-56574-3_28
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