The Jurisdiction(?) of the Israeli Court to Grant Provisional Relief, While the Main Action is Being Conducted in a Foreign Forum - Reconsidering the Ruth Case
49 Pages Posted: 11 Dec 2011
Date Written: December 10, 2011
This article, as its title implies, deals with the question of the jurisdiction of the Israeli court to grant provisional relief, while the main claim is being conducted or will be conducted before a foreign court. The article opens with a discussion about the lex lata in this regard, as determined by the Supreme Court, and pursuant to which the Israeli court lacks jurisdiction to accede to a motion for provisional relief, for so long as it is not filed within the framework of a main action that is also being conducted within Israel. The article impresses upon the latent difficulties of this case law, which does not give appropriate weight to the existence of foreign proceedings outside Israel (if not to say, completely disregards their existence). Later on, in view of the inexistence in Israeli case law of a proper discussion regarding the normative and theoretical framework underlying this issue, the article then moves to conduct such discussion, within the framework of which, inter alia, different policy considerations favouring and opposing the recognition of the aforesaid jurisdiction of the Israeli court are demonstrated. The conclusion of this discussion is that the lex lata is not the lex ferenda, and that the Supreme Court case law should be reconsidered, despite the difficulties that may arise following the imposition of jurisdiction on the Israeli court to grant provisional relief while the main action is not being conducted before it. The article seeks to propose how to deal with the difficulties mentioned above by adopting a three-stage outline for exercise of the jurisdiction and discretion of the Israeli court in this regard. Within the framework of this outline, it is suggested to create a new sub-doctrine of forum non conveniens. As part of the discussion in this proposed outline, a number of practical and theoretical issues that may arise at the time the court is requested to grant provisional relief in support of foreign proceedings will be considered. Incidentally, the outline as presented in the article even suggests a few alternative interpretations, which allow for the recognition of the jurisdiction of the Israel court already according to the legal situation as existing today, without any need for amending the legislation under discussion.
Note: Downloadable document is in Hebrew.
Keywords: provisional relief, interim relief, private international law, legal assistance, cross-border litigation, choice of law, comparative law, support for foreign proceedings
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