Enforcing foreign judgments in Israel.
The scenario is all too familiar. A plaintiff prevails in a civil action against a foreign defendant, who has no assets in the plaintiff’s home state. The judgment has to be enforced in a foreign jurisdiction, where it will be subject to that state’s statutes dealing with enforcement of foreign judgments.
The legal theory
Israel deals with foreign judgments and the requirements, both procedural and substantive, to enforce them, in a concise statute entitled the Foreign Judgments Enforcement Law (5718-1958).
While the statute is generally straight forward enough, one crucial section has a measure of opacity. Section 3 of the statue sets forth the elements that must be established for a court to deem a foreign judgment enforceable in Israel. The court must be convinced that the foreign judgment: 1. Was issued by a court of competent jurisdiction to issue the judgment; 2. Is not subject to further appeals in the jurisdiction where it was granted; 3. The obligation imposed by the foreign judgment is enforceable under the judgment enforcement rules in Israel and the content of the foreign judgment does not contradict Israel's public policy; and 4. The judgment can legally be executed upon in the jurisdiction where it was granted.
The statute however does not provide how those elements are to be established.
Professor Cilia Wasserstein Fassberg, in her book, Foreign Judgments in Israeli Law- the Law and its Logic, states that the elements to be proven are elements of foreign law. Hence it is incumbent upon the party seeking enforcement of the foreign judgment to establish, to the court’s satisfaction, elements of foreign law, upon which the Israeli court can act.
Proving elements of foreign law in Israel has a well-developed history of legal interpretation. The seminal scholarship in this area was authored by Professor Menashe Shawe in a 1974 article entitled The Nature and Method of Proving Foreign Law in Anglo-American Jurisprudence and in Israeli Law, which summarized the English and American approaches to the subject and reviewed the Israeli case law to date on the matter. It is cited in virtually all cases addressing this issue.
Based on a review of the Israeli case law, Professor Shawe concludes that questions of foreign law in Israel are not legal questions, but rather factual issues, subject to proof via the rules of evidence and accepted practices before the courts. He specifically rejects the idea that Israeli judges can or should investigate such questions themselves and resolve what the foreign law is. Rather, it is for the proponent of the foreign law to “prove” it to the satisfaction of the Israeli court. For American attorneys, this is a departure from the Federal Rules of Civil Procedure which direct federal courts to treat issue of foreign law as questions of law and not fact, thus opening the door for federal judges to do their own independent research on issues of foreign law. Professor Shawe ultimately recommends that foreign law be proven via expert testimony. And had become the standard practice.
Shawe states that an expert can be an attorney or judge, or other jurist, or even a lay person whose professional activities requires him to be familiar with the relevant foreign law. Shawe cites a number of decisions from the Israeli courts that seem to conclude that legal professionals are the preferred, perhaps the only recognizable experts on issues of foreign law. Moreover, such legal professionals need to have professional experience in the specific area of law under question.
The upshot of this discussion is that the generally accepted way to meet the statutory burden under Section 3 of Foreign Judgments Enforcement Law (5718-1958), is to submit an affidavit or expert opinion of an attorney admitted to the practice in the foreign jurisdiction as part of the application to enforce the foreign judgment.
One interesting point about American attorneys in Israel. As is well known, each of the United States’ fifty states has its own criteria for admission to the practice of law. In America, an attorney licensed in one state is not automatically able to practice in another state. An attorney must be separately admitted to bar of each state in which s/he seeks to practice law. That notwithstanding, Israeli courts recognize American attorneys admitted in one state as competent to offer expert testimony about legal issues in all the United States. See, for example, Fam Ct-Tel Aviv 66986-12-14 Anonymous v. Anonymous.
What's a judgment holder to do?
Someone who needs to enforce a foreign judgment in Israel, is in a fortunate position. The procedure for enforcing a foreign judgment is straightforward and set forth in Sections 352-358 of Civil Procedure Regulations. The following is a brief description of what has to be done:
- Applications for enforce foreign judgments must be made in writing and submitted to the appropriate Israeli court.
- The application must be accompanied by a certified copy of the foreign judgment.
- The application must be accompanied by an affidavit setting for the factual circumstances that led to the granting of the foreign judgment
- The foreign judgment must also be translated into Hebrew, upon the request of the Israeli court. The translation shall be certified by the consular officer of the country where the judgment was issued, or in a alternate matter to the court’s satisfaction.
Upon submission of the application to enforce the foreign judgment, the statute sets forth the time requirements for any opposition to the application, and for the issuance of a decision of the Israeli court.
In conclusion, enforcement of foreign judgments in Israel is generally a straightforward process, in terms of establishing the enforceability of a foreign judgment. It is crucial however, to present the court with proper expert testimony on that issue.
Must-know, Hebrew legal terms and transliterations
|Judgment||פסק דין||Psak Din|
|Foreign law||דין הזר||Din Ha'zar|
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