NOAM SCHREIBER, ESQ.
FOREIGN LAW IN DOMESTIC COURTS
For many people, litigation in courts means applying the law of the state where the court is located. Put more simply, when two people dispute a claim in a New York court, they will generally be applying New York law. However, this general rule has many exceptions. There are a multitude of circumstances when a different law -- i.e. a foreign law -- will be applied to the case. For example, if the dispute involves a contract and the contract specifically provides for a foreign law to apply, the foreign law will, as a general matter, apply. Thus, going back to our example, if the two individuals disputing a contract in New York specifically undertook in their contract to apply Israeli law, then Israeli law would apply in determining the merits of the case. This is just one example of when a foreign set of laws may apply to an otherwise local dispute.
Litigating foreign law in Israeli courts is becoming more and more prevalent. For example, in the wake of the Israeli Supreme Court's decision in Facebook, Inc. v. Ben Hamo, Civ. App. 5860/16 (Sup. Ct. 2018), the choice-of-law provisions in the terms and conditions of companies such as Google and Facebook will usually be enforced, resulting in foreign law litigation in Israeli courts (usually California law). As the internet becomes the almost exclusive medium for social and commercial transactions (especially in the Covid-19 context), litigation involving global companies with standard “terms of services” will become more and more prevalent. This means that foreign companies will find themselves being hauled into Israeli courts by consumers, notwithstanding a forum selection clause in the company’s online terms of service. The flip side of this – if decisions like Ben Hamo indicative of anything – more and more cases in Israel will be adjudicated in accordance with foreign law.
So, where do I come into the picture? Well, I help courts, both in the U.S. and in Israel, understand the applicable foreign law. In Israel, I help counsel and the court understand and apply the applicable U.S. law (either state or federal). In the U.S., I help the court and counsel understand and apply Israeli law. How do I do this? I begin by researching the various issues and then by carefully drafting a memorandum/expert opinion that makes the foreign law seem, well, less foreign.
CHOICE-OF-LAW IN PRACTICE
I mentioned above in general terms when foreign/U.S. law becomes relevant in Israeli proceedings. The following are the main practice areas where a foreign expert opinion or testimony may be required.
ESTATE AND PROBATE LAW
Under Israeli choice-of-law rules, if an individual passes away while residing in the United States, the applicable law regarding the probate of the estate is the law of the domicile of the decedent. Israeli courts require an expert opinion in the law of the decedent's domicile when the heirs attempt to probate the will in Israel or request an order of succession (for intestacy) from an Israeli court.
ENFORCEMENT OF FOREIGN JUDGMENTS
Enforcing a foreign money judgment in Israel is regulated by the Enforcement of Foreign Judgments Law of 1958 (the "FJ Law").
Under the FJ Law, an application must assert and prove the following four basic elements as a condition to enforceability: (1) the foreign court that issued the judgment had jurisdiction adjudicate the matter; (2) the judgment is final, e.g. no longer subject to an appeal; (3) the judgment does not offend notions of public policy; and (4) the judgment is enforceable in the country in which it was issued. These elements must be proven by way of an expert opinion in foreign law.
CONTRACT CHOICE-OF-LAW PROVISION
Another circumstance where a expert testimony may be required in litigation is when the dispute involves a contract which includes a choice-of-law provision. The expert testimony may be required to opine as to the interpretation of the contract, the enforceability of the contract, whether there was a breach of contract, damages and other relief, etc.
GENERAL CHOICE-OF-LAW RULES
Other choice-of-law rules may also require an Israeli or U.S. court to apply foreign law. For example, under the "internal affairs doctrine" only "one State should have the authority to regulate a corporation’s internal affairs – matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders." Edgar v. MITE Corp., 457 U.S. 624, 645 (1982). For example, if a dispute arises as to a director's fiduciary duties towards an Israeli corporation, Israeli law will apply even if the law suit is being brought in a U.S. court. The opposite is trues as well. For example, whether a shareholder has certain inspection rights will be determined by the state of incorporation of the company, regardless of where the claim is being litigated. In such circumstances, expert testimony in the applicable law may be necessary.
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