Tips to the Practitioner: Enforcing Foreign Judgments in Israel
Enforcing a foreign money judgment in Israel is regulated by the Enforcement of Foreign Judgments Law of 1958 (the "FJ Law").
As in most jurisdictions, a foreign judgment is not automatically enforceable in Israel. Rather, a plaintiff must commence an enforcement proceeding pursuant to the FJ Law and request that the Israeli court declare that the judgment is enforceable. 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.
There are practical considerations that can effect the disposition of a petition under the FJ Law beyond the four elements just mentioned. One such consideration is what what exactly is the form of the foreign judgment document that is being sought to be enforced.
This issue comes up frequently in the context of enforcing U.S. federal judgments, especially summary judgments pursuant to Rule 54 of the Federal Rules of Civil Procedure ("FRCP"). A federal judgment is typically divided into two distinct documents. The first is what is sometimes called the “memorandum opinion” or the “full-dress opinion.” The second document is the actual operative judgment. A “memorandum opinion” usually contains information as to the background of the case, the parties, the allegations, procedural background and legal conclusions. The judgment, on the other hand, is usually a very short and technical document, instructing the losing party to pay the winning party a certain sum of money. See, in general, Judicial Writing Manual: A Pocket Guide for Judges (2013).
What document is the proper one to enforce under the FJ Law? The simple and short answer to that question is that the judgment – containing the operative instructions -- is the "enforceable" document. The "memorandum opinion" may not even contain operative instructions and therefore there is nothing really to enforce.
However, that does not mean that the "memorandum opinion" should not be addressed in the application. Indeed, the "memorandum opinion" -- because it contains the factual and legal background -- is, in many ways, more important than the judgment.
In a recent case entitled Enovative Technologies, LLC v. Lior (Dist. Ct. Be'er Sheba, June 16, 2019), the corporate applicant commenced proceedings under the FJ Law to enforce a money judgment handed down from U.S. District Court, District of Maryland. While the Israeli court ultimately granted the relief sought, there is much to be learned by the court's comments on the way to that outcome.
The original application sought to enforce the "Order" of the court which was issued pursuant to the court's earlier legal "Memorandum". However, the initial application did not attach the memorandum opinion and, apparently, did not discuss it much (if at all). At one point in the proceeding, pursuant to a court order, Enovative amended its application by attaching the Memorandum. The court viewed Enovative's failure to attach a translated version of the Memorandum as a "procedural defect" (par. 29 of the Israeli judgement). While the court did not take the position that this failure was fatal or dispositive of Enovative’s application, it stated that it would consider the matter when assessing an award for costs and attorney fees.
There is a lesson to be learned here. When preparing an application under the FJ Law, it’s well worth it to fully brief the Israeli court with the background information of the foreign proceeding, including the legal theory underlying the actual judgment. This is especially true when the judgment does not contain any facts and is merely a numbered list of operative orders to the parties. This is also true when the only document that exists in a judgment (e.g. if the court did not issue a memorandum opinion).
A strict and narrow reading of the FJ Law may lead many to assume that as long as the four basic conditions are asserted and proven, nothing else is required. However, as the court in Enovative made clear, parties should go beyond the strict language of the law and supplement their briefs with sufficient information that will provide context and content to the judgment that is being sought to enforce. Not only will the court appreciate the effort, but it will ultimately save the client money and time.