No CrossRef data available.
Article contents
Private International Law and Scope–Delineation of Legislation in the Israeli Legal System
Published online by Cambridge University Press: 21 May 2009
Extract
The object of this article is to explore the normative quality and effect of scope-delineated legislation – both Israeli and foreign – in the context and within the framework of the underlying principles of Private International Law in the Israeli legal system. It should be noted that the following analysis focuses exclusively on scope-delineation of substantive legal rules (of the Israeli lex fori as well as of the foreign lex causae). Choice of law rules as such (including internationally uniform choice of law standards) and special (internationally uniform) substantive rules for situations with foreign elements will not be discussed here.
- Type
- Articles
- Information
- Copyright
- Copyright © T.M.C. Asser Press 1984
References
1. Official Gazette, 1922, p. 1.
2. See, e.g. Amado v. Director of Immigrants Camp et al., (1949) P.D. 4,14; New Zealand Insurance Company Ltd. et al.., v. Yuval, (1951) 7 P.D. 518, 523; Skornik v. Skornik, (1951) 8 P.D. 141; Amsterdam et al. v. Minister of Finance, (1951) 6 P.D. 945;Matalon v. Rabbinical Court, (1963) 17 P.D. 1640, 1645; Menorah Ltd. v. Numikos, (1971) 26(11) P.D. 527, 523; Azugi v. Azugi, (1977) 33(111) P.D. 1, 29. On the relationship between Israeli Private International Law and English Common Law, before and after the establishment of the State of Israel, see generally Levontin and Goldwater, The Rules of Choice of Law in Israel and Article 46 of the Order in Council (Institute of Legislative Research and Comparative Law, Jerusalem, 1974).
3. Foundations of Law Act, 1980,1980 S.H. (Principal Legislation, in Hebrew 978, p. 163. Section 2 explicitly repeals Article 46 of the Palestine Order in Council, 1922, but stipulates that such repeal is not to derogate from English law as already absorbed into the Israeli legal system before the passage of the Foundations of Law Act.
4. See, e.g., sections 1 and 2 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, 7 Laws of the State of Israel, p. 139; the Foreign Judgments Enforcement Law, 1958, 12 Laws of the State of Israel, p. 82; section 17 of the Family Law Amendment (Maintenance) Law, 1959, 13 Laws of the State of Israel, p. 73; section 25 of the Adoption of Children Law, 1960, 14 Laws of the State of Israel, p. 93; sections 76 and 77 of the Legal Capacity and Guardianship Law, 1962, 16 Laws of the State of Israel, p. 106; sections 136–144 of the Succession Law, 1965, 19 Laws of the State of Israel, p. 58; section 6 of the Arbitration Law, 1968, 22 Laws of the State of Israel, p. 210; Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, 23 Laws of the State of Israel, p. 274; section 15 of the Spouses (Property Relations) Law, 1973, 27 Laws of the State of Israel, p. 313. On the future prospects of codifying this branch of Israeli law see Vitta, Codification of Private International Law in Israel?, 12 Is.L.Rev. 129 (1977).
5. Azugi v. Azugi, (1977) 33 (111) P.D. 1.
6. 16 International Legal Materials 14 (1977).
7. From a general jurisprudential standpoint, it is certainly true that “No rule of law is conceivable that is not equipped with the attributes of extension – in time as also in place … unless it is known whose conduct, when, and where is sought to be regulated by it, we have no rule of law … An idea for a rule of conduct is like the idea of cloth; it need not have dimensions. But an actual rule of conduct … is like a piece of cloth; and every piece of cloth has dimensions, and can only exist in space and time … to be ‘space’ – and ‘time-conditioned’ is an essential attribute of a legal rule as such”. Levontin, Choice of Law and Conflict of Laws 156–157 (Sijthoff-Leyden, 1976) emphasis in the original). Yet no one can deny that the elucidation of the tacit “attributes of extension” of a substantive legal rule in a situation containing foreign elements may entail special complexities, which are not encountered (at least not with such frequency and intensity) in wholly domestic situations.
8. Those Choice of Law standards offer – often rather obliquely – initial guidance in distinguishing “operative” foreign elements (categorising the case at bar as a “Conflicts” situation) from “immaterial” ones (placing the mattei in question in the class of “domestic” cases). (See Levontin, id. at 133–34.
9. See, e.g., Forsyth, and Bennett, , Private International Law 11 (Juta & Co. Ltd.., Capetown, 1981)Google Scholar.
10. See Shapira, , The Interest Approach to Choice of Law, 52–53 (Nijhoff, The Hague, 1970)CrossRefGoogle Scholar.
11. See Levontin, , supra note 7, at 125–127Google Scholar.
12. See, e.g., Amsterdam v. Minister of Finance, (1951) 6 P.D. 945; Knoll v. Rabbinical Court, (1958) 12 P.D. 1622. Compare: Sykes and Pryles, Australian Private International Law 120 (The Law Book Co. Ltd., Sydney, 1979).
13. See Alkurdiv. State Labor Court et al., (1971) 26(II) P.D. 66, 77–79.
14. 12 Laws ofthe State of Israel, p. 129.
15. Menorah Ltd. v. Numikos, (1971) 26(11) P.D. 527. See also Migdal Ltd. v. American Export Lines et al., (1967) 21(22) P.D. 789.
16. See Bumstein v. Yudelivitz (1949) 5 P.D. 858; Skornik v. Skornik (1951) 8 P.D. 141, 174; Provalski v. Zilbei (1954) 11 P.D. 626; Hirschberg v. Yakorska (1957) 12 P.D. 1896; Menorah Ltd. v. Numikos(1971) 26(11) P.D. 527.
17. Cook,“‘Substance’ and ‘Procedure’ in the Conflict of Laws”, 42 Yale J.L. pp. 333, 334(1933), reprinted in Cook, “The Logical and Legal Bases of the Conflict of Laws” (1942) pp. 154,166.
18. See Norden Oil Services Ltd. v. Morey, (2–13/1982) 13 P.D.A. 368.
19. Id. at pp. 383–384.
20. Id. at p. 384.
21. Juenger, , American and European Conflicts Law, 30 Am. J. Comp. L. 117,127 (1982)Google Scholar.
22. Richardson v. Mellish, (1824) L. Bing. 229, 252 (per Burrough J.).
23. Schlezinger v. Minister of Interior, (1962) 17 P.D. 225, 256. Compare: Yekutiel v. Bergman, (1974) 29(11) P.D. 757, 776; Loucks v. Standard Oil Co., 224 N.Y. 99, 111, 120 N.E. 198, 201 (1918) (per Cardozo J.).
24. See Juenger, , supra note 57, at 123Google Scholar.
25. 8 von Savigny, System des heutigen roemischen Rechts IV 33 (1849).
26. “Such statutes are, indeed, little more than crystallized rules of public policy which … override the standard choice of law rules”. Forsyth, and Bennet, , supra note 9, at 11Google Scholar.
27. “Laws of immediate application are in the nature of a sortie made by our law to seize persons, relations or events that are somehow “foreign” to our law and which would not normally be within its control”. Levontin, supra note 7, at 155.
28. See Boissevain v. Weil [1950] A.C. 327.
29. For example, liability grounded in a workmen's compensation statute, which eludes neat classification either as delictual or as contractual in nature. See Sykes, and Pryles, , supra note 12, at 124Google Scholar.
30. Cf. Hoff, , The Intensity Principle in the Conflict of Laws 39 Va. L. Rev. 437, 441, 445, 450 (1953)Google Scholar; Kramer, , Interests and Policy Clashes in Conflict of Laws, 13 Rutgers L. Rev. 523, 546 (1959)Google Scholar; Leflar, , Choice-Influencing Considerations in Conflicts Law 41 N.Y.U.L Rev. 267, 300 (1966)Google Scholar.
31. Cf. von Mehren, and Trautman, , The Law of Multistate Problems 376–78 (1965)Google Scholar.
32. 5 Laws of the State of Israel, p. 171.
33. Steincr v. Attorney–General, (1954) 9 P.D. 241. In Azugi v. Azugi, (1977) 33(111) P.D. 1, 28, Justice Barak commented that:
“The Provisions of Sections 1 and 2 of the Women's Equal Rights Law, 1951, express Israeli Public Policy and, consequently, no effect should be given to a foreign law incompatible with those provisions”.
34. 23 Laws of the State of Israel, p. 274.
35. Such officially recognized communities maintain their own tribunals, which apply their particular religious law in certain family law matters.
36. It is noteworthy that parties affiliated to a religious community recognized in Israel cannot benefit from this overriding principle of divorce by consent. Such parties are bound by their particular community's religious law, which may (as in the case of Jews) or may not (as with Catholics) endorse the principle of consensual divorce.
37. 16 Laws of the State of Israel, p. 106.
38. See, in particular, Sections 25 and 30:
25. Where the parents have not reached an agreement as provided in section 24, or where they have reached an agreement but it has not been carried out, the Court may determine the matters referred to in section 24 as may appear to it to be in the best interests of the minor …
30. The Court shall not appoint a guardian in addition to a parent unless it sees special reasons for doing so in the best interest of the minor…
The concept of the “welfare of the child” was first adopted by the Israeli legislature in Section 3 of the Women's Equal Rights Law, 1951, supra note 32, which guides Israeli judges to deal with matters of guardianship of children “with the interest of the children as the sole consideration”.
39. See Shapira, and Siehr, , “The Jundeff Affair – Comparative Remarks on International Child Kidnapping and Judicial Co-operation”, 25 NILR 3 (1978)Google Scholar.
40. Steinei v. Attorney–General, (1954) 9 P.D. 241, 248. The foreign applicable law, overriden by the Israeli “best interest of the child” ‘super-standard,’ recognized the father as the sole natural guardian of his children.
41. Bulstein v. Bulstein,(1977) 31 (II) P.D. 536.
42. Azugi v. Azugi, (1977) 33 (III) P.D.I.
43. Id. at 9.
44. Id. at 28.
45. 19 Laws of the State of Israel p. 58.
46. See Chapter seven “Conflict of Laws”.
47. 12 Laws of the State of Israel p. 82.
48. See text to footnotes 32, 33, 37, 38, 39,40 and 41 supra.
49. See Section 2 of the Penal Law Amendment (Bigamy) Law, 1959,13 Laws of the State of Israel p. 152.
50. See Section 3 of the Family Law Amendment (Maintenance) Law, 1959, 13 Laws of the State of Israel p. 73; Peretz v. Peretz, (1972) 26 (II) P.D. 793, 794; Anonymous v. Anonymous (1976) 31 (III) P.D. 85.
51. See Section 7 of the Foreign Judgments Enforcement Law, 1958, supra note 47.
52. See Hawardy Ltd. v. Klinski, (1970) 24 (II) P.D. 565; Ben-Shitrit v. Ben-Shitrit, (1971) 26(1) P.D.638, 643; Mazoret.al.v.Kirschenbaume et al., (1954) 25 P.D. 218,221.
53. A limited (or ‘space-conditioned’) substantive rule “covers less ground than we would be prepared to concede to the national legal order of which it is a part.” Levontin, supra note 7, at 155.
54. This is, of course, an age–old dilemma: see Juenge, supra, note 57, at 121.
55. 2 Laws of the State of Israel (New Version) p. 5.
56. Libhar v. “Gazit and Schacham” Ltd. et al., (1967) 21 (II) P.D. 243.
57. Id. at 248–249 (per Justice Landau).
58. Which follow the not-too-cleai English position in this matter. See, e.g., Chaplin v. Boys, (1969) 2 All E.R. 1085.
59. As to matters falling “within the defined scope of the limited substantive rule, the extensional direction functions as a complete “special” rule of choice of law. When the matter falls outside that scope, yet another rule … of choice of law will also have to be used.” Levontin, supra note 7, at 156 (emphasis in the original).
60. See Shapira, , supra note 10, at pp. 138–140Google Scholar.
61. (2–13/1982) 13 P.D.A. 368.
62. Id. at p. 388.
63. 12 Laws of the State of Israel p. 82.
64. To deny local effect to a foreign judgment on the sole ground of a mistake of law or fact might turn the forum into a tribunal hearing appeals – on the merits of law and fact – from judgments of foreign courts. This, would not accord with the goals seen by Israel private international law as underlying the practice of allowing local effect to foreign decisions, name-ly, the desire to put an end to litigation, the wish to do justice to a successful litigant, the policy favoring the fostering of reciprocal judicial respect and transnational cooperation, and the general interest in maximizing legal stability and certainty.
65. See text to footnotes 47,48,49,50, 51 and 52 supra.
66. See Sykes, and Pryles, , supra note 12, at pp. 120–121Google Scholar.
67. Unless deemed by it to be trespassing on the domain of local public policy.
68. For an argument pointing to the functional similarity between general choice of law rules and “private” rules of choice (embodied in specific self-limited legal standards) and concluding that the application of foreign space-conditioned substantive laws is a matter analytically continuous with Renvoi proper, see Levontin, , supra note 7, at 150–151, 157Google Scholar.
69. See text to footnotes 55, 56, 97 and 58.