Discussion and Decision of the Threshold Arguments
Filing a petition against the Enforcement Committee by the Authority
- Section 52A The Securities Law states:
")a) An administrative petition as stated in section 42E of the Courts Law, against the decision of the panel as stated in section 51, shall be filed within 45 days from the date on which the panel received the decision.
(b) If a petition is filed against the panel's decision, the court may approve, cancel, or change the panel's decision."
- The language of the section does not include a provision whereby a petition will be filed by the violator alone. Lorenzi argues that the conclusion from the lack of an explicit provision is that the ISA is not entitled to file a petition. This is because an administrative authority is only allowed to do what is permitted to it by law. In any event, in his view, the language of the law also indicates that only the violator is entitled to appeal against the decision of the Enforcement Committee. This, since Section 52S(a) The Securities Law states that"A petition will be filed within 45 days from the date Getting The Panel's Decision". According to him, this provision should be read together To Section 52A(a), which states that the decision will be sent to "Violates". Therefore, according to him, only the violator is considered to have made the decision, and only he has the right to appeal.
I cannot accept this argument. The law defines the path of appeal against the decision of the enforcement committee and the court that will decide on it. The Israel Securities Authority is a party to the administrative enforcement process, and the possibility of obtaining an objection to it expresses its right of access to the objection process. The right of access to the courts is said to be "... The mother of all rights" (Yitzhak Zamir, Administrative Authority, Vol. 3, 2078 (2014)) and from her status derives caution in determining that she was deprived of one of the parties. I am of the opinion that in a situation in which the law establishes the route for appealing the committee's decision, it should not be determined that access to it was denied to one of the parties merely for the reason that it was not explicitly stated that both parties to the proceeding are entitled to take it (compare: Yitzhak Zamir, The Administrative Authority, Vol. 4, 2565, 16 (2017)). There is also no room for such a conclusion based on an interpretation based on technical provisions relating to the delivery of the decision, especially since the word "received" can also include any of the parties in the proceeding.
- Lorenzi further argues that already because it has been determined that the route of appeal against the decision of the Enforcement Committee is an "administrative petition" and not an "appeal", it follows that only the individual, i.e., the violator, is entitled to file it. But, as noted by the court In the case of Edri El There are quite a few examples of petitions filed by authorities, including the Israel Securities Authority (ibid., paragraphs 64-65). These examples show that the definition of the objection procedure does not in itself indicate the limitation of the identity of the petitioners.
- But Lorenzi's arguments are not rooted in a technical-formal interpretation of the legislation. They reflect a principled position according to which the Authority's lack of the right to appeal the Enforcement Committee's decision is justified by considerations of the "balance" of the proceeding, in which the Authority has an advantage. In addition, they are based on the concept that the Enforcement Committee is dependent on the ISA and is in fact an integral part of it. For this reason, granting the authority the right to appeal against the committee's decision is "absurd" since it is equivalent to "a petition by the authority against its decision".
- I can't accept Lorenzi's claims either.
The Enforcement Committee consists of six members. Two of them are the Authority's employees who are qualified to serve as District Court judges. These members are appointed by the chairman of the Authority. The other four are two experts in the field of capital markets and two jurists who are experts in the relevant fields of law. These four are appointed by the Minister of Justice (Section 52Lev to the Securities Law). When the chairman of the authority decides to initiate an administrative proceeding, he appoints three members from among the six members of the committee to discuss it. The composition of the committee members is dictated by law, so that in any case, the three who will be discussed are – the chairman of the committee (one of the two employees of the authority who are qualified to serve as a district court judge), an expert in the capital market, and an expert jurist. Thus, each panel that discusses a concrete proceeding includes people who are experts in the field of law and the capital market, two of whom were not appointed to the position by the chairman of the authority. In other words, the Enforcement Committee is not a "Authority" panel, it is not composed of its employees, and the law emphasizes the professionalism and expertise of its members. To this, it should be added that the panel's decisions are made by a majority of opinions (Section 523(b)), and the votes of all the members of the committee are equal.