See also: Civil Appeal 3535/00 Yossi Weiner v. Hannah Sharut, (Nevo 1.7.2001), by the Honorable President (as he was then called) Aharon Barak:
"In order to formulate a cause of disqualification, "the question that must be asked is... If there is a real concern of bias in the sense that the opinion of the presiding judge is "locked", so that the entire proceeding can be viewed as an "addicted game" (Civil Appeal 1335/99 NIS). Market Markets and Works in Tax Appeal v. Bank Leumi Le-Israel in Tax Appeal (unpublished)). In this case, a draft judgment was written by the court, before the time was ripe for a judgment in the trial. Indeed, the draft judgment shows that the court formulated a position for itself on the basis of the evidence and the arguments of the parties, which were before it at the time. However, as the court also noted in its decision, this does not indicate the formulation of a position that cannot be changed in the event that additional evidence is presented to it. As stated, following the arrangement reached by the parties to the petition, the court heard additional testimony on behalf of the appellant, and received additional evidence. In the circumstances of the case, the very fact of writing a draft, which was written before all the evidence was received, at a stage when it was not clear whether additional evidence would be submitted or not, does not indicate the formation of an unchangeable prejudice. For these reasons, and in the absence of a real fear of bias, the appeal should be dismissed."
- As to the Applicant's argument regarding the arbitrator's e-mail message of January 15, 2025, which was written in response to the Applicant's request that he resign from his position, I have not found that the arbitrator's wording in this notice indicates a real fear of bias, as claimed by the Applicant. It will be explained; Counsel for the Applicant who signed the letter dated December 15, 2025, addressed to the arbitrator entitled: "Request from the Honorable Arbitrator to resign from his position." They do not serve as the Applicant's representatives in the arbitration proceeding. In the said postal notice, the arbitrator wrote with respect to the allegations raised against him, as stated in a letter signed by the Applicant's counsel who are not represented in the arbitration proceeding:
"Attorney Yaad Shalom. You were not involved in the arbitration and I view your letter with severity without checking the facts. The visit to the property with the parties to examine the construction defects was conducted on October 27, 2022, and my opinion on the subject of the construction defects after the tour and hearing the parties has already been written."
- In the circumstances of the case, I did not find it acceptable to accept the Applicant's argument that the arbitrator's use of the word "severity" indicates a real fear of bias towards the Applicant. I will note that I did not find a similarity between the facts of the judgment to which counsel for the Applicant referred in his summaries given in the motion to open arbitration (Nazareth) 30243-12-11 Amiron Construction and Investment Company in a Tax Appeal vs. Atef Musa & Co. in a Tax Appeal (Nevo, July 24, 2013), in this case. There it was held that the arbitrator's demand that one of the parties apologize to him shows that the arbitrator admits that he feels personally harmed in light of the request to remove him from his position, and in this way he himself questions his ability to be an arbitrator between the parties. It was further determined that this was a statement that could be interpreted as a threat, and that even a reasonable person would have lost his trust in the arbitrator. It was also held that: "By asking for an apology, the arbitrator expresses his inability to make a distinction between the professional and the personal aspects, and therefore the appearance of justice has been harmed or may be harmed in a tangible and clear manner". It is clear that there is no identification between these circumstances and his case. I will also add that in addition to what has been described, in the framework of the aforementioned judgment, the court found that the arbitrator should be removed from his position due to a backlog of events that led to his decision, including the imposition of fines on the parties by the arbitrator and the claim of the arbitrator's prior acquaintance with the witness.
- In addition, I did not find that in the circumstances of the case, the arbitrator's demand for payment of his fees by the Applicant, for the purpose of examining the Applicant's request that he resign from his position, indicates a real fear of bias. The arbitrator noted in paragraphs 3-5 of his letter of December 18, 2024:
"3. The authority to disqualify the arbitrator is the decision of the court that appointed the arbitrator in accordance with sections 11 and 12 of Chapter C, the appointment of an arbitrator and the removal of the arbitrator from his position.
- In order for me to be able to take seriously Attorney D. Niv's request for my resignation, I must read the 17 pages of the application, including the minutes, and this requires a lot of time, and the applicants must pay me my salary for my treatment in the sum of ILS 6,000 + VAT. In addition, I was not paid my salary for the previous meeting on September 29, 2024 in the sum of ILS 5,000 + VAT.
- I will ask you to pay me my salary and then I will respond to the request."
- 53. Letter from counsel for the Applicant to the arbitrator dated November 24, 2024, indeed numbering 17 pages, In the framework of the arbitration, many arguments were raised, including references to the minutes of the hearings that took place over the course of the four years of arbitration. The examination of the application submitted to the arbitrator, including the response and response to the request, requires, inter alia, a reading of all the transcripts that include hundreds of pages. The arbitrator's demand for payment of fees from the applicant, who filed the application, is consistent with the provisions of the arbitration agreement sent by the arbitrator for the parties' signature at the beginning of the arbitration proceeding (Appendix 7 to the application), where it is stipulated in section 4 that establishes the arbitrator's powers: "The arbitrator will be entitled to order the parties' expenses, including attorney's fees, and the arbitrator's fees and expenses, in whole or in part, and he may order the deposit of these sums or the provision of a guarantee for paymentIt should be noted that even in the amended draft of the agreement in which the Applicant's counsel made changes, this authority of the arbitrator was not changed. (Appendix 8 to the application). In this regard, section 4.4 is also available. Annex 7 to the Arbitration Agreement. In addition, The Arbitration Law in Sections 32-33, regulates the procedural manner in which one of the parties is of the opinion that the remuneration stated by the arbitrator is excessive. A perusal of the aforesaid letter of the arbitrator gives the impression that the arbitrator did not seek to use the payment of the fees as a threatening or punitive tool, but rather explained the demand for the fee, the scope of the application that was filed and the need to go through all the hundreds of pages of the minutes in order to address all the arguments raised in a serious and substantive manner. (See:Stimulus Opening Arbitration (Tel Aviv) 60161-08-18 Sagi Bentai v. Oshrat Shuker (Nevo, March 6, 2019, paragraph 14).
- In applying the considerations set out in the case law, including the length of time that has elapsed since the arbitrator's statements that are the basis of the application and their presentation in isolation from their context, the delay in filing the application, the conduct of the arbitrator and the conduct of the parties during the arbitration hearings, the stage at which the arbitration is located since the conclusion of the hearings, which lasted for about 4 years and an order was given to submit summaries, and as a result, the torture of the law and the damage that will be caused, in view of the resources invested so far in the conduct of the arbitration, I find that the request to remove the arbitrator from his position should be rejected.
- Since I did not find that the arbitrator's statements and his alleged conduct raise a real concern of impartiality, I found that I am unable to accept the arguments of the Applicant's counsel in the hearing before me, that the circumstances of the case before me should suffice in the test of the violation of the appearance of justice. This is a claim that is inconsistent with the court's ruling In the case of Ganama, when the Supreme Court also reiterated in its judgment In the matter of Art B, that the test of the appearance of justice will be applied in extreme circumstances, in accordance with the circumstances of the judgment In the case of Ganama, which I have not found to exist in our case. (See paragraph 118 of the judgment in the Art B case).
- And before concluding;
- Reading the hundreds of pages of the minutes of the hearings that took place before the arbitrator, it is impossible not to get the impression that the parties, in their conduct, brought upon themselves the statements that the Applicant complains about in her application, as well as the tense and charged atmosphere created in the arbitration. The line of fairness requires that the arbitrator's statements should not be read in a vacuum and that they should be extracted with tweezers regardless of the context in which they were said, the conduct of the parties and the mood that prevailed during the conduct of the arbitration hearings. (See: "The matter of Rabbi Kahneman" above paragraph 23: "An arbitrator is a man, and there is no angel arbiter").
- Relevant to the matter are the things that have been said In Motion to Initiate Arbitration 14683-04-17 Ido Hagag et al. v. Tzipora Baron et al. (paragraph 25, Nevo, June 21, 2017):
"The arbitrator, like the judge, is the competent authority to maintain the ethics of the hearing, to conduct it efficiently and purposefully, to impose a proper and dignified atmosphere in the arbitration, and to ensure the optimal utilization of the proceeding, while preserving the rights of the parties. The arbitrator is required to prevent futile moves that unnecessarily prolong the hearing and consume unnecessary resources. The arbitrator must be involved in the conduct in a continuous and dynamic manner, and not allow the cart to deviate from the path. This is the role of the arbitrator, and he cannot hang the collar for the chaos that was created only on the litigants."
- In conclusion;
- Therefore, and in accordance with all of the above, the motion to remove the arbitrator from his position is denied.
- The Applicant will bear the Respondents' expenses in respect of the rejection of the application, in a total sum of 7,000 ₪, Which will be paid within 30 days. In determining the amount of expenses, I took into account the scope of the application as submitted, which consists of 579 pages of appendices, the need to submit a response and the hearing before me.
The Secretariat will provide the judgment to the parties.