Civil Case (Jerusalem) 71355-05-25 Moshe Gertner v. Gezel Weinroth

1. This is an application procedure for the approval of an arbitral award (the "Motion for Approval") granted by the Honorable President (Ret.) A. Orenstein of May 12, 2025 (the "Arbitration Award"), and a request for annulment filed in respect thereof (the "Motion for Annulment").
2. The matter of the arbitration was mutual claims between the applicants for approval of the arbitration award, the brothers Moshe and Mendy Gertner et al. ("Gertner") and the late Adv. Yaakov Weinroth ("the deceased").  The deceased passed away during the conduct of the arbitration, and in accordance with the decision of December 22, 2019 given by the person before whom the arbitration was conducted at the time, the Honorable President (Ret.) A.  Goren, it was held that his heirs, who are his wife and children, who are the ones who also filed the application for annulment ("Weinroth's heirs"), will be the parties in place of the deceased.
3. The arbitration award contains 502 pages, and is given after many years of litigation. These begins, as stated, before the Honorable President (ret.) A.  Goren, who was later replaced by Arbitrator Orenstein, in circumstances that do not relate to the present proceeding.  The process, which began in 2013, was comprehensive, included dozens of witnesses and evidentiary hearings, and thousands of pages of minutes.
4. The arbitration award awarded Gartner an amount of $37,500,000 plus Libor interest + 4.5%, as well as fees and expenses in the amount of ILS 3,500,000. As stated in the arbitration award that was given, the sum was awarded against the Weinroth heirs, and according to what is stated therein, their obligation therein is jointly and severally.  Taking into account the date of the start of the interest race that was awarded, the amount of the arbitration award, according to Gartner, amounts to a total of ILS 438,077,618 as of the day on which they filed the motion to certify the arbitration award.  Weinroth's heirs dispute the amount specified by Gartner, but no counter-calculation has been brought by them to the present stage.
5. The arbitration was conducted in continuation of the arbitration that had already begun in 2011 between Gertner and Dan Gertler et al. ("Gertler") (the "Parallel Arbitration").  The parallel arbitration was conducted by virtue of an arbitration agreement between Gertner and Gertler from June 2010, in which it was agreed that all disputes of the parties, as detailed in that agreement, would be transferred to an arbitrator, who would decide in accordance with the provisions of the substantive law and explain the arbitration award.
6. The said arbitration agreement also stipulates that in the event that one of the parties to the arbitration seeks to sue or take any legal action against a third party that was not attached to the arbitration agreement in connection with a matter of dispute between Gertner and Gertler, it shall notify the other party thereof, and shall inform the other party whether it wishes to clarify this proceeding before that arbitrator. If the other party agrees to this, the disputes against the third party will be arbitrated before that arbitrator.  Clause 3(d) of the arbitration agreement stipulates that "the proceeding against the third party shall be conducted within the framework of a separate and independent arbitration (even if the arbitration shall be conducted before the arbitrator appointed under this agreement), unless all parties (including the third party) have agreed to add that party to the arbitration proceeding that has already begun under his administration."
7. In accordance with this section, and since it became clear that Gartner also had a dispute with the deceased in matters relating to the matters relating to the dispute with Gertler, it was agreed between the parties to clarify this dispute before the same arbitrator, in such a manner that, as agreed between the parties, the deceased became a party to the said arbitration agreement. In the parties' letter to the arbitrator in 2013, it was noted that he had been appointed "to resolve the disputes between them in the framework of an arbitration proceeding that will be conducted separately and in parallel with the arbitration proceeding that is being conducted before you between the Gertner brothers...  and Mr. Dan Gertler...".  It was further agreed that the arbitrator would be subject to the substantive law of the State of Israel and would explain the arbitration award that would be given by him.
8. At the time of filing the motion to certify the arbitral award, Gartner also filed an ex parte motion for foreclosures, which was granted. According to reports, at this stage, 12 real estate assets of Weinroth's heirs have been foreclosed, as well as funds totaling ILS 3 million.  No request was filed to cancel the foreclosures that were imposed.  Subsequently, a motion was filed by Gertner to order the deposit of a guarantee, by virtue of section 29(a) of the Arbitration Law, 5728-1968 (the "Arbitration Law"), and in a decision of October 22, 2025, it was determined that the Weinroth heirs must deposit a guarantee in the amount of ILS 7 million, which was done by them.
9. The Ottoman Settlement [Old Version] 1916In essence, the request for cancellation rests on two main pillars. The case of the former is the claim that Weinroth's heirs became a party to the arbitration proceeding only in order to enable its continued management, upon the death of the deceased.  According to the Weinroth's heirs, the arbitrator had no authority to discuss their personal liability for the debts of the estate, and there is also no place for their personal charge for the amount of the arbitration award, which, according to them, significantly exceeds the amount of the deceased's estate, and thus certainly since the matter was not discussed in the arbitration proceeding and was not explained in the arbitration award.  Therefore, they claim that the arbitration award is nullified under sections 24(3), (4) and (6) of the Arbitration Law, as well as 24(7), as well as 24(9) and (10).
10. 12-34-56-78 Chekhov v. State of Israel, P.D.  51 (2)The second argument on which the motion for annulment is based concerns the argument that the arbitration award was given in contradiction to previous factual determinations of the arbitrator, as given by him in the parallel arbitration proceeding.  According to the claim, Gertner's claim against the deceased constituted a branch of the parallel arbitration, and for this reason it was heard before the same arbitrator.  According to the claim, while in the framework of the parallel arbitration it was determined by the arbitrator - in a manner that amounts to estoppel - that the deceased transferred to Gertler $20 million out of funds deposited with him by Gertler for the benefit of servicing their debt to Gertler; Thus, in the present arbitration award, he made the opposite finding that the deceased did not transfer the funds to Gertler, and therefore they should be returned to Gertner.
11. According to the claim, a case law that ignores the existence of a company estoppel establishes grounds for cancellation by virtue of section 24(7) of the Arbitration Law, as it deviates from the substantive law. It was further argued that the arbitrator was not authorized to exempt himself from the rules of court action, and to do so constitutes a deviation from authority in a manner that establishes a cause of action in accordance with section 24(3) of the Arbitration Law.  A cause of action was also argued by virtue of section 24(6) of the Arbitration Law, since no reasoning was given as to why the contradictory rulings were given.  It was also argued that the existence of contradictory rulings establishes grounds for annulment even in accordance with section 24(9) of the Arbitration Law.
12. The parties submitted detailed written arguments that dealt extensively with the above two issues. In addition, an oral hearing was held on the matter in the presence of the parties, who waived the conduct of investigations.
13. Given that the two foundations as detailed above, which substantiate the request for cancellation and the relevant facts relating to them, are separate in nature, they will be discussed separately below, each on its own merits.
14. Request for annulment in view of the heirs of Weinroth being personally charged to pay an arbitration award jointly and severally
15. It was copied from the deceased Nevo who died on October 16, 2018, in the midst of the arbitration proceeding that began, as aforesaid, in 2013. Following the deceased's death, various proceedings were conducted between Gertner and Weinroth's heirs in the Family Court.  Thus, on November 27, 2018, Gartner submitted a request for the appointment of a temporary administrator for the deceased's estate.  At that time, one of the deceased's sons had already been appointed as an estate administrator, but the court granted the request and ruled that a temporary estate administrator should be appointed in cooperation with the already appointed temporary administrator (the deceased's son).
16. On February 18, 2019, a probate order was issued to the deceased, without appointing a permanent estate administrator. Therefore, Gartner filed a request on February 21, 2019 for the appointment of a permanent estate administrator.  As a result, the powers of the temporary estate administrators were temporarily extended as those of permanent estate administrators.  In addition, Gertner asked to review the details of the deceased's estate.
17. In their reasons for these requests, Gartner explained, inter alia, that there is room for the appointment of a permanent estate administrator in light of the concern that the assets of the estate will be reduced from which the testator's creditors can repay, at the expense of increasing the assets of the beneficiaries outside the estate (see, for example, at paragraph 82 of the appeal against the decision of the Inheritance Registrar regarding the appointment of a temporary estate administrator), and that the distribution of the estate should not be allowed before the assets of the estate are collected and disposed of to the creditors.
18. Weinroth's heirs, on the other hand, objected to the requests, explaining, inter alia, that "the deceased's heirs were declared and entered into his 'shoes' in all respects" (see section A of the response to the request for the appointment of permanent estate administrators). They also argued that Gertner's request to appoint a permanent executor of the estate was in fact intended to prevent the distribution of the estate to his heirs, and that this should not be allowed to Gartner, who, if they wish to prevent the division of the estate, must file "requests for temporary relief, such as foreclosures, injunctions, discovery orders, etc., in the framework of the prosecution proceeding that they have been conducting for years" (see section 7 ibid.), and that it is not appropriate to obtain such orders by indirect means of appointing an estate administrator.
19. The heirs added that they agree that "... Even without the appointment of an estate manager, an order will be issued according to which they will not act to distribute the estate, for 20 days...  In order to enable the applicants [Gartner - the undersigned], to submit any request they wish in the framework of their claim..." (see No.  102 of the Gertner Brothers' response to the motion to annul an arbitral award - "Gertner's Response").
20. In addition, as part of the response to the request to transfer the privatization, Weinroth's heirs explained that "... The procedural framework with regard to this proceeding in the matter of the deceased's estate in the Family Court is the framework of inheritance law.  Any other issue relating to the relationship between the Applicants and the deceased and/or his heirs and the theoretical entitlement of the Applicants to certain rights in relation to the estate of the deceased should be clarified in the framework of the arbitration proceeding" (see paragraph 21, No.  136 of the Gertner brothers' response).  They also added that Gartner "...  The right to act directly against the heirs, just as they could have acted against the deceased..." (ibid., at para.  22), and that "...  The heirs step into the deceased's shoes for all intents and purposes, including with regard to the arbitration process...  The applicants [Gertner - the undersigned] may, in the framework of the arbitration proceeding, try to obtain any necessary interim relief" (para.  31 at 141 ibid.).
21. Even during the hearing held on the matter in the Family Court, Weinroth's heirs insisted that the request to appoint an estate administrator was intended to delay the distribution of the estate, instead of filing appropriate motions to prevent the distribution, to the extent that Gertner wished to do so (see, inter alia, at p. 10 and p.  16 of the minutes of the family court hearing).  This is in contrast to the desire of the heirs to bring about a rapid division of the estate.
22. Weinroth's heirs also expressed strong opposition to the review of the details of the estate that was submitted. Among other things, they argued that Gartner had no right to know the extent of the deceased's assets, just as they did not have the right to do so while he was still alive, and that the door was open for Gartner to file motions on the matter in the ongoing legal proceedings.  In this regard, they emphasized their right to privacy and "their right ...  not to disclose the status of the assets inherited from the deceased's estate to any third party" (paragraph 27, No.  137 of Gertner's response).
23. In a Family Court judgment of October 28, 2019, Gertner's requests to appoint permanent estate administrators and to review the details of the estate were rejected. The court explained that "the way to bring about a delay in the distribution of the estate is not to appoint an estate administrator who will wait until insufficient for a decision in the arbitration proceeding - and whose termination according to the parties is not in sight - but by means of moves and orders in the framework of that arbitration proceeding." He also noted that there is "the importance of dividing the estate into the hands of the heirs as soon as it is feasible" (section 34).
24. The court further explained that "... There is no necessity or obligation that applies to heirs that an estate administrator be appointed...  ..  In light of the provisions of the applicable law regarding the management and distribution of an estate by the heirs themselves in accordance with the provisions of sections 121-125 of the Inheritance Law, and the liability of the heirs for the debts of the estate in accordance with the provisions of sections 126-134 of the Inheritance Law" (section 41).
25. It can therefore be said that at least from what emerges from the proceedings in the Family Court, the clear intention of the deceased's heirs was to enable a speedy division of the estate into their hands, and therefore they strongly opposed the appointment of an estate administrator for the estate, which they saw as a step intended to prevent indirect distribution. They objected to providing details regarding the scope of the estate on the grounds that Gartner had no right to do so.  They also pointed out that insofar as Gartner wishes to prevent the division of the estate or to receive any other remedy, they can take steps in this regard within the framework of the arbitration proceeding, which has not been done.  The court, for its part, did not see fit to prevent the division of the estate in light of the pending arbitration claim, while pointing to the provisions of the Inheritance Law, 5725-1965 (the "Inheritance Law") regarding the liability of heirs and the debts of the estate.  He also rejected the request to review the details of the estate that was submitted.
26. Shortly before the Family Court's ruling, a hearing was held before the arbitrator (President (Ret.) Goren, regarding the advancement of the case after the death of the deceased, on October 24, 2019. At the aforesaid hearing, it was explained to the arbitrator that at the said stage a proceeding regarding the appointment of an estate administrator was pending in the Family Court, but he was asked to proceed with the proceeding nevertheless (at this stage with the consent of the temporary estate managers), and while Weinroth's heirs explained that in any case in their opinion this situation would not take long, since it is expected in their view that the court will not grant the request for the appointment of a permanent estate administrator.  In this framework, the following dialogue procedure was conducted between the arbitrator, and Mr. Dov Weinroth (one of the heirs) (emphasis added):

"D.  Weinroth: ...  The court's position was clear, and so we are waiting for a decision in the coming days that must be made, that apparently there will be no permanent estate administrator for this story...