[See also: Discussion (National) 55/3-125 Discussion (National) 55/3-125 Alon Ben Dor v. Meir Julius, [published in Nevo] 29 (1) 286 (1996), 29 (1) 286 (1996); Labor Appeal (National) 163/06 Sarah Eichstein - Holon Fire Cities Association, Bat Yam, Azor, in Tax Appeal [published in Nevo] (July 1, 2008); Smadar Ottolengi Arbitration - Law and Procedure , Vol. 2, pp. 1167-1168 (4th edition, 2005)].
- As stated, one of the cases that the tribunal will consider to be a "special circumstance" that justifies an exception to the rule whereby an arbitrator is not authorized to adjudicate on rights originating in protective legislation is the raising of the claim of lack of jurisdiction retroactively, after the completion of the arbitration process and the rendering of a decision. Such conduct, in which a party holds the claim of lack of jurisdiction as a "trump card", which it can "pull" insofar as the outcome of the arbitration is not to its liking, creates precludes that party from making use of this claim. Thus, the principle of preclude is intended to prevent the abuse of the provisions of the law.
- It has not escaped our notice that in our case it was claimed that the group raised the claim of lack of jurisdiction before the arbitrator, but a review of the arbitration minutes (Appendix C to the motion for annulment) shows that this is not at all the same proceeding in which it was raised before us. From the attached transcript, to which the group was indeed a party and indeed hearings were held on the same day (November 11, 2019) and before the same arbitrator, it appears that the claim of lack of jurisdiction was raised in the proceeding numbered 50-19/20 in the case that was conducted between the class and Mr. Zion Zemach, and not against the applicant here (whose proceeding number in the arbitration as it appears from the documents was 19-49.20).
In a parenthetical article and in an examination of what is more than necessary, we note that the wording of the statement in any case indicates that this is a claim that was neglected or was merely argued in the first place, since all that was written by Adv. Hindawi there was (emphasis added): "We did not file a motion for dismissal in limine due to the lack of the arbitrator's authority to discuss labor laws, because there was a request to dissolve the association and we waited, and in light of that, the appendix to the agreement is valid and would have been the same if it had been placed in the transfer of the place of discussion to work."
- Therefore, we are of the opinion that there is a reason for a defect in raising a sweeping claim of the lack of authority of the arbitrator when it comes to the managing group, as appears from the minutes and proceedings that it itself mentioned, many proceedings before arbitration of the Association, only after receiving the results of the arbitration award and after it has been ruled in its obligation. Moreover, we should not ignore the fact that the class filed the motion for annulment after the expiration of the date set in the Arbitration Law for filing a motion for annulment (even if we accept the argument that the award was given on April 12, 2020, and not as written on April 2, 2020, and was served to it on a date that was not specified in May 2020), and more than a month after the motion for approval was filed on behalf of the applicant, and without noting that a process for approval had already been opened in this regard. This conduct also precludes the raising of a claim of lack of authority and justifies the rejection of the request for cancellation.
- For our purposes, the words that were written not long ago by the transfer of the national hearing in the Labor Appeal (National) 29856-11-18 Oren Simanyan - Israel Football Association - Union Yam [published in Nevo] (July 28, 2019), on a similar matter, as follows: "There is a difficulty in a situation in which the appellant, knowing the procedural 'rules of the game', chooses to attack them after the 'result of the game' has been decided in his obligation. [See and compare also: Labor Appeal (National) 234/08 Religious Council - Regional Rabbinate - Merom HaGalil - Rabbi David Elbaz [published in Nevo] (August 16, 2009)].
- As to the Applicant's request for compensation from the date of the arbitration award (Minutes of the Hearing of November 30, 2020, p. 2, S. 21), we wish to clarify as follows.
First, it is doubtful whether the court is authorized to award compensation to Helena after the judgment was rendered [Labor Appeal (National) 1504/02 Nissim Adika - Cafe Nava - Anis Saleh Bisharat [published in Nevo] (3 January 2006); ADAM (National) 1009/04 Victoria Swirsky vs . Raisa Lerner [published in Nevo] (25.10.06)]. In our opinion, this doubt should be applied even more strongly with respect to the imposition of Helena damages in an application for approval of an arbitral award.