If the final result of theapplication for leave to appeal is that the appeal is not accepted, or leave to appeal is not granted, then the dispute of ownership and management will be regarded as a dispute in which the hearing has not yet begun, and it will begin from the beginning."
- In his decision of August 18, 2004, Arbitrator Ziller rejected the request for leave to appeal, and noted that even if he had granted leave to appeal, he would have rejected the appeal, accepting Justice Okun's conclusion that Arbitrator Bezalel's decision was only an interim decision.
- The Sassi Group submitted a statement of claim to the arbitrator Ziller (which was amended several times), in which Mr. Yona was sued for a total sum of approximately ILS 14 million, which it was claimed that Mr. Yona must deposit in the soccer team's account. The statement of claim included harsh allegations against Mr. Yona, including breach of trust, taking money due to the team, and the like. The main argument in the statement of claim was that Mr. Yona did not act in a manner that required his duty to ensure the proper management of the football team in the financial field. It was also claimed that Mr. Yona used the funds that constituted income from the soccer team to repay personal debts of himself or his family members.
- Mr. Yona denied the allegations against him, and asked Arbitrator Ziller to determine that he was entitled to half of the ownership and management rights in the group.
- On May 1, 2006, Mr. Yona filed an injunction with the Jerusalem District Court, in which he sought to order that the ownership and management rights in the soccer team belong to him exclusively. With the consent of the applicant's counsel, it was decided to freeze the hearing on the opening motion, until the decision of Arbitrator Ziller was rendered.
- On December 11, 2006, the decision of Arbitrator Ziller was rendered. With regard to the issue of ownership of the soccer team, Arbitrator Ziller ruled that in the relevant year Mr. Yona fulfilled the task assigned to him under the management agreement, i.e., to bring about a budgetary balance. Therefore, Arbitrator Ziller ruled, Mr. Yona is entitled to 50% of the ownership of the soccer team. As far as the financial claims of the Sassi Group are concerned, arbitrator Ziller accepted part of them, and rejected another part. With regard to the claim for the provision of accounts, the arbitrator accepted the position of the Sassi Group, and ordered Mr. Yona "to provide in an affidavit full and accurate accounts that will accurately reflect and together with references all receipts... that were intended for the soccer team and its surroundings, for a period beginning at the time of the signing of the 1996 agreement and ending at the end of December 2006." If they also give of their own free will, a similar affidavit. I cannot issue such an order in their case because I do not have a lawsuit or petition against them."
- Following the decision of Arbitrator Ziller, the Sassi Group filed a motion to affirm the arbitrator's award of Arbitrator Ziller (hereinafter: Arbitrator Ziller's Award); Mr. Yona, on the other hand, filed a motion to confirm the arbitrator's award of Arbitrator Bezalel (hereinafter: Arbitrator's Award Bezalel) and annul the award of Arbitrator Ziller.
The Trial Court's Decision
- The District Court rejected Mr. Yona's request to annul the Ziller arbitrator's award and to approve the Bezalel arbitrator's award, while the Sassi Group's request to approve the Ziller arbitrator's award was granted.
- The trial court rejected the Applicant's claim that Arbitrator Ziller acted impartially towards Mr. Yona, by assisting the Sassi Group counsel and "almost advising" him on how to draft the amended statement of claim, noting that the opposite is true, and that the arbitration award contains very strong comments against the lack of skill of the Sassi Group counsel, insofar as it is a matter of formulating a defined line of filing a claim. This cannot be seen as bias towards the applicant, but perhaps the opposite.
- The trial court also rejected the argument that Mr. Yona was not given the opportunity to bring witnesses and evidence, noting that claims against the arbitrator's personality and the ways in which he acted during the arbitration should be raised at the first opportunity, and that these arguments should not be waited with and raised before the court in accordance with the results of the arbitration award. On the merits of the matter, the trial court ruled that Mr. Yona had many opportunities to present his evidence to the arbitrator but he did not take advantage of it, and the arbitrator is entitled to set a date for the submission of evidence and the hearing of witnesses, and anyone who does not meet the allotted deadlines will not be heard on the claim as if he was deprived.
- As to the Applicant's argument that Arbitrator Ziller's decision, which deals with an order to provide accounts, is a "different decision" and not an "arbitral award", since it is expected to be followed by an operative action ordering payment, the trial court ruled that Arbitrator Ziller's award is complete and complete on the face of it, and there is no need for supplements or additions. This is especially true in light of the statement of the Sassi Group's counsel that his clients do not intend to seek any additional relief.
- As to the status of the arbitrator's decision, the trial court noted that there is no dispute that it was not approved by Judge Okun, and this means that "we do not have before us a judgment of the arbitrator, Justice Bezalel."
The Applicant's arguments in the application for leave to appeal before me
- In the application for leave to appeal before me, the applicant raises various arguments, which can be divided into three main groups: one group of arguments relates to a contradiction between the arbitrator's award in Bezalel, according to which full ownership of the soccer team should be transferred to the applicant, and the award of arbitrator Ziller, according to which half of the rights in the team are due to the applicant. A second group of arguments relates to the question of whether the arbitrator Ziller's award is a "different decision", as the Applicant claims, in which case it cannot be approved as an arbitration award, or whether it is a complete "arbitration award". A third group of arguments relates to the Applicant's objections regarding the manner in which Arbitrator Ziller conducted himself during the arbitration.
- The Applicant further argues that it is appropriate to grant leave to appeal in the present case, since the question at hand, i.e., who is entitled to be declared the owner of the ownership and management rights of the soccer team, is important to a large group of fans, and beyond that, the application, according to him, raises very important legal questions.
Discussion and Decision
- As is well known, the authority to appeal a court decision according to Arbitration Law, 5728-1968 (hereinafter: Arbitration Law) is not given as a matter of routine. It is reserved only for exceptional cases, in which a special question of a legal or public nature arises that deviates from the defined interest of the parties to the dispute, or when intervention is required for considerations of justice and the prevention of miscarriage of justice [Civil Appeal Authority 3505/00 Ram Company for Engineering Works, Construction and Breakwaters in a Tax Appeal vs. Sorek Brothers in a Tax Appeal ([Published in Nevo], 11.7.2000); Civil Appeal Authority 8595/99 Orchid Hotel in Tax Appeal v. Mordechai Minuskin ([Published in Nevo], 6.9.2000); Civil Appeal Authority 5097/06 Golden Channels & Co. v. D.S.T. Holdings inTax Appeal ([Published in Nevo], 11.7.2006)].
- I did not find that in the circumstances of the case, the conditions for granting leave to appeal against a decision of a court in arbitration matters are met. The application does not raise any question of legal or public importance that justifies a "third incarnation" hearing. On the merits of the matter as well, the Applicant's arguments should be rejected, and I will briefly detail my reasons below.
- The motion to certify the arbitrator's award in Bezalel: I am of the opinion that the trial court rightly did not grant the request to confirm the arbitrator's award in Bezalel. As noted above, Judge Okun ruled that the arbitrator's decision in Bezalel is a "different decision" and not an "arbitral award" and therefore rejected Mr. Yona's request to approve the arbitrator's award. An application for leave to appeal this decision was rejected by Arbitrator Ziller, and therefore Judge Okun's decision is within the scope of A Final Decision, as the Applicant himself points out. It is therefore clear that the Applicant cannot once again request the approval of the arbitrator's award in Bezalel, after such a request was rejected in the past.
- Moreover, as stated above, at the first arbitration meeting held before Arbitrator Ziller, the parties agreed that if the application for leave to appeal against Judge Okun's decision is rejected, the discussion of the question of ownership and management of the class will begin from the outset. In other words, in this way, the parties in effect agreed on the invalidity of the arbitrator's award in Bezalel, with regard to the question of ownership and management of the group. The Applicant cannot retract this consent now, since he does not like the decision of Arbitrator Ziller.
It should be noted that the very transfer of the authority to hear an application for leave to appeal the decision of the District Court to the arbitrator appears to be problematic; However, in the circumstances of the case, in light of the fact that the parties agreed that the questions of ownership and management would be discussed in the first place, and since the application was rejected in any case, I did not see fit to dwell on this point.
- In light of the parties' agreement, as stated, arbitrator's award remains meaningless. With regard to the arbitrator's award, two main questions arise in this regard: one, whether we are dealing with a "different decision" or perhaps a final arbitral award, and second, whether there is a reason for annulling the award according to Section 24(4) 30Arbitration Law.
- Arbitral award or other decision: The distinction between "other decision" and "judgment" of a court has also been adopted with regard to the distinction between an arbitrator's "other decision" and a final or partial "arbitral award" [Civil Appeal Authority 8092/02 Aloni v. Tikva, IsrSC 57(1) 740, 743 (2002) (hereinafter: Aloni v. Tikva)]. The test set in this regard is whether the decision concludes the hearing of the question brought before the arbitrator, i.e., whether in any part of the litigation the plaintiff received the final relief he requested or part of it or was deprived of it [Civil Appeal 6058/93 Mandelblit v. Mandelblit, IsrSC 51(4) 354, 363 (1997) (hereinafter: Mandelblit v. Mandelblit); Aloni v. Tikva (p. 743)]
- In our case, the Applicant argues that the decision on the question of the provision of the accounts is not a decision in complete dispute and has an independent existence, but only as an intermediate stage on the way to the final decision on the financial relief requested, on the basis of those accounts that were received.
- This claim is inaccurate. First, the case law held that a claim for the provision of accounts may have an independent existence even without the financial relief required on its side [Civil Appeal 28/85 Development of Yehuda in Tax Appeal v. Estate of the Late Yehuda Hiss, Piskei Din 40(1) 78, 80 (1986); Civil Appeal Authority 9710/04 Ora Moshav Workers for Cooperative Agricultural Settlement in Tax Appeal v. Belsky ([Published in Nevo], 11.1.2005)]. Second, it was determined that indeed an action for the provision of accounts is conducted in two stages, but the two stages in question constitute the remedy for the provision of accounts itself. Only after these two stages does it become the turn of a monetary claim [Civil Appeal 127/95 Fruit Production and Marketing Council v. Mehadrin Ltd., Piskei Din 51(4) 337, 344 (1997)]. In other words, it is not necessary that a remedy for the provision of accounts will be an "intermediary" remedy on the way to a monetary claim, but it is possible that such a remedy will stand on its own.
- A perusal of the amended statement of claim submitted by the respondents to the arbitrator Ziller shows that prima facie the respondents were not satisfied with the remedy of providing accounts only, but added monetary relief to it. In his decision, Arbitrator Ziller instructed the Applicant to provide in the affidavit full accounts, as detailed above, and did not grant the financial relief that may naturally come only after examining the accounts that will be given in the affidavit. The arbitrator also added that "the final clarification is open to clarification and a decision in the process of providing accounts and in any subsequent proceeding that follows" (p. 36 of the arbitration award). Ostensibly, therefore, this is a decision that did not close the door on the full relief requested by the respondents in the statement of claim. I said it only prima facie, since, as emerges from the judgment of the trial court, the respondents in fact waived that "additional" remedy, i.e., the monetary relief that could and would arise after the accounts were given. See p. 148, paragraph 37 of the judgment of the trial court:
"... He [the respondents' counsel - Y.D.] stated to me once and twice that he does not intend to seek further relief."
- In these circumstances, I am of the opinion that the trial court rightly ruled that we are dealing with a final and complete decision of Arbitrator Ziller, and therefore it could have been approved as a final arbitrator's award.
- Grounds for cancellation according to Section 24(4) To the Arbitration Law: In this matter as well, I did not find room to intervene in the ruling of the trial court. The court rejected this argument both on its merits, i.e., after examining and finding on the basis of the evidence before it that the applicant was given a number of opportunities to bring witnesses and evidence before the arbitrator, and also because this argument was raised very late, and only after the applicant found that the arbitrator's award was inconsistent with his wishes. There is no room to intervene in any of the rulings of the trial court on this issue.
- In light of the above, the request for leave to appeal should be rejected, even without the need to receive the respondents' response. In the circumstances of the case, there is no order for costs.
Granted today, 31 August 2008.