The Supreme Court's current approach to the interpretation of jurisdictional clauses - a strict approach that requires a clear and clear statement that all disputes between the parties will be clarified in the foreign forum so that the stipulation will be considered unique
- The question of how foreign jurisdiction clauses should be interpreted has preoccupied the courts in our places for decades. Thus, for example, other municipal applications were determined 8835/99 Interdeco Trading Company for Industries in a tax appeal v. Sulzer Brothers Ltd., IsrSC 55(2) 378, 382 (2001)) (hereinafter: the Interdeco case) that "the essence of a jurisdictional stipulation, whether it is unique, if parallel, must be sought primarily from the language of the provision. Where the language of the stipulation is unclear, the court tends to use the purpose and purpose of the provision while tracing the intention of the parties to the agreement." It was further determined in the same case that an overly emphatic linguistic approach should not be taken in this matter. "The case law also determined that this approach does not require excessive rigidity, and that sometimes it is possible to deduce the existence of a unique jurisdiction clause from the purpose of the provision or from the agreement in which it is included, despite the absence of a decisive formulation of exclusivity" (ibid., at p. 383).
However, as the Honorable Justice Sohlberg showed, as described at the time, Sohlberg can be found in the Supreme Court's rulings different approaches to the interpretation of jurisdictional stipulations (the Lagziel case, in paragraphs 3 onwards of his opinion). In contrast to the softened approach in the Interdeco case, one can find a more older and more precise ruling. Thus, other Municipality Applications 724/85 Mano Passenger Lines in the Tax Appeal v. Dimri, IsrSC 42(3) 324, 327 (1988) (hereinafter: the Mano case), the Honorable President Shamgar ruled that "a foreign jurisdiction clause must be explicit... Anyone who wishes to deny the other party the right to litigate in an authorized forum should express this explicitly and clearly in the wording of the contract."
- As is well known, in the meantime there have been developments in the laws of contract interpretation in our places, and these also reflect on questions of interpretation of jurisdictional clauses. The weight of the language in the interpretive proceeding in relation to certain business contracts has increased (Civil Appeal 7649/18 Bibi Dirt Roads and Development in the Tax Appeal v. Israel Railways (published in the Databases [Nevo]; 2019)), and to the extent that the jurisdiction clause is found in such agreements, the weight of the language also increases in relation to its interpretation.
This was explained in the case of Lagziel, where the Honorable Justice Stein noted, with respect to the stipulation that was under examination in that case, that "the language of the foreign jurisdiction stipulation is clear and clear, and there is no - and in any case there cannot be - any dispute as to its interpretation. Of particular importance is given to the language where we are dealing with a contract between two sophisticated business parties that does not raise any interpretive difficulty or to the buyer" (ibid., at paragraph 13). It should be added that when it comes to the interpretation of international commercial contracts, one must take into account the rules of "the special interpretation that apply to the interpretation of foreign jurisdiction clauses - rules that advocate linguistic-specific interpretation in order to establish certainty in matters of international trade" (ibid.).