Against this background, the Honorable Justice Sohlberg followed the outline paved by the Honorable President Shamgar in the Mano case. And his approach became the binding halakha. This is because the Honorable Justice Mintz joined his position in principle with respect to the interpretation of the foreign jurisdiction clauses (see paragraph 1 of his opinion), although he disagreed with him on the question of whether the stipulation in dispute applies to the appellant in that case.
According to what law should the jurisdiction clause be interpreted? The Relationship between the Law of the Contract and the Law of the Forum
31. So far, I have discussed the position of Israeli law regarding the interpretation of foreign jurisdiction clauses. However, it is not so obvious that local law is the one that should settle the dispute. This is because the interpretive issue is governed by the laws of our private international law. This is not an internal dispute in which all the connections lead to Israeli law. This is a dispute with foreign connections, and these cause the applicability, in appropriate cases, of the relevant foreign law to the extent that there is room to do so.
- According to the rules of choice of law that apply to us, the interpretation of the contract is governed by the law of the contract, or the law with the greatest number of connections to the engagement (Craney, at p. 225). This approach crosses seas and continents. It is accepted in the Anglo-American world, in continental law, and in international conventions (Abraham-Geller, article, at p. 175).
This unanimity between the various legal systems, which is rare, is not surprising. "... There is no dispute that in general the law of the contract (which has been identified according to the rules of choice of law in contracts) applies to all the interpretive questions of the contract, and the context in question is not an exception in this matter. After all, questions of interpretation seek to determine what the parties wanted to determine, as opposed to what they could have determined legally or what they were able to determine legally. There is no reason why the law chosen by the parties should not apply, whether explicitly or implicitly" (ibid., at pp. 177-178).
33. Applying this approach can lead to different outcomes, depending on the contract law that applies to the dispute. As Avraham-Giller shows, in many continental countries, the interpretive rule applies that the jurisdiction clauses will be considered unique, unless the parties explicitly state otherwise - in complete reversal of the case of Gaziel. Hence, the question of whether the law of Israel or the law of one of the aforementioned countries applies to the contract is of great importance.
In the realm of international treaties, the Hague Convention on Choice of Court Agreement (2005) states that "a choice of court agreement which designates the courts of one Contracting State or one or more specific courts of one Contracting State shall be deemed to be exclusive unless the parties have expressly provided otherwise" (Ibid., sec. 3(b)). In this way, it marches in accordance with what is customary in the Continent and contrary to what is customary in our country. It is interesting to note that Israel has acceded to the Convention, but it has not yet been absorbed into our internal law (Avraham-Giller, article, at p. 191).
- The contract before us stipulates that English law will apply to it. Moreover, it states that it will be interpreted in accordance with English law ("this Agreement shall be governed by and construed in accordance with the laws of England and Wales"). It turns out, in accordance with a preliminary glance at this matter, that there are substantial differences between this law and the law that is in force in our country.
It seems that the exegetical approach in England is less precise than that which is practiced in our places. "Today, the prevailing position [there]... is that decisive weight should not be attributed to the word exclusive in the jurisdiction clause or its absence. Instead, the framework contract should be interpreted as a whole and it should be understood from the circumstances of the case what was the intention of the parties regarding the jurisdiction stipulation based on the purpose of the provision, its tendencies, and the other interpretive aids" (Shahar Avraham-Giler Jurisdictional Clauses - Towards a New Model 66 (2021)) (hereinafter: Avraham-Giller).