This will be relevant later in the analysis, when we will discuss the need for product distributors in Israel to operate under conditions of commercial certainty, which require a clear statement that the disputes with the manufacturer they serve will be clarified only in the foreign forum. This is required in light of the power disparities that exist between the parties. This certainty, which takes into account the aforementioned power disparities, must also find its place in the interpretive process of the jurisdiction stipulation in dispute, and it is a public interest that the local court is entrusted with promoting, in accordance with the perspective of local law.
- Therefore, it seems that the foreign contract law cannot have exclusivity in the interpretative proceeding of the foreign jurisdiction clauses. This is because, in the course of the interpretive proceeding, the court must take into account policy considerations and general public considerations relating to the perspective of the local forum. This is also the reason that in practice, and contrary to the clear and universally accepted legal rule - according to which the law of the contract (direct or presumptuous) should apply to the interpretation of the jurisdiction clauses - in many cases it is the law of the local forum that decides the dispute.
- In the circumstances of the present case, there is no room to delve into all of this, and to determine the relationship between the law of the contract and the law of the forum, since as we will immediately see the English law, Apply to the contract, It was not established by the parties to the required extent, not even by the defendant. Therefore, it is the law of the forum, Israeli law, that will serve as the basis for the decision.
I nevertheless found it necessary to dwell on the matter because theissue was not at all subject to examination and decision on the matter of Gaziel. This was discussed and decided according to Israeli law. The law of the contract there was Belgian law, but it does not appear that any of the parties in that case established it, or argued about its applicability and significance. Hence, the Lagziel case reflects the current position of Israeli law with regard to the interpretation of foreign jurisdiction clauses. Andyet, no rivets have been established in our law on the question of the relevance of the foreign contract law to the interpretative proceeding of the jurisdiction clauses, and the relationship between it and the law of the Israeli forum. It seems that there are still plots to be made on this level, and the issue could be developed in future litigation.
- We will move on to apply all of these to the condition in dispute In the proceeding before me.
The parties did not base the English law and its implications on the interpretation of the stipulation at issue
- The parties, as we have seen, disagree on the question of whether the stipulation in dispute is unique or whether it is parallel. The contract itself stipulates that English law will apply to it, and that it will be interpreted in accordance with English law. But what is the position of English law on the issue?
"As is well known, 'the law of foreign law is, for the purposes of the precedents of evidence, the law of a fact that requires proof' [...]. A party seeking to rely on a foreign law must prove it through an expert witness who will testify to the content and interpretation of that foreign law" (Civil Appeal 7884/15 Reitman v. Jiangsu Overseas Group Co. Ltd. (published in the databases [Nevo]; 2017; in paragraph 31 of the opinion of the Honorable Justice Danziger).