However,in my opinion, there is doubt as to whether this evidentiary rule has good force in relation to the law that comes from the Anglo-American world, which is accessible to the Israeli jurist, when the English language is supposed to be accessible to him. The birth of the evidentiary rule in common law, whose judges had no access to foreign law. Therefore, its purpose is weakened when it comes to laws that the judge in the local forum can familiarize himself with, in accordance with the expected general professional standard. Such are the laws that come to us in the English language.
Against this background, Waki points out that "there is an argument that it is doubtful whether this justification is valid today, when the courts are able to conduct comparative research and get to know foreign law without special effort. It is certainly not possible to compel the court to conduct research on the foreign law in order to be able to view it as judicial knowledge. However, it is possible to allow the court to investigate the foreign law and leave it with the discretion of when it is appropriate to do so and when to allow the proof of the foreign law by the usual means of proof. The discretion will be exercised, inter alia, in view of the importance of proving the foreign law in the circumstances of the case" (Yaniv Vaki Law of Evidence 555 (Vol. 1; 2020). Therefore, it is doubtful in my opinion whether there is a sweeping requirement to establish English law, for example, using an expert opinion in any case and in every situation. Its use can certainly contribute, but it is not clear whether it is necessary, as opposed to the parties' referralsto the foreign law itself.
It seems that there is a difference in this matter whether it is a matter of turning to a foreign law for the conduct of a comparative trial for inspiration, or when it is a matter that directly and closely relates to the dispute and the dispute that needs to be decided. Vaki explains that "a distinction must be made between where the foreign law has operative effect in the case at hand - due to the fact that it applies to an action that has occurred or is about to take place (including with regard to the very question of its applicability) and is the object of the trial - and the use of the comparative law as 'inspiration' only, in which case it is not required to be proved by evidence" (ibid., supra note 87).
- And in the circumstances of the present case, English law It is not required for comparative inspiration. It applies to the contract in dispute. It applies to his interpretation. Hence, the party seeking to rely on it is required to present an exhaustive basis in order to substantiate its claims in relation to this law, and to rely on them.
The parties in our case did not do so. In her response, the plaintiff referred to many Israeli judgments, and only to them. As for the defendant, she referred to about 15 judgments in her motion for summary dismissal, and to about 9 judgments in the completion of her argument. They are all Israelis. Andone paragraph in the motion for dismissal was devoted to the establishment of English law (paragraph 24), where the defendant referred to Avraham-Giller's book, and noted in her motion (ibid.) that "in accordance with English law, where the parties have agreed, within the framework of an agreement, regarding the law applicable to the engagement between them, and in addition have granted jurisdiction to the courts in that country where such agreed law applies, the jurisdiction clause should be interpreted as a unique clause." Such a reference is not enough. The customary ruling that establishes it should have been presented. The circumstances on which it is based will be given so that it will be possible to examine whether they are similar to our case or not, and so on and so forth. This was not done, and instead the main effort was devoted, as stated, to substantiating its claims in accordance with Israeli law.