As for the burden of proof: "The plaintiff, who is applying for a permit to invent outside the jurisdiction, bears the burden of proving that the local forum is the proper forum. On the other hand, in the context of the acquisition of authority by virtue of invention within the jurisdiction, it is the defendant who had to prove clearly and distinctly that the local forum is improper" (Civil Appeal 2547/23 Office Textiles in Tax Appeal v . Broklinen Inc Delaware co 5469940 (published in Databases [Nevo]; 2023; in paragraph 15 of the judgment of the Honorable Justice Kabub).
In the present case, the invention was made within the jurisdiction, and hence the burden is on the defendant to establish that the Israeli forum is improper to address the dispute.
- As part of the examination of the claim, the court must consider a wide range of considerations, all of which come to prevent an unjust result whereby the Israeli forum will discuss a dispute that should have been clarified elsewhere (Talia Confino, Minister of Jurisdiction over a Defendant Stranger 28 (2000)). On the agenda Therefore Public and private considerations, considerations of substance and considerations of convenience (Wasserstein Fassberg, at p. 418).
Among the various considerations, it is necessary to examine the existing links between the conflict and the Israeli Forum. From a substantive point of view, there is relevance to the choice of law that will apply to the dispute. It is necessary to examine whether the foreign forum has a clearer interest in discussing it, since it touches on issues about which the foreign legal system shows more interest than the Israeli forum. In this context, it is possible to examine whether the parties had a reasonable expectation to clarify the dispute between them in the local or foreign forum.
It is also necessary to examine where it will be more convenient to clarify the dispute, in terms of the location of the witnesses, the parties, etc. Still, "since when a court in Israel has jurisdiction, it is not supposed to casually waive it. Therefore, this question is not decided on the basis of a mere balance of convenience" (Talia Einhorn, Private and Interreligious International Law in Israel 543 (2023)). Procedural good faith considerations are also on the agenda.
- And what about us?
As may be recalled, the plaintiff claims that most of the connections lead to England. Spirnet is a foreign defendant, incorporated in England and traded on the London Stock Exchange; the applicable law is English law, the plaintiff's officers are foreigners, most of whom reside in England, and hence the relevant witnesses live in England, the agreement was drafted in England, its language is English, and the correspondence in its matter was made in English.