Against this background, and as part of an improper attempt to exert pressure on the defendant, the claim was filed in the Israeli forum, while the plaintiff is well aware that she is subject to the jurisdiction clause, and must file her claim in England. Its claim that this is a parallel jurisdiction clause is unfounded.
- According to the defendant, the plaintiff understands that the jurisdiction clause is against her, and therefore she tries to raise arguments against the validity of the agreement. She raises the futile claim that the defendant signed it late and retroactively, as part of alleged bad faith conduct. However, this move will not succeed. Even before that, the plaintiff did not have exclusivity in the distribution of the defendant's products; The plaintiff herself signed the agreement and considered it binding, and her claims in the matter were raised only after the defendant announced the termination of the engagement with her. In any event, insofar as the plaintiff claims that the agreement is null and void, she can raise her arguments in the English forum.
- There is no room to accept the plaintiff's alternative argument, which seeks to cancel the agreement since it is a uniform agreement that includes a discriminatory clause. This is while both sides are large commercial entities, and the agreement was the product of lengthy negotiations. Moreover, there is no basis for the claim that violations were committed by the defendant of the Economic Competition Law.
- Alternatively, it was argued that the Israeli forum was not suitable for clarifying the dispute, but rather the English one. The test of maximum affinity leads the parties to litigate there. The fact that a distributor is incorporated in the local forum, and distributes the supplier's products here, does not necessarily make the Israeli forum appropriate. The parties were expected to litigate in England, and international etiquette also justified this.
- Finally, it was argued that the claim should be dismissed in limine when the law governing the dispute is the law of England, which is foreign law. Hence, the plaintiff must prove her claims in accordance with this law, and this is a matter of fact that needs to be proven. The plaintiff did not attach an expert opinion on foreign law, and hence even if she proves her claims, they cannot be accepted, when the position of the foreign law on the matter has not been proven.
Summary of the Respondent's Arguments, the Defendant
- The Respondent notes, first, that it acquired jurisdiction by an invention in the jurisdictionof the Spirnet Managers Forum in Israel. Against this background, the defendant has the burden of proving that the proceeding should be conducted in the foreign forum. She did not meet this burden.
- As for the jurisdiction clause, this is not a unique stipulation. It was the defendant who drafted the clause and it does not grant exclusive authority to the English Forum. Moreover, the wording clearly indicates that there is a possibility that the disputes will be heard in courts outside of England, since the stipulation states that a judgment rendered in any court will be enforceable. It is also possible to get the impression that the stipulation in dispute does not include active formulation, nor even passive formulation.
And even if it is found that this is a unique jurisdictional stipulation, the court in Israel still has the option not to enforce it. The stipulation must be examined according to Israeli law. In any event, insofar as the defendant is interested in arguing that the affair should be in accordance with English law, it did not prove this when it did not attach a reference to the said law. The defendant was the one who drafted the agreement, and therefore the faulty wording is placed at its doorstep.
- The contract in question is a uniform contract, and the jurisdiction clause in which it discriminates, insofar as it obliges the plaintiff to litigate in England. This is a uniform agreement, which is used to engage with many suppliers around the world, as indicated by the cover sheet. This is a standard form, different parts of which apply to different engagements. The fact that the negotiation procedure between the plaintiff and the defendant passes to the engagement does not change the characteristics of the agreement and its classification as uniform. Against this background, the court must determine that this is a discriminatory condition and cancel it.
- In addition, the defendant's arguments that the law that applies to the agreement is English law should be rejected. Thus, the plaintiff's claims regarding violations of the competition rules must be clarified in accordance with Israeli law. In addition, the plaintiff bases her claim on tort grounds, and according to the choice of law in torts, the relevant law for clarifying the aforementioned claims is Israeli law. The same applies to the investigation of her claims regarding commercial torts and unjust enrichment.
- As for the forum's improper claim, the Israeli forum is appropriate to discuss the issue. Most of the affinities lead to this. In addition, the parties' expectations are to litigate in Israel, and international companies should expect to litigate in the various places in the world where they operate. And the systemic considerations also support litigation in Israel.
- It was further argued that there is no basis for the argument of lack of cause. It is the defendant who must prove that English law applies. In any event, the statement of claim specifies the causes of action against the defendant. The plaintiff certainly does not abuse the court proceedings. The defendant is the one who acted and is acting improperly.
- The defendant also raises procedural reasons for which the claim should be dismissed. According to her, the defendant's claim for dismissal in limine had already been rejected in the past, and the motion was filed without a supporting affidavit.
Procedural Developments
- The parties completed an argument during the hearing of the application, in which the defendant's representatives participated in a visual conference. At the end of the hearing, I expressed my opinion that there is room to classify the stipulation as a parallel, and the parties asked for time in order to consider the matter, and to see if they could reach agreements. They also agreed that if they were unable to do so, the decision on the application would be made on the basis of the written argument, which would also include a concise completion of the argument.
The parties did not reach agreements, and each side completed its argument in writing. In this framework, the defendant requested that if her request was rejected, she would be given time to file a counterclaim. The plaintiff, for her part, objects to the filing of such a lawsuit.
- And now the time has come for a decision.
Discussion and Decision
- After reviewing the arguments of the parties and the totality of the documents before me, I found that the application should be rejected.
First, I was convinced that this was a parallel and not unique jurisdiction clause. On the agenda is a relationship between those who manufacture products and those who distribute them in Israel. A manufacturer, who markets his products around the world and conducts international business, must take into account that he will be required to litigate in the various places where his products are sold. And if he wishes to ensure that all disputes with his distributors are solved in his place of residence, he must make sure to formulate things sharply and clearly. In these matters, commercial certainty is the bread of the law, and when it is the manufacturer who drafted the contract, the burden is on him to formulate it with the necessary and necessary clarity.