And thirdly, as to the argument that the foreign law has not been established, this matter can be corrected, to the extent necessary. In any event, it is relevant toclarify some of the claims raised by the plaintiff in Israeli law as well, including in relation to the claim that the agreement at issue is a discriminatory uniform agreement, or the claim regarding harm to competition. In this state of affairs, the defendant'saforesaid claim will not be able to lead to the dismissal of the entire claim in limine.
- All of these lead to the rejection of the application. I will go on to present my reasoning in more detail.
Interpretation of the jurisdiction clause at issue - it is not established that this is a unique stipulation
- The plaintiff produced the statement of claim to the defendant through her managers in Israel. There is therefore no dispute that this court acquired jurisdiction by virtue of a local invention, and hence the burden is on the defendant to prove that there is no room to clarify the claim here. This burden is also imposed on it in relation to its claim that the foreign jurisdiction clause at issue is unique and not parallel.
I will first examine the law that applies to this interpretive question, and then accuse them of the circumstances of the case.
What is the difference between a unique jurisdiction clause and a parallel? An overview of the Supreme Court's recent rulings
- A jurisdiction clause, as its name implies, comes to settle the question of the place of jurisdiction, in which the parties will be able to clarify the disputes between them. And to the extent that they find it necessary to address the subject of the agreement that governs their relationship, they are supposed to reach rest and the procedural inheritance. After all, "one of the main purposes of a jurisdictional stipulation from the point of view of the parties is to avoid the existence of litigation on the question of the proper place for litigation" (Mikhail Karini, The Effect of the Choice of Law Procedure on International Jurisdiction, 248 SC 51 (2002) (hereinafter: Karini)).
Indeed, when there is a contractual agreement on the agenda, the tendency of the courts in our places is to respect it, when we must thus distinguish between the question of jurisdiction and the question of discretion. "It is accepted in Israel that a jurisdiction clause cannot deprive Israeli courts of the authority they have. However, the courts strive to honor agreements, as well as agreements regarding jurisdiction, arbitration, and alternative dispute resolution" (Celia Wasserstein Fassberg, Private International Law, 1460 (Vol. II; 2013)).
- But hope is one thing and reality is another. In many cases, the terms of jurisdiction - themselves - constitute fertile ground for deep disputes. The litigation can be conducted, inter alia, with respect to the question of whether there were defects in their amputation; whether they have been perfected into binding provisions; What factors do they apply to; What issues do they apply to; And for our purposes - are these unique jurisdictional clauses or are they parallel.
In the case of special stipulations, the parties agreed "to discuss in the chosen forum, excluding any other forum" (ibid.); In it and only in it. In such a situation, and insofar as it is a valid consent, its enforcement should be avoided "only in the presence of special circumstances" (ibid., at p. 1461). and these special circumstances will be recognized by way of restriction (ibid., vol. 1, at p. 426; and see also Civil Appeals Authority 3144/03 Elbit Medical Imaging in a Tax Appeal v. Harefuah Servicos de Saude S/c Ltda, IsrSC 57(5) 414, 419 (2003))). On the other hand, there are the parallel stipulations that stipulate "only an additional forum in which the claim may be filed" (ibid., at p. 1461). In other words, they regulate the possibility of litigation in the forum that is the subject of the stipulations, but do not deny the parties' consent to litigate in the local forum.