For others outside of Designated Countries, including those who live outside of the United States: You and LinkedIn agree that the laws of the state of California, U.S.A, excluding its conflict of laws rules, shall exclusively govern relating to this Contract and / or the Services. You and LinkedIn both agree that all claims and disputes can be litigated only in the federal or state courts of Santa Clara County, California, U.S.A, and you and LinkedIn each agree to personal jurisdiction in those courts.
- Thus, while the subtitle of the section is not clear and it can be understood from it that there may be a number of possibilities with respect to the law that will apply to disputes that may arise between the parties, the content of the clause itself clearly indicates that its intention was to determine that only the law of the State of California will apply to users residing outside the designated states specified in the agreement.
In these circumstances, it appears that despite the apparent ambiguity of the subheading, the clause itself is quite clear and it can be concluded that its intention was to apply the law of the State of California exclusively to any dispute or dispute that may arise between the parties.
In any event, as I will detail below, I found that in the circumstances of our case, there is no room to decide at this stage what is the law that applies to the proceeding, and it is possible to suffice with the conclusion that there is a reasonable possibility that Israeli law will apply and the question of the applicable law will be clarified and decided later in the proceeding. In these circumstances, I have also not found room to decide between the interpretations of the parties with respect to the choice of law clause.
Applicable Law
- The question of whether a choice of law stipulated in a uniform contract is considered a discriminatory condition by virtue of the fact that, regardless of the content of the foreign law, has known a development in case law. In the Civil Appeal Authority 5860/16 Facebook Inc v. Ben Hamo [Nevo] (May 31, 2018) (hereinafter: the Matter Ben Hamo) The Supreme Court legalized A choice of law clause by Facebook, which applied California law. In a judgment given a few years later in the טרוים מילר The Supreme Court, by a majority opinion, struck down the exact same stipulation as a discriminatory condition. The question of the relationship between the two rulings sparked quite a few rulings, until the Supreme Court's ruling on the matter was given Agoda, in which it was held, by a majority opinion, that the Ben Hamo It will not apply to the concrete rights of small customers (private consumers and small businesses) vis-à-vis global corporations (paragraph 76 of the judgment of Justice Grosskopf). This is how the new halacha was summarized (ibid., paragraph 77):
"The rule that will apply, therefore, is that in the relationship between global corporations operating in Israel and small customers, it is not possible to stipulate the Israeli conflict of law rules by means of a choice of law stipulation included in a uniform contract. Such a stipulation is discriminatory by definition, without the client being required to prove that the foreign law itself is discriminatory. Therefore, it is liable to be disqualified."