In our case, the dispute between the parties in this proceeding revolved around the question of whether the existence of a cause of action has been proven at the level required for this stage of proceedings and whether the court in Israel is the appropriate forum to hear the proceeding. The burden of proving these two elements is on the applicants (Civil Appeal 2547/23 Office Textiles in Tax Appeal v. Broklinen Inc Delaware [Nevo] (December 28, 2023), hereinafter: Office Textile).
As it appears from the above, the Respondent's arguments regarding the non-fulfillment of the required conditions are based mainly on its claim regarding the law applicable to the proceeding. This is because the cause of action in the application for approval was based solely on the basis of Israeli law, so that if it is determined that foreign law applies, no basis has been laid for the existence of a cause of action; And since even the respondent's argument that the Israeli forum is not the proper forum to hear a claim is based, to a large extent, on the assumption that American law applies.
Therefore, it is necessary to first examine what is the law that applies to the proceeding. For this purpose, we must first address the Respondent's argument that this question should be examined on the basis of the state of affairs as it was in practice at the time of the filing of the application for approval, and only on the basis of the arguments and evidence already detailed in the application for certification and in the application regarding the invention.
Are the applicants entitled to rely on arguments and evidence that were not detailed in the framework of the application for approval and the application to determine the methods of invention to substantiate their claim regarding the applicable law in light of the existence of activity in Israel?
- There is no dispute that the application for approval is based on the assumption that Israeli law applies, and seeks to establish a cause of action under this law only. There is also no dispute that already in the application for approval, the Applicants raised arguments in relation to the applicable law, in view of the Choice of Law clause set forth in Section 6 of the Terms of Use, including the claim that the Israeli court is authorized to hear the proceeding and that Israeli law should be applied, taking into account the scope of LinkedIn's activity in Israel and the cogentity of the provisions of the Consumer Protection Law. It was also argued in the motion for approval that the said clause 6 should be interpreted as allowing a hearing in an Israeli court in accordance with Israeli law, and alternatively that if it is determined that the said clause establishes a choice of law clause that applies the law of the State of California, it must be determined that it constitutes a discriminatory clause in a uniform contract, and this, inter alia, on the basis of the rule טרוים מילר (The application for approval was filed before the judgment was rendered in the matter Agoda in the Supreme Court).
Notwithstanding the aforesaid, neither the motion for approval nor the motion to determine the methods of invention were attached to almost no evidence that establishes the factual foundations on which the Applicants' arguments for the applicability of Israeli law rest, and in particular none of the evidence on which the Applicants seek to rely to prove the Respondent's "activity in Israel" was attached, and which was ultimately attached to the answer to the heresy motion.