Summary of the parties' arguments
- In their application, the applicants reviewed at length the factual basis underlying the application and the circumstances that led to the outbreak of the dispute between the parties. With regard to the decision that is the subject of the appeal, there is a valid arbitration agreement between the parties, and in the absence of the identity of the arbitrator, there is no point in the defect, since there is a mechanism in the agreement for appointing an arbitrator. The court's ruling that the title of the arbitration clause is required to be a "deed of arbitration" as a condition for its recognition as such is contrary to case law. It was also argued that respondent 5 is subject to the arbitration agreement even though it did not sign it in accordance with the interpretation of the agreement and the circumstances of the case. It should be noted that an affidavit was attached to the request of the appellate leave and it also included various pieces of evidence that were not included in the proceedings that took place in the District Court, but in view of the result I reached, I did not see room to address the question of their joining.
- On the other hand, according to the position of respondents 1-3, the application should be dismissed out of hand due to the addition of evidence and a new affidavit at the stage of the appeal. It was also argued that in view of the arguments raised by the Applicants against the arbitration agreement and its validity in proceedings conducted in the Magistrate's Court and concealed from the District Court, they are now silenced from claiming its existence or rights by virtue of it. The purpose of the entire proceeding is to circumvent the mechanism in the arbitration agreement for the appointment of an arbitrator in order to bring about the appointment of Rabbi Perkowitz in contravention of the provisions of the agreement. Moreover, there are also various flaws in the arbitration proceeding conducted by him: his decision was not sent to respondents 1-3; He ignored the proceedings between the parties in the Magistrate's Court; and in the arbitration proceeding, no statement of claim was filed in contravention of the provisions of section 16 of the Law. Finally, the decision that is the subject of the appeal was given on the basis of factual determinations and is therefore firmly rooted in the circumstances of the case. In light of the aforesaid, the application does not meet the strict criteria for granting leave to appeal.
- According to the position of respondents 4-6, the application should be dismissed out of hand. The application contains new arguments that were not raised in the proceedings that were conducted in the District Court, and new evidentiary material was attached to it. The application on its merits should also be rejected, since the applicants had argued in previous proceedings against the validity of the arbitration clause and therefore they are currently silenced from raising arguments by virtue of it.
Discussion and Decision
- Although the District Court's approach is not similar to mine, I found that the motion should be dismissed. As is well known, intervention in decisions under Section 16 ofthe Arbitration Law will be subject to the stringent conditions set for granting leave to appeal in arbitration matters. Accordingly, leave to appeal will be granted only in exceptional cases that raise questions of principle, legal or public, or where intervention is required for considerations of justice or the prevention of miscarriage of justice (Civil Appeal Authority 5860/23 Brisk v. Green, para. 8 [Nevo] (August 2, 2023); Civil Appeal Authority 9212/20 Bulge v. Folman, para. 7 [Nevo] (January 7, 2021); Civil Appeal Authority 7055/18 Khan Ayelet in Tax Appeal v. Ganei David Ltd., para. 6 [Nevo] (December 5, 2018)).
- Section 16(a)(5) ofthe Arbitration Law, "Auxiliary Powers of the Court", states as follows:
(a) In the following matters, the court has the powers to grant relief in respect of an action filed before it: