With regard to the test of maximum affinity, the Supreme Court recently emphasized in the Office Textile case, that the court examining the issue of the adequacy of the forum has broad discretion and is entitled to examine a variety of factors relating to the connection of the claim in question to the forum under consideration, the efficiency of the conduct of the proceeding, and the interests that the forums themselves have in discussing the proceeding (paragraph 18 and the references therein).
As to the test of the reasonable expectations of the parties, it was determined that this test derives from the rationale that constitutes a solid foundation in our legal system, according to which the plaintiff is "the master of his claim" and is entitled to shape the framework of the claim in all its various aspects, including the forum in which it will be filed. Case law has often noted that in accordance with this rationale, entities operating in various countries take into account that there are risks involved, including the possibility of being sued in the countries in which they operate (Office Textiles, para. 19; The Jacobson case at paragraph 37; Civil Appeal 9725/04 Ashburn Agencies and Trading Company in Tax Appeal v. CAE Electronics Ltd (4/9/07); Civil Appeal Authority 5318/18 Unibin Resourcer Ltd. v. Meroz (16/1/19)).
In examining the public considerations, the court must examine whether there are public considerations that tip the scales in favor of holding the litigation in the Israeli forum or in the foreign forum.
- To complete the picture, it should be noted that the case law distinguishes between a situation in which the plaintiff requests an invention permit outside the jurisdiction, and then he bears the burden of proving that the local forum is the proper forum, and a situation in which authority has already been acquired by virtue of an invention within the jurisdiction - as in our case, and then it is the defendant who must prove clearly and distinctly that the local forum is improper (see Office Textiles, In paragraph 15; Civil Appeal 3999/12 Elzer in Tax Appeal v. LINAK A/S, para. 20 (2014); Civil Appeal 3908/08 Tax Appeal Draw v. FOREM BAGCO INC., paragraph 17 (26/8/10); Civil Appeal Authority 1739/17Flacks v. Bisk (31/12/17)).
From the general to the individual:
- I will preface the beginning, after reviewing the application, the reply, the response to the reply, as well as the response to the response, I have come to the conclusion that the application should be rejected. This is because I have not found that the defendants have succeeded in lifting the burden and proving that the Israeli forum is improper.
- Thus and first, the application of the test of maximum affinities in our case leads to the conclusion that there is no single natural forum that has a "natural" connection to the matter, but rather that there are connections to Israel, the United States and Gibraltar. In this context, it should be noted that most of the communication between the parties was made via WhatsApp and Zoom calls , and that no written agreement was entered into between the parties. Therefore, on the face of it, there is no clear written evidence (such as an agreement) that teaches an affinity to one forum over another.
In more detail, with regard to the existing ties to the State of Israel, the plaintiffs and defendant 1 are Israeli citizens; the correspondence between the parties took place when the plaintiffs were in Israel and in Hebrew, the ZOOM conversation of April 11, 2022 with other investors took place in Hebrew; and the investment funds were transferred from Israel. At the same time, there are also connections to the United States - given that defendant 1 has been living in the United States for many years and is operating from there (in a parenthetical article, I will note that the defendant's status in the United States has not been clarified - i.e., whether his residency is lawful or not); Defendant 2 is an American company; The correspondence in the WhatsApp group with all the investors took place in English and while defendant 1 was in the United States; The planned solar farm was to be built in the state of Arkansas in the United States; The new coin was to be issued or manufactured in the United States; Finally, there are also ties to Gibraltar - given that defendant 3 is a company registered in Gibraltar; all regulatory approvals were given in Gibraltar; and the new currency was issued there. To this it should be added that on the face of it, in view of the fact that the companies are foreign companies, it is possible that a condition for imposing liability on their behalf will be conditioned on the determination of the foreign law that applies to them, and this too can be seen as a connection that is not related to Israel.