The dispute between the parties as to whether and under what circumstances the presumption of rolling of damages should be recognized in Israel is also a significant dispute, which should be resolved in the framework of the main proceeding, and for the purpose of the present stage of the proceedings it is sufficient that the Applicant laid the foundation at the level of a claim worthy of an argument for the existence of this presumption.
The other arguments raised by the Respondent, including the claim regarding the value of the assemblies in relation to the total value of the finished product and the additional considerations in its pricing, are mainly relevant to the question of the extent of the damage and its rollover, and not to their very existence.
- It emerges from the compilation that despite the difficulties pointed out by the respondent, I found that the opinion attached to the motion for approval was sufficient to establish, at the level of a worthy claim, the claim that the damage caused by the cartel in which the respondent was involved to the purchasers of the assemblies (which I will mention that at this stage is not disputed) was rolled down the value chain, in whole or in part, to the final consumer in Israel. In these circumstances, and since there is no dispute that the Respondent is engaged in international trade on a considerable scale, and could have expected that the damage would be passed on to consumers who purchase the finished product in which the components for which the cartel was conducted throughout the world, including in Israel, the burden required to prove a cause of action under Regulation 166(5) has been lifted.
Existence of a cause of action
- The Respondent argued that since the Applicant based the application for approval solely on Israeli law, and since according to the prevailing rule Israeli law is not the law applicable in our case, the application for approval does not reveal grounds under the applicable law. In this context, the Respondent argued that the motion for approval is based on Item 4 of the Addendum to the Class Actions Law, which deals with a cause of action by virtue of the Competition Law, which is a tort cause, so that according to the rules of conflict of law in torts, the law of the place where the tort was committed applies. The Respondent further argued that in our case there is no dispute that the place of commission of the tort (the cartel) is outside of Israel, and that the Applicant did not try to argue, and in any case did not prove, that Israeli law should be applied by virtue of any doctrine, including, for example, by virtue of the doctrine known as the "doctrine of influences". It was also argued that even if the Applicant had claimed the applicability of this doctrine, it would not have helped him, whereas according to case law, this doctrine would apply only when a number of conditions are met, including the effect on competition in Israel (as opposed to the effect on the price in Israel only).
- I am unable to accept the Respondent's arguments.
In case law, it has been determined, in other contexts with respect to "cross-border" torts, that the interpretation and the desirable manner of application of the choice of law rule in torts of the "law of the place where the tort was committed" raises various questions (compare: Civil Appeal Authority 6992/22 AGODA COMPANY Pte. Ltd. v. Shai Tzvia (May 27, 2024), which dealt with a tort committed on the Internet, in paragraph 43 of the judgment of the Honorable Justice Grosskopf). In the same matter, it was argued that "over the years the interpretation of this criterion [the criterion of the place of commission of the tort - the undersigned's comment] has undergone a change, from focusing on the place of the tort (lex loci delicti) to the place where the tort occurred and the place of occurrence (lex loci damni) (see Fassberg, at p. 1550)" (ibid.). This trend is also reflected in the Supreme Court's recognition in principle of the cause of action of the indirect victim of an international cartel, in the framework of the judgment given in the LIBOR case, even though the question of applicable law and international authority was not directly discussed in its framework (this is in view of the fact that a decision on this issue was not required, since the Supreme Court found, in a majority opinion, that the law of the request for approval for summary disposal is lawful even under Israeli law).