"In these circumstances, there is a ground for annulment of the arbitration award by virtue of section 24(4) of the Arbitration Law, due to a violation of the right to plead which is expressed in the very fact that there was no hearing in the presence of the parties and the arbitrator held telephone conversations or meetings ex parte, without the respondent being given the right and opportunity to respond to the claims made by the applicants and to the documents and accounts that were transferred by them to the arbitrator. In these circumstances, the arbitration award - to the extent that there is such - should be annulled by virtue of the ground for annulment set forth in section 24(4) of the Arbitration Law, which concerns the failure to provide a proper opportunity to argue arguments and bring evidence. 38. It has not escaped my notice that according to the arbitration clause in the lease agreement, the arbitrator is not subject to the substantive law, the rules of procedure and the laws of evidence. However, it is a well-established rule that even an arbitrator who has been exempted from substantive law and the rules of procedure is not exempt from the strict observance of the rules of natural justice and the granting of the right to a plea (see, in this regard, Civil Appeal Authority 9808/02 Katz v. Milman, IsrSC 58 (2) 901 (2004), Civil Appeal Authority 3157/05 Segal v. Central Yeshivat Tumei Tamimim Lubavitch Chabad (June 18,2006). Civil Appeal Authority 3355/11 Crops in Sha'ar Hanegev (1999) Ltd. v. Shemesh Adama and Water (S.A.M.) Agro Business Ltd. (November 22,2012)). I also saw reference in this matter to section 10 of the addendum to the Arbitration Law, which states that "the arbitrator shall not hold a meeting in the absence of a party unless he has warned him in writing or orally that he will hear the hearing at that meeting in his absence if he does not appear."
- At the time of the first judgment, the court ruled that a hearing on the children's issue would take place about a month later. And now, about a week after the first judgment was rendered, a supplementary judgment was given in the children's case. There is no explanation for the fact that the second judgment was given before its due date and before the parties have been heard in the matter, and this judgment certainly cannot stand.
To this must be added the respondent's arguments regarding the conduct of the tribunal, when the first judgment was initially handwritten and after about a week the judgment was sent to it in print, and at the same time, the second judgment was also issued, when, according to the respondent, a question arises as to the manner in which the tribunal conducted itself in a manner that raises a concern of bias.
- Hence, and against the background of the last two decisions, it is impossible to ignore the respondent's arguments regarding the content of the first judgment. The respondent argues that he was not given the right to testify witnesses, and the applicants in fact confirm his claim, while noting that the respondent was given the right to testify the witnesses by telephone. It is difficult for the court to accept conduct in which the court allows telephone testimony at night, only to conclude the proceeding on the same day. The court is not bound by the rules of evidence, but it certainly cannot rule out the bringing of witnesses and it is bound by basic rules of procedural conduct, including granting the parties the right to present their evidence.
- In addition, no response was given by the Applicants to the Respondent's arguments that the Applicant and the Tribunal met together after the judgment, when the contents of the judgment were given by hand that night and delivered to the Respondent (and even photographed by him from the Tribunal's table). To this it should be added that in the matter of the second judgment, the Tribunal cited as a justification what had been said to it by the Applicants. It can be assumed that if the Tribunal requested to hold an additional hearing on the issue of the children, then these words were said after the hearing and in any case in the presence of one party, without the right of response to the other party.
The applicants, not only did not give an affidavit on their behalf, but even waived the respondent's interrogation of his affidavit, and in any case the content of the affidavit is not concealed.
- In light of the aforesaid, when the respondent was not given the right to argue the matter of disqualification, and there is a real difficulty with the content of the previous decisions of the Tribunal, the line of the law requires that the Tribunal's Bench, which gave its decisions before it heard the Respondent, should be disqualified, and in any event, for this reason, the Tribunal's decisions should be invalidated.
Conclusion:
- I therefore order the annulment of the three judgments of the Tribunal.
Yes, I order the removal of the court from its position.