Archive for December 2008


The Jerusalem District Court Allows Service of Pleadings Upon Iran Over the Objection of the State of Israel

December 5th, 2008 — 10:35 pm
   By Haggai Carmon

The Jerusalem District Court, (Motion 7333/04 Alan Steen et. Al v. The Islamic Republic of Iran et. Al rendered on December 4, 2008, Yosef Shapira, Judge) has ruled that although no diplomatic relations exist between Israel and the Islamic Republic of Iran, the Israeli Ministry of Foreign Affairs must serve Iran with summons regarding a pending Motion in a Jerusalem Court to enforce three foreign judgments against Iranian assets in Israel. Three plaintiffs- all U.S citizens – victims of terrorist attacks sponsored by Iran, obtained from U.S federal courts default judgments against Iran for substantial amounts. The plaintiffs are currently attempting to have the Israeli court recognize and enforce these judgments against unspecified assets they allege are held by Israel.

 

In order to commence with any legal proceedings, service of the pleadings must be served upon the defendant. When the defendant is a diplomat or a foreign state, Israeli law requires that service on the defendant be made by the Israeli Foreign Ministry through diplomatic channels. However, since there are no diplomatic relations between Israel and Iran, the position of the Legal Advisor to the Government (roughly equivalent to the Attorney General in many countries) was that the service cannot be made, resulting in a defeat of the effort to enforce the judgments against Iran. The Jerusalem District Court in a 52-page decision rejected the position of the Legal Advisor and ordered the Ministry of Foreign Affairs to attempt service on the Iranian Delegation to the United Nation, or on their representatives in any other international organization in which both Israel and Iran are members, or send the pleadings by mail to the Iranian government. The District Court’s decision can be appealed to the Israeli Supreme Court.

 

Why Does Israel Object to the Service?

Based upon previous instances where filings of claims in Israel against Iran were defeated for lack of a possibility to serve Iran, I suspect that the Legal Advisor will appeal the decision to the Supreme Court. Although not specified in the court decision, I believe that the plaintiffs aim at the substantial revenues accrued by the State of Israel from the operation of an oil pipeline jointly owned by Israel (and indirectly) by Iran in a partnership formed before the Islamic Revolution. I believe that the State of Israel who has been involved in a lengthy and complex international arbitration over these revenues wants to prevent private parties from attaching said revenues because in the arbitration, Israel is counterclaiming in an attem to offset the Iranian revenues held by Israel, against damages caused by Iran to Israel. Obviously, this is my private professional opinion not supported by the decision.

Comment » | Uncategorized

ISRAELI KNESSET PASSES A NEW FOREIGN STATES IMMUNITIES LAW

December 5th, 2008 — 08:48 pm

By Haggai Carmon

 

On November 16, 2008, the Official Gazette of Israel published the new Foreign States Immunities Law -2008. The new law became effective on that date, except for cases that their hearing has begun prior to that date. The new law regulates civil lawsuits and other proceedings filed in Israeli courts against foreign states. Prior to the passage of the law, Israel followed the doctrines of customary international law. The new law does not affect diplomatic or consular immunities.

 

Many foreign states would find the new law to be limiting their ability to conduct their affairs in Israel as before. In particular, no labor disputes with local hire employees will be protected by sovereign immunity- that was the case in most matters prior to the passage of the law, but there were exceptions.

 

The new law denies sovereign immunity even in matters that international conventions and case law had determined to be protected by sovereign immunity such as termination of employment, or refusal to hire for security reasons. The law also denies immunity in lawsuits for accidental death, bodily injuries, or damage to property if the accident occurred in Israel, save for very limited circumstances. Although said  torts exclusion is widely common internationally, Israel went farther and tacitly excluded immunity in lawsuits resulting from accidents involving visiting foreign military, unless there is an existing agreement between Israel and the foreign country.

 

However, the most damaging article which was included in the draft Bill which gave the Israeli courts an unlimited power to issue against a sovereign injunctions, mandamus, declaratory judgments and “any other remedy deemed fit by the court” – was removed, following my appearance before the Knesset’s Judiciary Committee. Many pertinent issues were still left open and are not covered by the law including reciprocity, Comity, and the most surprising omission: there is no exclusion of immunity for terror sponsoring states.

 

 

Comment » | Uncategorized

     Next Entries »