As a basic rule in international law, a judgment rendered in one country is not recognized, per se, in another country in which its recognition is enforcement or recognition is sought. The foreign judgment must first undergo a process of integration, sometimes called ‘domestication,’ dictated by the laws of the integrating country before it can be recognized or enforced. The difference in status between a foreign and a local, or domestic, judgment necessitates this integration:[1]
“Where it exists, it is a sign that a local governmental organ – judicial or otherwise – has granted the foreign judgment an entry visa and has set the degree of its validity here according to the pertinent rules of the local law.” Justice Cheshin observed in C.A. 970/93 Attorney General of Israel v. Agam[2]:
Thus, for a foreign judgment to serve as, e.g., as a collateral estoppel in Israeli litigation, an Israeli court must first recognize, and thus integrate, the foreign judgment. Until this is done, the foreign judgment has no status in Israel, for the purpose of either recognition or enforcement. It can even be said that “a foreign judgment not yet declared enforceable holds the same status as mere pleadings.”[3]
General
A foreign judgment lacks validity, and must undergo a process of integration, before it can be recognized or enforced in Israel. Israeli law’s methods of integration are detailed in the Foreign Judgments Enforcement Law, 5718-1958 (Enforcement Law). This establishes a distinct normative framework on whose sole basis the courts in Israel may recognize a foreign judgment or declare it enforceable. The Enforcement Law establishes a series of conditions regarding the nature of the judgment, the manner of its execution, and its integration into Israeli law. Should these conditions be met, a court shall declare the judgment enforceable in Israel. Thus, inter alia, the Enforcement Law establishes conditions under which an Israeli court may declare a foreign judgment enforceable: the requirement of reciprocity of enforcement, according to which a foreign judgment would not be declared enforceable if the rendering country’s law does not enforce the judgments of Israeli courts; the time period during which a petition to enforce a foreign judgment must be filed for an Israeli court to considered it; defenses, any one of which would preclude the enforceability of the foreign judgment; and a restriction on enforcement, according to which a foreign judgment shall not be declared enforceable if its enforcement is likely to prejudice the sovereignty or security of the State of Israel.
The Enforcement Law (Article 11) also establishes conditions for recognizing a foreign judgment: “incidentally, while hearing another matter…and for the purpose of that matter”, or primarily and directly. It is significant that the original Enforcement Law, passed by the Knesset in 1958, dealt solely with incidental recognition of foreign judgments, while provisions for direct and primary recognition of foreign judgments were added later, in the Foreign Judgments Enforcement Law (Amendment 2) 5738-1977.
Although lack of good faith or unacceptable conduct do not, pursuant to the Enforcement Law, provide independent cause to refuse recognition or enforcement of a foreign judgment, “however certainly this carries weight in the court’s considerations together with all other conditions”[4] for such recognition or enforcement.
Judgments in Personam, in Rem, and Personal Status Judgments
The recognition or enforcement of a foreign judgment is highly influenced by the traditional classification of judgments into in personam, in rem, and personal status judgments. A judgment in personam obligates a person to perform an act (repay a debt, pay damages, surrender an object, etc.) or to refrain from doing so. A judgment in personam binds, in the sense of creating res judicata, only the parties involved, and by its very nature is given to execution, that is to say, enforcement. A judgment in rem declares or establishes (creates, changes, or cancels) title in immovable or movable property. Such a judgment binds the world, so to speak. It does not place any personal obligation and is therefore not given to execution. This is also true of quasi in rem judgments, which are applicable only to certain parties: for example, an inheritance order that declares certain individuals as heirs, and their resulting title in a certain property. A status judgment is a judgment that declares or establishes (creates, changes, or cancels) the personal status of a person, such as an annulment or a judgment of divorce. Like a judgment in rem, a personal status judgment is not given to execution, as it imposes no personal obligations.
Under the rules of private international law, personal status judgments can be issued by a court in the country of permanent residency or in the country of citizenship.[5] In general, however, there is no international consistency,[6] as personal status is limited to a particular country or a specific legal system. In a case where a Jewish couple, married in, e.g., New York in a civil ceremony, emigrates to Israel, they may be considered unmarried from the perspective of the Jewish law that applies in the Israeli State Rabbinical court. Yet, in the event of divorce, Israeli law may require them to accept a Rabbinic divorce. In some situations,[7] nonetheless, Israeli civil law may recognize the marriage, for example, regarding alimony.[8] A foreign divorce judgment is another example of a split status,[9] as it has no binding validity and lacks evidentiary value until validation from a competent Israeli court.
Another example is mamzerut, a status created by Jewish religious law that disqualifies the mamzer from Jewish marriage. In the Israeli legal system,[10] a mamzer is a child born of a married woman from another man, or a child of relations with a first-order relative, defined and prohibited in religious law. Within the state of Israel, qualification for marriage and divorce between Jews is set by Jewish law, a law that is not applicable in other countries. Therefore, a mamzer may other than in Israel. A parallel example, in certain countries, is a child born out of wedlock. In those countries, such a child is considered illegitimate, whereas in Jewish religious law, the status of a child born out of wedlock is not affected in any way.
Thus, only foreign judgments in personam can be enforced in Israel directly, while foreign in rem and personal status judgments are granted validity through their recognition. However, because all enforcement in and of itself includes recognition, it can be said that all types of judgments can potentially be recognized,[11] although for those judgments that cannot be enforced, the recognition per se is of nearly no value.
What options are available for a party seeking the enforcement, in Israel, of a foreign judgment? In general, the traditional means in English common law for enforcing a foreign debt judgment is by filing a domestic claim based on the foreign judgment. The foreign judgment itself, as opposed to the cause of action in the original forum, becomes the new cause of action. Claims based on foreign judgments were accepted in Palestine under the British Mandate. This expired in 1948 upon the establishment of the State of Israel. However, after enactment of the Enforcement Law, and particularly of its Article 2, it was no longer clear whether this procedure was still available to the holder of a foreign judgment.[12]
In C.A. 101/63 Winter v. Kovetz,[13] the Supreme Court dispersed any doubts, ruling unequivocally, that even given the Enforcement Law, a party might still file a claim in Israel on the basis of a foreign judgment, as opposed to filing a petition pursuant to the Enforcement Law to declare the judgment enforceable.[14] In C.A. 665/72 Mata Khan (Christophilco) v. Schweibel,[15] the Israeli Supreme Court again held that a foreign judgment creditor is permitted to “file a claim based on the original cause at the basis of the judgment, file a claim whose cause of action is the foreign judgment, or file a petition for enforcement in accordance with the enforcement law.”[16]
Enforcement proceedings for a foreign judgment are intended to grant the creditor, whose matter was already heard and adjudicated in a foreign state, tools of enforcement in the state occupied by the debtor or his property. In this way, the objectives behind the enforcement process are attained, including limiting litigation between the parties; honoring their rights; as well as encouraging cooperation and harmony between the various legal systems.
A result of the stated objectives of the enforcement process is that an Israeli court hearing a petition to enforce a foreign judgment does not act as an appellate court over the foreign court, and is inclined to “respect the judgment as is, and not question it.”[17] Thus also, “the court does not require a new, local investigation of the foreign court proceedings; does not examine the factual or legal correctness of the foreign judgment; and does not even take the reasoning of the judgment into account.”[18] Therefore, an error – even a blatant one – in the foreign judgment would not in and of itself preclude the judgment’s enforcement.
[1] Prof. Amos Shapira, Recognition and Enforcement of Foreign Judgments, Iyunei Mishpat 4 (1974) 509 (hereinafter: Shapira, Recognition and Enforcement of Foreign Judgments, or Shapira).
[2]P.D. 49(1) 561, 569 (1995).
[3]Bnk. (T.A.) 1515/04 Bamira v. Greenberg, at §4, (Nevo, Jul. 15, 2004).
[4] See Judge Keret-Meir’s ruling in Bankruptcy File (T.A.) 2193/08 First International Bank of Israel Ltd. v. Gold & Honey (1995) L.P. et al (Nevo, Oct. 30, 2008), §4.
[5] H.C. 36/50 Gottlieb v. Gottlieb P.D. 5 57, 64 (1950); C.A. 472/64 Inavi v. Attorney General of Israel P.D. 19(1) 645 (1965).
[6] Michael Corinaldi, Status, Family, and Succession Laws Between Religion And State 25-26 (2004).
[7]Avigdor Levontin, On Marriage and Divorce Abroad 7, 50-51, 67-68 (1957). See also Menashe Shawa, Personal Law in Israel 153-154, 681 (4th ed., 2001).
[8]C.A. 173/69 Becher v. Goldberg P.D. 23(2) 665 (1969).
[9]Shawa, supra n. 3 at 141-241. See also Menashe Shawa, Direct Recognition of Judgments in Israel, and Applicable Rules Kiryat Hamishpat 2 35 (2002).
[10]Corinaldi, supra n. 3 at 25-26.
[11]Shapira, Recognition and Enforcement of Foreign Judgments 513.
[12]Id. 515-516.
[13]P.D. 17 2032 (1963). See also Shapira, Recognition and Enforcement of Foreign Judgments 516 n. 28.
[14]Shapira, id.
[15]P.D. 27(1) 690 (1984).
[16]Id. at 694.
[17]C.A. 221/78 Ovadia v. Cohen P.D. 33(1) 293, 296 (1978).
[18]D.C.M. (Jm.) 4052/05 Wells Fargo Bank of Minnesota National Association v. Zimmering (Nevo, Dec. 31, 2007), Section 9 of the judgment.
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