Israel - National Report - World Arbitration Reporter (WAR) - 2nd Edition
Daphna Kapeliuk, Radzyner School of Law, Interdisciplinary Center, Herzliya.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
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I. INTRODUCTION: ARBITRATION IN ISRAEL – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
The governing statutory framework for arbitration in Israel is the Arbitration Law, 1968 (“Arbitration Law” or “Law”). The Law repealed the Arbitration Ordinance of 1926, which was enacted by the British Mandatory authorities in Palestine. The Arbitration Ordinance mirrored the English Arbitration Act of 1889, however it did not incorporate further changes that had been implemented in English arbitration law in 1934 and 1950. The Arbitration Law was amended twice. In 1974, the Law incorporated specific provisions relating to the enforcement of foreign arbitration agreements and awards pursuant to international conventions. In 2008 the amendment expanded the limited control of courts over the award by enabling parties to agree that the award would be subject to appeal to an appeal arbitral tribunal, or to the court. In 2018 the Law was amended twice, the first amendment relates to procedural matters applicable in an appeal before an arbitral tribunal, and the second amendment relates to the substantive jurisdiction of the courts in matters of arbitration.
Additionally, in 2014, the Standard Contracts Law, 1968, was amended by inclusion of specific provisions relating to arbitration agreements and unduly disadvantageous conditions.
2. Current law
The Arbitration Law regulates all matters concerning arbitration. In addition, the Regulations for Procedure in Matters of Arbitration, 1968, govern procedural aspects relating to arbitration, and the Regulations for the Execution of the New York Convention (Foreign Arbitration) 1978, govern matters concerning the recognition and enforcement of foreign arbitral awards in Israel. There are no separate legislative frameworks for domestic and international arbitration, however the Arbitration Law includes specific provisions relating to the recognition and enforcement of international arbitration agreements and awards.
1. Historical evolution of law relating to Arbitration
2. Current law
a) Domestic arbitration law
b) International arbitration law
3. Law reform projects
4. Confidentiality and publication of awards B. Arbitration Infrastructure and Practice in Israel
1. Major arbitration institutions
2. Number of cases and other statistics
3. Development of arbitration compared with litigation II. CURRENT LAW AND PRACTICE A. Arbitration Agreement
1. Types and validity of agreement
a) Clauses and submission agreements
b) Minimum essential content
c) Form requirements
d) Incorporation by reference
e) Interpretation
2. Enforcing arbitration agreements
a) Declaratory actions in court
b) Applications to compel or stay arbitration
c) Anti-suit and other injunctions
3. Effects on third parties
a) Extension of the agreement over third parties
4. Termination and breach B. Doctrine of Separability
1. Statutory provisions C. Jurisdiction
1. Which forum decides jurisdiction
2. Prima facie determination
3. Competence-Competence
4. Interaction of national courts and tribunals D. Arbitrability
1. Notion and functions of arbitrability
2. Subjective arbitrability
3. Objective arbitrability
a) Examples of restrictions to objective arbitrability at law E. Arbitral Tribunal
1. Status and qualifications of arbitrators
a) Number of arbitrators
b) Legal status
c) Qualifications and accreditation requirements
d) Arbitrators’ rights and duties
e) Relevant codes of ethics
2. Appointment of arbitrators
a) Methods of appointment
b) Appointing authorities
c) Payment agreements
d) Resignation and its consequences
3. Challenge and removal
a) Grounds for challenge
b) Procedure for challenge
c) Replacement of arbitrators
4. Arbitrator liability and immunity F. Conducting the Arbitration
1. Law governing procedure
a) Determination of law and rules governing procedure
b) Notion and role of seat of arbitration
c) Methods for selection of seat absent party choice
2. Conduct of arbitration
a) Basic procedural principles
b) Party autonomy and arbitrators’ power to determine procedure
c) Style and characteristics of the oral hearing
d) Documents only arbitrations
e) Submissions and notifications
f) Deadlines, and methods for their extension
g) Legal representation
h) Default proceedings
3. Taking of evidence
a) Admissibility, Burden of proof, Standards
of proof, Evidentiary means
b) Production of documents
c) Witnesses
d) Tribunal-appointed experts and party-appointed experts
4. Interim measures of protection
5. Interaction between national courts and arbitration tribunals
a) Court assistance before the arbitration begins
b) Court assistance during the arbitration
c) Court assistance after the arbitration
6. Law and rules of law applicable to the merits
7. Costs G. Arbitration Award
1. Types of awards
2. Form requirements
a) Essential content
b) Reasons
c) Time limits for making award
3. Decision making
4. Effects of award
5. Correction, supplementation, and amendment
a) Correcting the award
b) Interpretation of award H. Challenge and Other Actions against the Award
1. Setting aside
a) Grounds
b) Time limits
c) Procedure
d) Limiting judicial review of awards by contract
2. Appeal on the merits
a) Is it allowed? III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards B. Foreign Awards
IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation (See CD-ROM)
Israel Arbitration Law 1968 B. Major Arbitration Institutions C. Cases D. Bibliography