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Codification of Private International Law in Israel?
Published online by Cambridge University Press: 12 February 2016
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In the field of Private International Law, as well as in other branches of the law, Israeli legislation reflects the inheritance of the past. The situation is particularly complex in relation to matters of personal status, where the principle of the personality of the law, characterising the legal set-up of the former Ottoman Empire, still prevails, although modified in various ways by enactments of the Mandatory period and the legislature of Israel. Yet the bulk of conflict rules are drawn from the common law as applied in England, a subsidiary source of legal rules under art. 46 of the Palestine Order-in-Council, 1922–47.
The details of the P.I.L. system actually in force in the State of Israel will not be dealt with in this paper. Our discussion will be limited to the main trends.
The rules concerning personal status in Israel have their basis in Ottoman law according to which the national law of foreigners was applied to them by the consular courts of their own States. This, the well-known system of the Capitulations, was maintained until the Treaty of Montreux of 8 May 1937.
When the British Mandate was set up in Palestine, the pattern obtaining in other territories under British administration was followed: the existing legal framework was retained and merely adapted to the new situation. The relevant Mandatory legislation consisted of the Palestine Order-in-Council 1922 and the Succession Ordinance, 1925. Under these enactments matters of personal status affecting foreigners (other than Moslem foreigners belonging to States who required them to submit in such matters, to the exclusive jurisdiction of the Moslem Religious Courts) were to be tried by the civil courts (the District Courts) according to their national law; if, however, the national law referred the matter to the law of their domicile, such latter law was to be applied.
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References
1 Hereinafter referred to as P.I.L.
2 See Levontin, and Goldwater, , Choice of Law Rules and Art. 46, Palestine Order-in-Council (Jerusalem, 1974, in Hebrew) 7 ff.Google Scholar
3 On P.I.L. in Israel, see Shaki, , “The Criterion Domicile and its Preference over the Criterion Nationality in Israel Private International Law” in Tedeschi, and Yadin, (eds.) Studies in Israel Legislative Problems (Jerusalem, 1966) 163–198.Google ScholarLevontin, , Marriages and Divorces out of the Jurisdiction (Jerusalem, 1957).Google Scholar On the situation under the British Mandate, see Goadby, , International and Inter-Religious Private Law in Palestine (Jerusalem, 1926)Google Scholar; Vitta, , The Conflict of Laws in Matters of Personal Status in Palestine (Tel Aviv, 1947)Google Scholar; Wengler, , “Internationales und inter-religiöses Privatrecht in Palestina” (1938) 12 Zeit. ausl. u. int. Privatrecht (RabelsZ) 772–802.Google Scholar See generally, Les législations de droit international privé (Asser Instituut (The Hague) Oslo, 1971) 243 ff. (“Israel”).
4 On the system of law of the former Ottoman Empire, see Messina, , Tratté de droit égyptien mixte (4 vols., Alexandria, 1927–1934).Google Scholar See also Brinton, , The Mixed Courts of Egypt (New Haven, Conn., 2nd ed., 1968).Google Scholar
5 Arts. 46 ff.
6 Art. 51.
7 Art. 64(3).
8 Art. 64(2).
9 A renvoi of the kind provided for in art. 64(2) of the Palestine Order-in-Council is not usual. Various enactments either accept or refuse renvoi in full, or limit its range of action by admitting only renvoi of the first, or of the second degree, etc. Here, however, the limitation has a different connotation, as renvoi is refused or admitted on the basis of the connecting principle (of a domiciliary or of a non-domiciliary character) adopted by the competent foreign law.
10 Art. 65.
11 See arts. 53(1) and 54(1).
12 Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953, sec. 1 (7 L.S.I. 139).
13 In this context the term domicile (Hebrew, moshav) is not used in the technical sense it bears in Anglo-American law.
14 Family Law Amendment (Maintenance) Law, 1959, sec. 17 (13 L.S.I. 75).
15 Sec. 77 (16 L.S.I. 117).
16 Succession Law, 1965, sec. 137 (19 L.S.I. 81).
17 Ibid., sec. 138 at 82.
18 Ibid., sec. 139.
19 Ibid., sec. 140.
20 The Spouses (Property Relations) Law, 1973, sec. 15 (27 L.S.I. 313).
21 Sec. 4(1) (13 L.S.I. 152).
22 Matters of Dissolution of Marriage (Jurisdiction in Special Cases) Law, 1969, sec. 5 (23 L.S.I. 274).
23 See Levontin and Goldwater, op. cit. supra n. 2, at 24 ff.
24 These include (1) Carriage of Goods by Sea Ordinance, 1926, sec. 2 ff. (implementing the Hague Rules as to bills of lading) (2) Companies Ordinance, sec. 248, (requiring registration of foreign companies) (3) Cooperative Societies Ordinance, sec. 70 ff. (also relating to registration) (4) Bills of Exchange Ordinance, sec. 72 (on the law relating to validity in form of bills, their interpretation, the duties of the holder, etc.) (5) Carriage by Air Law, 1962, secs. 2 and 5 (implementing the Warsaw Convention of 1929, and the Hague Protocol thereto of 1955) (6) Shipping (Limitation of Liability of Owners of Vessels) Law, 1965 (implementing the Brussels Convention of 1957) (7) Declarations of Death Law, 1952 (implementing the United Nations Convention of 1950), etc.
25 See Levontin and Goldwater, op. cit. supra n. 2, at 24 ff.
26 Greece: 1940; Brazil: 1942; Egypt: 1948; Iraq: 1951; the Soviet Union: 1961; Guinea: 1962; Madagascar: 1962; Czechoslovakia: 1963; Albania: 1964; Poland: 1965; Republic of Central Africa: 1965; Portugal: 1966; Gabon: 1972; Spain: 1974; German Democratic Republic: 1975 (Rechtsanwendungsgesetz of 5 December 1975, in force from 1 January 1976). Certain States have codified only the part of P.I.L. relating to family law (as Bulgaria and Senegal: 1972) or relating to succession (Kenya: 1972).
27 Law enacted on 3 January 1972.
28 Law enacted on 11 July 1975.
29 Thus Francescakis, , “Le surprenant article 310 nouveau du Code civil sur le divorce international” (1975) 64 Rev. crit. dr. int. privé 553–594, at 592 ff.Google Scholar For criticism of the law of 1972, see Batiffol, and Lagarde, , “L'improvisation de nouvelles règles de conflit de lois en matière de filiation” (1972) 61 Rev. crit. dr. int. privé 1–26.Google Scholar Conflict rules are appended also to other recent French laws: the law of 18 June 1966, on freight and maritime transport contracts, and the law of 24 July 1966, on commercial societies.
30 On the Belgian law of 1960, see Abrahams, and Putter, , “La loi belge du 27 juin 1960 sur l'admissibilité du divorce lorsqu'un conjoint au moins est étranger” (1966) 93 Journ. droit international (Clunet) 765–782Google Scholar; Francescakis, and Gothot, , “Une réglementation inachevée du divorce international. La loi beige du 27 juin 1960” (1962) 51 Rev. crit. dr. int. privé 247–282.Google Scholar
31 See Levontin and Goldwater, op. cit. supra n. 2, at 39–40.
32 See Kahn-Freund, , The Growth oj Internationalism in English Private International Law (Lionel Cohen Lecture Series, Magnes Press, Jerusalem, 1960).Google Scholar Prof. Kahn-Freund points out that, in the English system, a nationalist element may be detected in the reluctance to apply foreign laws, while an internationalist tendency may be seen in the wide recognition and enforcement of foreign judgments.
33 In relation to American law in our field, we have already mentioned the Restatement. This doctrinal codification, however, interesting as it may be, does not commend itself as a model for actual codification; thus Vischer, , “Das Neue Restatement Conflict of Law” (1974) 38 RabelsZ 128–154, at 149.Google Scholar Even in the United States Prof. Reese (the reporter of the Restatement, Second) has emphasized that the Restatement suggests an approach, rather than attempting to propose rules; see Reese, , “Choice of Law: Rules of Approach” (1971–1972) 57 Cornell L.R. 315–334.Google Scholar
34 On the different sources of Israeli legislation, see Friedmann, , “The Effect of Foreign Law on the Law of Israel” (1975) 10 Is. L.R. 192–206Google Scholar; id., “Infusion of the Common Law into the Legal System of Israel”, ibid., 324–377; id., “Independent Development of Israeli Law”, ibid., 515–568.
35 For English P.I.L., the best general works are those by Cheshire, and North, , Private International Law (London, 9th ed., 1974)Google Scholar; Dicey, , The Conflict of Laws (London, 9th ed., by Morris, and others, 1973)Google Scholar; Graveson, , The Conflict of Laws (London, 7th ed., 1974).Google Scholar For American law in our field, see Stumberg, , Principles of Conflict of Laws (Brooklyn, 3rd ed., 1963)Google Scholar; Goodrich, , Handbook on the Conflict of Laws (St. Paul, Minn., 4th ed. by Scoles, , 1965)Google Scholar; Leflar, , American Conflicts Law (Indianapolis, 1968)Google Scholar; Ehrenzweig, , A Treatise on the Conflict of Laws (St. Paul, Minn., 1962)Google Scholar; id., Private International Law: a Comparative Treatise on American International Conflicts Law, Including Admiralty (2 vols., Leyden, 1967 and 1973 (in collaboration with Jayme). For a comment of the Restatement (Second) see Reese, , “Discussion of Major Areas of Choice of Law” (1964) 111 Recueil des Cours de l'Académie de La Haye 315–416.Google Scholar
36 The outstanding treatise is by Batiffol, and Lagarde, , Droit international privé (2 vols., Paris, 6th ed., 1974–1976)Google Scholar; see also Lerebours-Pigeonnière, , Précis de droit international privé (Paris, 9th ed. by Loussouarn, , 1970).Google Scholar
37 On the German system of P.I.L., see particularly Raape, , Deutsches internationales Privatrecht. Ein Lehrbuch (Berlin-Frankfurt a.M., 5th ed., 1961)Google Scholar; Kegel, , Internationales Privatrecht. Ein Studienbuch (Munich and Berlin, 3rd ed., 1971).Google Scholar On the Italian system, see Pallieri, Balladore, Diritto internazionale privato (Milan, 1974)Google Scholar; Vitta, , Diritto internazionale privato (3 vols., Turin, 1972–1975).Google Scholar
38 On the Czechoslovak law of 1963, see Bystricky, , “Les traits généraux de Ia codification tchécoslovaque en droit international privé (1968) 123 Recueil de Cours de l'Académie de la Haye 409–540.Google Scholar On the Portuguese civil code (whose interest lies chiefly in the composite character of its rules, drawn from different sources) see Correia, Ferrer, O novo diretto international privado portuguès (Coimbra, 1972).Google Scholar For the text of these and other P.I.L. laws see Les législations de droit international privé (op. cit. supra n. 3).
39 For the third French draft with a commentary, see (1970) 59 Rev. crit. dr. int. privé 835 ff. On the Benelux draft, see Winter, De, “La nouvelle version du projet Benelux de loi uniforme de droit international privé” (1968) 57 Rev. crit. dr. int. privé 577–606Google Scholar; Rigaux, , “Le nouveau projet de loi uniforme Benelux relative au droit international privé” (1969) 96 Clunet 334–354.Google Scholar The Benelux draft has, however, been abandoned by decision of the Consultative Interparliamentary Benelux Council, 15 December 1975; see (1976) 23 Netherlands Int. L.R. 248 ff. On the E.E.C. draft, see Lando, , Overbeck, von and Volken, in (1974) 48 RabelsZ 6–78.Google Scholar
40 See Vitta, op. cit. supra n. 37, vol. 1, 7 ff.
41 So far Israel has ratified only the Convention on Civil Procedure of 1 March 1954, and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 15 November 1965.
42 By way of example we may recall that the Czechoslovak law of 1963—which deals not only with P.I.L. proper, but also with international civil procedure—consists of 70 articles; the Polish law of 1965, dealing only with P.I.L., of 38 articles; the part of the Portuguese civil code of 1966, dealing with P.I.L., of 54 articles, etc.
43 E.g., the well-known American Restatement (Second), consisting of 437 elaborate paragraphs, and also the draft European Code of P.I.L. by Frankenstein, comprising some 800 articles.
44 See, for instance, the Czechoslovak law of 4 December 1963, on P.I.L. and civil procedure.
45 Jurisdictional rules are at present drawn from English sources; see Gottlieb v. Gottlieb (1951) 5 P.D. 57; Hamossad l'Aliyah v. Kawan (1954) 8 P.D. 71; Yadgrof v. Yadgrof (1967) (II) 21 P.D. 650. The first and third cases relate to submission to jurisdiction; the second to the question whether possession of property within a country gives place to jurisdiction.
46 Foreign Judgments Enforcement Law, 1958 (12 L.S.I. 82).
47 Under sec. 3(3) of the original law of 1958 foreign judgments were denied recognition if contrary to public policy or “repugnant to the laws of the State of Israel”. The latter requirement, clearly unnecessary and misleading, has been deleted by the Amendment of 1974, under which enforcement is made conditional upon the fact that “the tenor of the foreign judgment is not repugnant to public policy”. It would be better to refer to the effects of the foreign judgments within the Israeli legal order, rather than to its “tenor”. See Goldwater, Ch., “Amendments to the Foreign Judgments Enforcement Law” (1975) 10 Is. L.R. 247.Google Scholar We deem that reciprocity, required by sec. 4 of the Foreign Judgments Enforcement Law, 1958, should be given up altogether (and not only on request of the Attorney General, as now provided by the Law). In effect, reciprocity should not constitute an element to be taken into consideration in order to deny recognition of foreign judgments. It is sometimes alleged that reciprocity acts as a deterrent against discriminatory measures of foreign countries. But it is a mere illusion to hold that a country can be influenced to change its law in view of the content of the law of another country.
48 See, however, Schwebel v. Ungar, 42 D.L.R. (2d) 622, where the Ontario Court of Appeal held that a Jewish religious divorce in Italy (where such divorces have no civil effects) was validated by the subsequent acquisition of an Israeli domicile by the parties. For a criticism, see Webb in (1965) 14 I. & Comp. L.Q. 659, and Lysick in (1965) 43 Can. B.R. 363.
49 See Vitta, op. cit. supra n. 37, vol. 2, p. 216 ff., as well as judgments and authorities quoted therein.
50 See Maridakis, , “Les principaux traits de la récente codification hellénique touchant le droit international privé” (1954) 85 Recueil des Cours de l'Académie de la Haye 111–237, at 218 ff.Google Scholar According to Prof. Maridakis the requirement of a religious ceremony has to do with the substance, and not only with the form of marriage.
51 See Chigier, , “The Rabbinical Courts in the State of Israel” (1967) 2 Is.L.R. 147–181Google Scholar, at 163 ff. See also Shiloh, , “Marriage and Divorce in Israel” (1970) 5 Is. L.R. 479–498 at 488.CrossRefGoogle Scholar
52 See Funk-Schlesinger v. Minister of Interior (1962) 17 P.D. 225.
53 Also in Greek law, as already pointed out, recognition of a civil marriage abroad of Greek nationals of Orthodox religion is excluded only in the absence of a religious celebration.
54 See supra n. 12.
55 For the conventions in the field of procedure ratified by Israel, see supra n. 41. Other Hague conventions that Israel has not yet ratified are as follows: Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970); Convention on the Recognition of Divorces and Legal Separations (1 June 1970); Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (1 February 1971); Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (2 October 1973). Also the principles obtaining in the important Brussels Convention of 27 September 196B (between the six original E.E.C. States) on Jurisdiction and Execution of Judgments in Civil and Commercial Matters should be taken into consideration as a source of inspiration.
56 For a well-known example of distinct codifications of P.I.L. and inter-territorial conflicts, see the two Polish laws of 1926. More recently, the Spanish law of 31 May 1974, has added two new chapters to the Preliminary Title of the Civil Code, one (chap. IV) as to P.I.L. and the other (chap. V) as to interterritorial conflicts.
57 See Vitta, , “The Conflict of Personal Laws” (1970) 5 Is.L.R. 170–200CrossRefGoogle Scholar and 337–351 at 349 ff.
58 See supra part 5.
59 Of course the reference to the jurisdiction of the religious courts has in view their jurisdiction from the point of view of the State. The civil courts operate exclusively as organs of the State, so that their jurisdiction exists only according to the State's laws, whilst the religious courts operate within the framework of the respective religious systems, so that, from the point of view of such systems, their jurisdiction may exist also in a wider range of matters than the matters for which it is recognized by the State.
60 The limitation to application of their law by the religious courts under the Women's Equal Rights Law, 1951 (5 L.S.I. 171) constitutes an interesting example of a public policy principle of the civil legislation to be respected also by the religious courts. The proviso of the Succession Law as to successions of minors may also be considered an expression of the public policy of the civil legislation, although of a more limited character. On public policy in the interpersonal conflict of laws, see Vitta, op. cit. supra n. 3, at 199 ff.