1 See below, Sec. 2.

2 See below, Sec. 3.

3 On the possible differences between the judicial jurisdiction required of one's own courts and that required of others' courts see below, Sec. 2. In theory, legislative jurisdiction can also be an issue in the recognition of judgments, and indeed, traditionally in French law it has been. See, for example, Mayer, P., Droit International Privé (4th ed., 1991) para. 376ff.Google Scholar On the relationship between judicial and legislative jurisdiction see below Secs. 4 and 5.

4 As a result, these conventions almost always deal with the issue of recognition of foreign judgments too. See below, Sec. 4.

5 In Israel, as in England, “international jurisdiction” over a defendant depends not on substantive links between the defendant and the forum but rather on valid service of summons, which can be performed on anyone present in Israel or — by leave of the court under Rule 500 of the Rules of Civil Procedure, 1984 — outside Israel, in the circumstances listed in the rule. While it is formally true to say that it is service which creates jurisdiction, it is nonetheless possible to list the circumstances in which service is justified — presence in the territory and the links listed in Rule 500 — and to view these as links which are capable of founding jurisdiction.

6 Sec. 28, Adoption Law, 1981 (33 L.S.I. 360).

7 Sec. 76, Legal Capacity and Guardianship Law, 1962 (16 L.S.I. 106),

8 In English law, the dominant view is that only this type of judicial jurisdiction is required and that the absence of jurisdiction under foreign law is irrelevant to the validity of the foreign judgment (Pemberton v. Hughes [1893] 1 Ch 789, Merker v. Merker [1963] P. 283). But see Cheshire, and North, , Private International Law, (12th ed., 1992) 371Google Scholar, for the view that this view is simply an application of the rule that a mistake in law of the foreign court is no defence to its recognition and enforcement, and that if the absence of domestic jurisdiction undermines the validity of the judgment in its own system, it cannot be enforced.

9 This is not the general tendency in Israeli law which derives from the English Common Law in this respect. Nonetheless, one example of this approach is Travers v. Holley (1953) P. 246, where it was accepted that jurisdiction claimed by English courts could not be denied to foreign courts. This multilateralisation of local rules of judicial jurisdiction is common in Europe, although it is gradually being modified in France. See, for example, P. Mayer, Droit International Privé, supra n. 3, at paras. 364-5.

10 Thus, for example, while an Israeli court may acquire jurisdiction over a person who entered into a contract in Israel or who performed a tort in Israel, these links are not considered sufficient for the jurisdiction of a foreign court, and a foreign judgment given on the basis of either of these links will not be recognised in Israel.

11 See, for example, the 1965 Hague Convention on the Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions, which authorises both the national state and the state of residence of the adopters concurrently. See by contrast, the 1971 Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, which empowers die forum of the state in which the facts occasioning an injury occurred only if the author of those facts was in the territory at the time the facts occurred.

12 The 1965 Choice of Court Convention is an exception to this rule. Art. 8 of this convention leaves the enforcement and recognition of judgments given by an authorised court to the usual internal rules relating to foreign judgments. See also the 1961 Convention on Jurisdiction and the Applicable Law Concerning the Protection of Minors, which distinguishes recognition of decisions — which is automatic, from their execution — which depends on local rules. Linking direct and indirect jurisdiction is a means of universalising jurisdictional rules. Nonetheless, unlike many of the choice-of-law conventions, the multilateralisation of rules of judicial jurisdiction does not extend to non-member states (see, for example, Art. 11 of the 1971 Convention on the Law Applicable to Traffic Accidents, Art. 6 of the Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions 1961, and Art. 11 of the 1973 Convention on the Law Applicable to Products Liability.)

13 The term “legislative” jurisdiction is a little misleading. The tools used by a given legal system to control need not be legislative tools, and the term legislative jurisdiction does not refer exclusively to legal rules whose source is legislative. It refers to the power of the rules of a legal system to control, whatever their formal source. Prescriptive jurisdiction is perhaps a more appropriate term.

14 The moment a system concedes that it is not exclusively all-powerful and that foreign law is sometimes appropriate, there can be no such thing as being subject to the control of a system in every respect and for every matter.

15 In the context of a convention, this arrangement need not assign exclusive jurisdiction to any one system. See, for example, the 1965 Convention on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoption which authorises the national state and the state of residence of the adopters concurrently, and requires that each apply its own law. In such a case, from the perspective of each system, the assignment of foreign legislative jurisdiction is of no immediate operative significance. It is not required to apply the foreign law itself. Just as rules of indirect judicial jurisdiction do not determine where the case should be heard — they only determine whether the forum will recognise foreign adjudication — multilateral rules of legislative jurisdiction which make each forum apply its own law mean that no forum will ever apply a foreign law; at most it will be required to recognise a situation created by the application of the foreign law in its own forum.

16 Supra n. 6.

17 Levontin, A. V. and Goldwater, C. I., Choice-of-Law Rules in Israel and Art. 46 of the Order in Council (Jerusalem, 1974) 20Google Scholar; Shava, M., The Personal Law in Israel (2nd ed., 1983) 363Google Scholar.

18 34 L.S.I. 92.

19 Sec. 9. This provision is a little ambiguous and raises a number of interesting problems. The first concerns the identity of the place in which the damage was caused. On this question, see Fassberg, Wasserstein, “Products Liability and the Conflict of Laws: Theory and Practice”, (1989) 9 T.A.U. Studies in L. 205Google Scholar, n. 67. A second problem is whether the provision should be interpreted as applying the law only to cases in which the damage was caused in Israel, overriding choice-of-law rules which might render it applicable as lex fori, even in cases where the damage was caused outside Israel.

20 23 L.S.I. 274.

21 See supra n. 12.

22 The 1973 Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations and the 1973 Convention on the Law Applicable to Maintenance Obligations essentially replace the earlier conventions in this field from 1956 (on the applicable law) and 1958 (on the recognition of judgments).

23 It is not quite clear whether Art. 1 of this convention, which provides that it does not apply to judgments dealing with “questions of family law, including personal or financial rights and obligations between … spouses”, rules out judgments dealing with matrimonial property. Four conventions deal with the International Sale of Goods: three choice-of-law conventions — two on the sale itself and one on property in the goods sold — and one on jurisdiction. The relation of the judicial jurisdiction convention to the general convention on jurisdiction in civil and commercial matters is not made clear.

24 Usually domestic lex fori, but not always (see, for example, the Convention on the Law Applicable to Succession to the Estates of Deceased Persons, Art. 4, which takes the choice-of-law rules of the designated law into account in certain circumstances, and the Convention on Celebration and Recognition of the Validity of Marriages, 1978, which employs the choice-of-law rules of the authorised system for certain purposes). With respect to this last example, see, however, the discussion below on the question whether judicial and legislative jurisdiction can always be satisfactorily distinguished (sec. 5).

25 Convention on Jurisdiction, Applicable Law, and Recognition of Decrees Relating to Adoption, 1965. Israel has not acceded to this convention.

26 Art. 3. Residence is mentioned before nationality, but there is no indication that it is accorded any precedence. Art. 7, dealing with revocation of an adoption order, grants jurisdiction to the state of residence of the adoptee, the state of residence of the adopter, and the state which issued the adoption order.

27 Arts. 4, 5 and 7. The state of residence will, for example, respect prohibitions in the national law of the adopter, and will apply provisions in the national law of the adoptee concerning consent insofar as they concern the adoptee. The law governing revocation of an adoption is that under which the adoption was granted, or the laws whose provisions concerning consent and prohibitions are mandatory for granting an adoption. An adoption may also be revoked according to the laws of the states authorised to revoke, some of which, it should be noted, are not authorised to grant an adoption (the residence of the adoptee for example) — see Art. 7.

28 Israel has not acceded to this convention.

29 Art. 2.

30 Art. 7.

31 Art. 4. All contracting states have emergency jurisdiction to act in order to protect a minor or a minor's properly within their territory (Art. 9).

32 This convention has been ratified by Israel and has passed into law in Israel, see Hague Convention (Return of Abducted Children) Law, 1991 ((1991) S.H. no. 1355, p. 148).

33 Art. 3.

34 It is further conceivable, although less likely, that a decision given under its law in another state might qualify as the basis for a conclusion that the child is not held in accordance with “the law” of the child's residence, even if it does not qualify as a decision given by the authorised forum.

35 Israel has not acceded to this convention.

36 Arts. 2 and 3.

37 Art. 3.

38 Art. 9. It will be regarded as valid even if at the time of celebration it was not valid, but was only validated under the lex loci celebrationis subsequently. These rules of jurisdiction are not exclusive. Marriages valid under other laws designated by local choice-of-law rules may also be recognised (Art. 13).

39 Art. 14 refers generally to local public policy, and Art. 11 specifies conditions which justify not recognising a marriage — such as one of the partners being married already, the partners being related to each other, the age of the partners, or the absence of capacity to marry, or of consent. These may be regarded as convention perceptions of public policy.

40 Unlike marriage, divorce is, in many systems, a judicial act. The convention treats the issue of judicial jurisdiction together with the issue of recognition, but the question of legislative jurisdiction is not explicitly discussed. A divorce judgment issued by an authorised court is entitled to recognition. Jurisdiction is assigned to the state of habitual residence of the respondent or to that of the petitioner, if it has continued for more than a year, or if it was a joint residence of the respondent and the petitioner.

There is no implication or assumption concerning the applicable law. Consequently, little can be deduced with respect to the relation between judicial and legislative jurisdiction. In some systems, only forum law is applied to divorces performed locally. Where that is the case, the practical result will be a concurrence of judicial and legislative jurisdiction. But this is by no means required by the convention, and it is quite possible that an authorised forum will apply foreign law. At the same time, since only the courts of the states of nationality and residence are authorised, it is not unlikely that in any given case the corresponding law will apply, since in most systems either the national or the residential law governs in matters of personal status. So too, while the convention does not permit a state to refuse to recognise a divorce because the forum in which it was granted applied different choice-of-law rules from those which the recognising forum would have employed, each state is free to make reservations in that spirit, with respect to couples both of whom are either residents or nationals, if they could not have gained a valid divorce in the country in which recognition is requested. This, in effect, permits the law of the residence or nationality to act exclusively to limit the capacity to obtain divorce, and, in that limited context, creates a parallel between the judicial and legislative jurisdiction contemplated by the convention.

41 See the Convention on the Law Applicable to Maintenance Obligations 1973, Art. 18; Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973, Art. 29.

42 Art 7. This is parallel to Art. 3 of the earlier convention but it adds the link of common nationality which was not recognised in earlier convention. As in most of the other conventions dealing with judicial jurisdiction, since recognition of the judgments is guaranteed in Art. 4, this assignment of judicial jurisdiction deals with both direct and indirect jurisdiction.

43 The obligor can, however, rely for his defence on the absence of an obligation in the common national law or, if there is no commmon nationality, in the law of the debtor's residence. In the earlier convention, the primary law was that of the state in which the infant was a habitual resident; forum law could apply if both parties were nationals of the forum and if the debtor was resident there. The choice-of-law rules of the forum would apply if no obligation could be found in the law of the infant's residence.

44 Israel has not acceded to this convention. It is not clear whether this convention applies to matrimonial property (see supra n. 23). If it does not, there is no convention dealing with judicial jurisdiction in this area.

45 But the place of contracting is not a legitimate link.

46 Art. 1.

47 Art. 5.

48 Israel has not acceded to this convention.

49 Art. 1.

50 Convention on the Law Applicable to International Sale of Goods, 1955. Israel has not acceded to this convention.

51 Convention on Law Applicable to the Transfer of Property in International Sale of Goods, 1958, Arts. 2,3,4,5. Israel has not acceded to this convention. The emphasis is on the time of litigation, or the time at which the claim arises, rather than the time at which the sale took place.

52 Art. 5. Convention on the Law Applicable to Agency, 1978. Israel has not acceded to this convention.

53 Art. 6.

54 Art. 11.

55 Convention on the Law Applicable to Products Liability, 1973. Israel has not acceded to this convention.

56 Art. 4.

57 Art. 5.

58 Art. 6.

59 Art. 7.

60 Convention on the Law Applicable to Traffic Accidents, 1971. Israel has not acceded to this convention.

61 Art. 3.

62 Art. 4.

63 Only the judicial authority of the locus delicti is subject to an additional factual condition — that the person claimed responsible for the damage was present there at the time the damage was caused.

64 One exception is the maintenance conventions which, while physically separate, were concluded at the same time—although interestingly, states do not necessarily accede to them both.

65 Israel has not acceded to this convention.

66 Arts. 6-10. The law chosen by the parties or that with the closest connection with the trust.

67 Art. 11.

68 But note that marriage was also included in this category, albeit with some reservations, and there “jurisdiction” is anticipated in any forum.

69 To some extent, the conventions on succession belong to this category too. Two conventions deal with legislative jurisdiction in the area of succession. The first is the 1961 Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Israel acceded to this convention and amended the Succession Law, 1965 (19 L.S.I. 58) in order to incorporate its rules. The result in Israeli law is not wholly satisfactory. For example, the rule that the capacity of the testator should be regarded as a matter of form was incorporated without changing or adapting the existing choice rule with respect to the capacity of a testator. The second is the 1989 Convention on the Law Applicable to Succession to the Estates of Deceased Persons (this convention is not yet in force, and Israel has not acceded to it). The latter convention authorises the law of the deceased person's residence, if it was also his national law, or if it was his residence for at least five years preceding his death, and if he was not manifestly more closely connected with his national state at the time of his death. In all other cases, the national law applies, unless the deceased was more closely connected with another state (whose law will then apply unless the choice rules of the designated law refer to another law which would apply itself) and subject to mandatory application of the lex situs in certain cases (Art. 15). The former convention assigns concurrent legislative jurisdiction to sustain the form of a will to the law of the place of making, the national, the domiciliary, the residential law of the testator, and the situs of immovables in the estate.

Judicial jurisdiction is treated in the conventions only with respect to the international administration of estates (1973). The only state whose courts are authorised to issue a certificate designating an administrator is the residence of the deceased (Art. 2). This forum will generally apply its own law, and only exceptionally will it apply the national law of the deceased (Art. 3 — when both it and the national law have declared that their law will apply exclusively to their own nationals, or when only the national state has made the declaration and the deceased resided in the residence less than 5 years prior to his death).

To the extent that it is possible to compare the issue of choice-of-law on the substantive issue of succession with the issue of jurisdiction to appoint an international administrator, the primacy of the residence and the secondary importance of the national system are clear in both cases. The connecting factors for legislative jurisdiction and for judicial jurisdiction, albeit in slightly incongruent circumstances, are similar. (They are not identical because the reference to the residence and the national system depend on slightly different conditions in the two contexts.)

70 So, for example, recognition of a marriage would belong in this category, as would judicial recognition of a trust or of a maintenance obligation.

Characterising such decisions as declaratory does not diminish the power of a judicial decision to produce a “new” right, in the sense that it defines the right clearly, makes it enforceable, and subjects it to new sets of rules applicable only to adjudicated rights, etc. Such decisions are nonetheless distinguishable from decisions which produce a new legal status.

71 Convention on the Law Applicable to Trusts and their Recognition. Israel has not acceded to this convention.

72 See supra. Sec. 4.

73 Apart from the obvious one which begs the question — namely, that the two types of jurisdiction rely on different types of connecting factors. It is not clear why they should.

74 The significance of separating the conventions on choice-of-law from those on choice-of-jurisdiction becomes apparent here.