Israeli Court Rejects Hague Evidence Convention Letter of Request

© 2016 Sherby & Co., Advs.

Every year Israeli courts grant orders for the production of evidence, in response to Letters of Request issued under the 1970 Hague Evidence Convention (the “Convention”).  In fact, because Israel did not make any declaration pursuant to Article 23 of the Convention (which authorizes a contracting State to refuse to execute a Letter of Request for “pre-trial discovery” of documents), arguably Israel is one of the most liberal signatories to the Convention.

Therefore, when an Israeli court refuses to comply with a Letter of Request under the Convention, that refusal is noteworthy.

The Judicial Authority of Ohio, USA v. Mann (2016), from the Jerusalem Magistrates Court, was such an instance.

The Mann case involved a Letter of Request issued from a court in Ohio, seeking evidence from an Israeli citizen for purposes of enforcing an Ohio judgment against him.

The Convention provides that it “does not cover . . . the issuance of any process by which judgments or orders are executed or enforced.”  (Article 1)  Nonetheless, the (American) requesting party apparently believed that, by specifically informing the Israeli court that the requested evidence is for use in an enforcement proceeding taking place in the United States and not in Israel, its Letter of Request could avoid falling within the Article 1 exclusion.

The Israeli court was not persuaded.

In denying the requested discovery, the Israeli court based its ruling both on the limiting language of the Convention as well as similar, limiting language in Israel’s Legal Assistance Among States Law 1998 (the “Statute”).  Section 2(b) of the Statute provides that legal assistance under that statute does not include “execution of a judgment,” and the only exception (to that exception) is in the context of criminal forfeiture, which clearly was not applicable in the Mann case.

Although the court had an easy time determining that the requested evidence was for use in connection with an enforcement proceeding, the fact that the American applicant referred to itself as a “creditor” made the court’s job that much easier.

The Israeli court made clear that the Israeli legal system is not powerless to provide assistance to a foreign judgment creditor that wishes to obtain information concerning the assets of an Israeli-based judgment debtor – regardless of where those assets might be located.  The court pointed out that (a) the American judgment creditor is free to file an application for enforcement of the foreign judgment, (b) if the non-Israeli judgment were to be declared enforceable in Israel, it could be executed upon like any other Israeli judgment, and (c) in the context of executing upon the (domesticated) judgment, the creditor could seek information regarding the (presumably worldwide) assets of the debtor.

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