Enforcement of foreign judgments – Israel as a case study

Abstract

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment.

The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

Keywords:

• enforcement of foreign judgments
• empirical legal studies
• Israeli Law
• law and international relations
• access to international justice

A. Introduction

Foreign judgments do not have binding force in courts of a different country just because they were rendered by a court of law. Historically, each country decided for itself whether, and under which conditions, it was willing to recognise foreign judgments. As will be elaborated in the next part, the two dominant theories as to when a foreign judgment should be recognised are vested rights (in most common law tradition countries), and comity (in civil law tradition countries). While the vested rights theory sees the foreign judgment as an obligation of one side to the other and focuses on due process questions, the comity theory promotes greater consideration of international relations when considering recognition of a foreign judgment.¹ Also, one might argue that the characteristics of the foreign judgment and the local court asked to recognise the judgment might also be of practical importance.

Over the past few decades globalisation increasingly amplified the importance of the issue of recognition of foreign judgments. People, companies, and assets move much easier and faster from place to place, and therefore the ability to enforce foreign judgments is sometimes essential. On the other hand, even in the face of globalisation, countries are still very much concerned about protecting their legal sovereignty from outside intervention.

The mixed interests and traditions of countries in this regard have resulted in a situation in which in spite of widespread recognition of the need for an international multilateral convention on the subject of enforcement and recognition of foreign judgments, almost thirty years were required to reach an accord on the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters of 2 July 2019 (the “Convention”).² The Convention entered into force between the EU and Ukraine on 1 September 2023.³

One of the problems with enforcement and recognition of foreign judgments might be that countries lack sufficient data and understanding of the practices of other countries in this field. Data is important for policy makers to reach more informed decisions about appropriate rules for enforcement and recognition. Therefore, empirical studies in the field are very helpful and important to both scholars and practitioners. For instance, if a country has data about whether the second country is consistently enforcing foreign judgments from countries with which it entered into relevant treaties, it might be more willing to sign with the latter a treaty on this subject. Also, if there is data that countries are less likely to enforce foreign judgments on a certain subject matter, it might encourage the international community to draft a treaty that promotes more cooperation in enforcing judgments on this subject matter.

Whereas the field of public international law experienced a well-recognised “empirical turn,” this “turn” has not yet blossomed sufficiently in the field of private international law at the global level. Shaffer and Ginsburg quite famously analysed this development in public international law, and argued in favour of the importance of understanding how the law works in practice and not only in the books.⁴ A special focus in this regard has been given to the conduct and decision-making of international courts and tribunals.

Among the previous empirical research which has been conducted on private international law, one can mention a study on choice of forum in transnational litigation,⁵ choice of forum in merger and acquisition contracts,⁶ and choice of law in division of matrimonial property.⁷ Regarding enforcement of foreign judgments, one can mention an empirical study about enforcement of commercial judgments in China.⁸ In this article Tsang analyses descriptively the judgments of Chinese courts on the subject, and argues that China will not expand its enforcement regime substantially. Another study about the refusal of recognition and enforcement of foreign judgments in the UK and the Commonwealth was conducted by Yekini.⁹

In order to broaden the empirical research on enforcement of foreign judgments, in this article the author analyses empirically how enforcement of foreign judgments works de facto in Israel.¹⁰ For this purpose the author created an original hand-coded dataset of all cases regarding enforcement of foreign judgments in the last thirty years in Israel.¹¹ Using a quantitative empirical approach, the article explores whether and to what extent the vested rights and comity theories play a part in the decisions by Israeli courts on enforcement of foreign judgments. For instance, the article examines whether such variables as volume of trade between countries, political proximity and judicial independence increase the foreign judgment enforcement probability. The article also looks into additional case and courts characteristics that might influence the decision to enforce a judgment – such as the geopolitical centrality of the court district in the enforcing country, the subject matter of the case, and the characteristics of the parties to the case. All these can provide us with a better picture of how enforcement of foreign judgments works in Israel, beyond the black letter law.

The article finds first and foremost that the chances of enforcement are influenced by the specific characteristics of the Israeli court and the foreign judgment. For instance, judgments with a contractual-commercial nature are more likely to be enforced than family law judgments. Also, the chances of enforcement are higher when the plaintiff is a corporation, and the request for enforcement is filed in one of the central districts of Israel (which are more likely to adjudicate commercial cases). Regarding the vested rights theory, it seems that the general features of the legal system and political institutions in the country matter less to the court, however the due process in individual cases might have some influence on the enforcement decision. Finally, regarding the comity theory, it seems that the volume of trade between the countries can predict to some extent the chances of enforcement of a foreign judgment, although no definite causal connection can be established. This also resonates with the tendency to enforce contractual-commercial judgments.

The article proceeds as follows. Part B introduces the general literature concerning recognition and enforcement of foreign judgments. Part C introduces the relevant Israeli Law on enforcement of foreign judgments. Part D presents the detailed research hypotheses, part E provides the descriptive statistics, and part F the results of the regression analyses. Part G discusses what inferences might be drawn from the results presented.

B. Recognition and enforcement of foreign judgments

1. Introduction to enforcement and recognition of foreign judgments

Recognition of foreign judgments is a relatively young field in private international law, since historically many countries, mainly from the continental legal family, did not enforce foreign judgments in the absence of a convention or intergovernmental agreement.¹² As a rule, foreign judgments do not have automatic force in other countries, and different countries set their own rules for recognition and enforcement of foreign judgments.¹³

Incorporation of foreign judgments usually takes two forms: enforcement and recognition. Enforcement, which concerns mainly (but not exclusively) in personam judgments, allows the judgments to be implemented in the forum country.¹⁴ It should be noted that in most countries, including Israel, the enforcement of foreign judgments is not limited only to monetary judgments. However, enforcement is usually limited to civil and commercial matters.¹⁵ Therefore, foreign judgments in public law are not usually enforced. The second form of incorporation is recognition of foreign judgments. Recognition is (in general) the possibility to use the judgment as a res judicata and is relevant for both in personam and in rem judgments.¹⁶ In many countries, but not in Israel, recognition of a foreign judgment is a prerequisite to its enforcement. Therefore, wherever there is reference to recognition of a foreign judgment in this part it includes enforcement.

There are several reasons for why countries are hesitant to recognise foreign judgments. First and foremost, judgments rendered by foreign courts are seen as a manifestation of the foreign country’s sovereignty.¹⁷ Simply allowing foreign courts to issue obligating decisions to the authorities of another country may harm the sovereignty of the latter country.¹⁸ Also, foreign judgments sometimes reflect the specific values and traditions of the country that issued them, which are not necessarily similar to the values and traditions of the implementing country. Moreover, the foreign judgment might contradict various policies that the country seeks to promote.¹⁹ Countries can also be hesitant to recognise foreign judgments for fear of lack of reciprocity (even if they have a treaty on the subject).²⁰

However, there are also very good reasons for countries to be more welcoming of foreign judgments’ enforcement. As aforementioned, globalisation increases the costs of ignoring foreign judgments. In a globalised world, persons (both natural and legal) own assets in many different countries, and they easily transition between them.²¹ International business might be severely impaired if countries completely refused to recognise other countries’ judgments. For instance, companies would be hesitant to enter into international agreements knowing that they might have to litigate the same case in multiple jurisdictions.²² Denying judicial remedies provided in a foreign court might also harm the right of access to justice of a party, and harm his or her right to receive an effective remedy.²³ Moreover, this would enable entities to easily relocate assets from jurisdiction to jurisdiction in order to evade unfavourable judgments (even though this is obviously irrelevant to immovables, and can be relevant only when the debt following the judgment is higher than the relocation costs).²⁴ Accordingly, non-enforcement would significantly increase transaction costs and legal uncertainty.²⁵

It could also be more economically efficient for countries not to allow re-litigation of claims decided in foreign courts, reducing the burden on their own legal systems.²⁶ Often, litigation between parties drains resources both from the parties and from the country authorities. Therefore, it is irrational to simply ignore a foreign judgment for no special reason.²⁷ Countries might also be interested in recognising foreign judgments due to international relations concerns, particularly incentivising other countries to reciprocally recognising their own judgments.²⁸ Finally, one might also argue that it is problematic and inefficient for a jurisdiction that might have only a peripheral (if any) connection to the transaction, to review a decision of a court that is the more natural forum for litigating the case.²⁹

For all the reasons above, most countries have increasingly avoided dismissing or ignoring foreign judgments. Instead, they have adopted certain conditions under which a foreign judgment should be recognised. These rules often reflect the subtle equilibrium between the different interests involved in recognising foreign judgments.³⁰

2. Comity, vested rights, and specific characteristics of the case and the legal system

There are two main theories about why and when countries should recognise foreign judgments – international comity and vested rights.³¹ According to the seventeenth-century Dutch jurist Ulrich Huber, recognition of foreign judgments rests upon comity and it should be declined when the interests of the forum or of its subjects are impaired.³² Comity reflects the idea that deference to foreign law promotes the mutual politeness and concerns of sovereigns.³³ Therefore, the theory of international comity argues that countries should recognise foreign judgments mainly because of international relations considerations, thus respecting the foreign sovereign. Whereas there are opinions that interpret the comity theory more narrowly – as respecting the jurisdiction of the foreign sovereign,³⁴ other theories argue that the respect for the foreign sovereign incorporates considerations of foreign relations between countries, and therefore the respect of the jurisdiction of foreign countries is dependent on the specific relations with those countries.³⁵

It might be argued that under the comity theory countries would be more likely to recognise judgments of foreign countries with which they share closer relations – political, cultural and trade.³⁶ Under the comity theory countries are also more incentivised to form international treaties on recognition of judgments. Also, some of the interpretations of the comity theory point out the importance of the reciprocity requirement – namely, that the foreign country also recognises its judgments.³⁷ Therefore, according to the comity theory what matters most is the identity of the country that issued the judgment, whereas the rights of the side in the favour of which the judgment was rendered are of secondary importance. It should be noted that this approach can be seen as problematic in certain cases since it can “punish” individuals for the acts or omissions of foreign countries, thus depriving them of their own legal rights.³⁸

The second theory of recognition of foreign judgments is the vested rights theory (or the obligatio theory). This theory assumes that foreign judgments should be recognised because they create an obligation of one party towards the other.³⁹ The focus is on the specific circumstances under which the judgment has been issued,⁴⁰ and whether the obligations or rights have been duly acquired.⁴¹ Therefore, the criteria for the recognition of a foreign judgment focus more on the due process of the procedures in the issuing country. If the rights of the parties to the procedure had been secured then the tendency would be to recognise the judgment. It should be noted that under the vested rights theory the relations between the two countries have no importance whatsoever. Therefore, for example, the question of reciprocity is irrelevant to the vested rights theory.

There are also varied opinions as to what precisely the court should consider when determining the existence of due process in a case. On the one hand, the U.S. Federal judge Richard Posner suggested that the court should look only into whether the country issuing the judgment is a “civilised” one. Therefore, the only thing that matters is whether the country, in general, has a fair legal system.⁴² On the other hand, it can be argued that it does not matter how generally fair the legal system is, but what matters is whether there have been flaws in securing the due process rights of the specific sides in a specific case.⁴³ Moreover, there is an ongoing debate among English scholars on whether the considerations for recognition should be more formal (for example, insisting on the principles of presence and submission), or based on a more flexible notion of justice (as some scholars claim that used to be the case in England in the 18th and 19th centuries).⁴⁴

Traditionally, civil law countries lean more towards the comity approach. In contrast, England and most other common law countries lean more towards the vested rights approach.⁴⁵ The United States, on the other hand, officially adopted the comity theory,⁴⁶ but de facto also incorporated the vested rights theory in many cases.⁴⁷

It is important to point out that these two theories are not necessarily mutually exclusive. As a matter of fact, currently most of the legal systems use to a certain extent both theories for recognition of foreign judgments.⁴⁸ Moreover, even though every country has its own conditions for recognition of foreign judgments, there are relatively many similarities regarding the conditions under which it is done. For instance, most countries require the judgment to be final, to follow certain jurisdictional requirements, and due process (such as notice and opportunity to be heard). Countries would also recognise defences such as fraud, and the existence of inconsistent judgments on the subject.⁴⁹ Also, many countries have a public policy exception to recognition of foreign judgments. Finally, countries do not enforce judgments of public character such as tax law and penal law.⁵⁰ However, interpretations by countries of the conditions for recognition might vary significantly. For instance, whereas certain countries can see a judgment as final when it is not appealable anymore, others might consider a judgment final after it was rendered by a trial court.

Given that there are various interpretations possible as to what the comity and the vested rights theories mean,⁵¹ in this empirical study for practical reasons they are interpreted as follows. Comity theory is interpreted from an international relations perspective – meaning, the countries are more likely to respect the jurisdiction of foreign countries with which they have political, cultural and economic ties. On the other hand, the vested rights theory is interpreted from a due process perspective, meaning that the legal system is a fair one and that the legal procedures in the specific case before the court were fair (according to the relevant Israeli law).

Finally, it should be briefly mentioned that there is a wide array of empirical literature about how general characteristics of courts and cases influence the legal outcomes of a case.⁵² For instance, there is research which indicates that under certain circumstances trial courts and appellate courts decide cases differently.⁵³ Also, research showed that presiding as a panel (as opposed to a single judge), as well as the panel composition, can change the legal outcome.⁵⁴ Moreover, prior research demonstrated that the subject matter of the case might influence the judicial decision-making process. For instance, Peresie showed that in sexual harassment and sex discrimination cases, women judges were more likely to vote in favour of the applicant.⁵⁵ Therefore, in empirical research specific characteristics of the court and the case should be taken into account as a third and complementary explanatory theory to the latter two.

The author does not argue that the theories above can predict perfectly the outcome of the case, and obviously there are other not less important factors such as the provisions of the specific national legislation (which often incorporates those theories), as well as technical aspects of cases. However, the author does believe that these theories might play a part in the judicial decision-making, and this article seeks to test empirically if that is true.

C. Recognition and enforcement of foreign judgments in Israeli Law

This part briefly reviews the Israeli legal rules on the subject of enforcement of foreign judgments. Unlike many other jurisdictions, Israeli law and jurisprudence regards enforcement (enabling the execution of a foreign judgment) and recognition (using a foreign judgment as a res judicata) as two separate routes with different requirements. For instance, whereas according to section 11(a) of the 1958 Foreign Judgments Enforcement Law (the “Enforcement Law”),⁵⁶ recognition is possible only when there is a relevant treaty, a treaty is not required for enforcement of a foreign judgment. Given that Israel is a party to only four international treaties on the subject, and even these have not been ratified, the route of direct recognition is almost never used. This problematic legal situation means that currently it is practically impossible to recognise in Israel foreign succession orders, insolvency orders, divorce judgments and declaratory judgments. Enforcement of a foreign judgment means only an indirect recognition of a foreign judgment.⁵⁷ However, Israel is somewhat more liberal regarding incidental recognition of a foreign judgment – according to section 11(b) of the Enforcement Law, an Israeli court is allowed to incidentally recognise a foreign judgment “only for the purposes of a specific matter within its jurisdiction […] if it considers that law and justice so require.” ⁵⁸

Therefore, this article focuses on enforcement, and the next paragraphs discuss only the rules relevant to it. There are two possibilities to enforce a foreign judgment in Israel – the statutory route and the common law route. The common law enforcement route has somewhat different requirements from the statutory requirements for enforcement. Given that the common law route was discussed by courts only once since 1990 in the reported cases (and even then, in parallel with the regular statutory route),⁵⁹ the article will not examine it.

The statutory route of enforcement and recognition of foreign judgments in Israeli law is governed by the Enforcement Law.⁶⁰ Section 1 of the enforcement law states that it only applies to civil judgments (including compensation or damages for a victim, even if not given in a civil process). The article will now discuss its main provisions.

Section 3 of the Enforcement Law states that the foreign judgment must be rendered by a court which, under the laws of the Country of the issuing court, was authorised to give the judgment (direct jurisdiction).⁶¹ Furthermore, the judgment should not be appealable,⁶² but the law does not require the judgment to be res judicata, and therefore maintenance obligations judgments are also enforced. The judgment should be enforceable under Israeli Law –⁶³ even though it is quite hard to envision a judgment that could not be enforceable under Israeli Law, and a foreign judgment was never refused enforcement for this reason, the requirement still exists in the Enforcement Law.⁶⁴ Also, the judgment should be enforceable in the country in which it was given.⁶⁵ The judgment should not contradict Israeli public policy – a requirement which was interpreted in a very restrictive way, and is rarely accepted by courts.⁶⁶

Section 4 of the Enforcement Law states that there is a requirement of reciprocity in enforcing judgments between the foreign court and Israel.⁶⁷ As discussed later in this article, in recent years the Israeli courts interpreted this requirement very leniently, requiring only a “potential of enforcement.”⁶⁸ Section 5 provides a limitation period of five years for enforcement of foreign judgments, with some discretion to extend this period if there are special circumstances justifying the delay.

Section 6 of the Enforcement Law elaborates on the different defences against enforcement of a foreign judgment.⁶⁹ The first of the possible defences is obtainment of the judgment by fraud. There is an ongoing debate in Israeli courts about what actions should be considered as fraud in this regard. On the one hand, there is jurisprudence which interprets the defence of fraud in a more lenient way, making it easier to annul a foreign judgment than an Israeli judgment on these grounds. On the other hand, some jurisprudence tends to interpret the criteria for the defence of fraud in the same way as interpreting the criteria for annulment of an Israeli judgment (that is only where there is new evidence that could not have been obtained during the trial).⁷⁰

Another possible defence is that the defendant was not provided with a reasonable chance to bring his or her defence before the foreign court.⁷¹ The courts interpreted this defence as an objective flaw in being notified of the trial, and objective obstacles to being able to argue the case before the court.⁷² Another important defence is that the judgment was given by a court unauthorised to do so by the private international law of Israel (indirect jurisdiction). Whereas the law itself does not provide the grounds for indirect jurisdiction, the Supreme Court interpreted it as requiring residency (even if temporary) in the foreign country at the time of the commencement of the proceedings, or agreement to the jurisdiction of the court.⁷³

Two final defences are the existence of contradictory judgments on the same matter,⁷⁴ and that at the time that the action was brought in the foreign court a suit concerning the same matter between the same parties was pending before a court or tribunal in Israel.⁷⁵ Finally, section 7 permits non-enforcement of a foreign judgment for national security reasons, and section 8 permits the court to enforce interim measures under special circumstances.

As can be seen, whereas some of the provisions of the Israeli legislation reflect the vested rights theory, others reflect the comity theory. For instance, most of the provisions in sections 3 and 6 of the Enforcement Law provide safeguards for the due process of the procedure in the foreign court, ensuring that the right created by the foreign court is a just one. On the other hand, comity is ensured in provisions such as the requirement for reciprocity (section 4), the authority not to enforce a judgment on national security reasons (section 7), and the requirement for the judgment to be on a civil matter (section 1). Also, the requirement for grounds of indirect jurisdiction (section 6(3)) can be relevant to comity as well as to the vested rights theory. This is because like all the other provisions related to comity, it ensures the mutual relations and respect between sovereign countries on the one hand, but on the other hand ensures that one sovereign does not “trespass’ the sovereignty of the other.

Israel signed the Convention on Enforcement and Recognition of Foreign Judgments in 2021 but has not ratified it yet.⁷⁶ There are three noteworthy differences between the Convention and the Israeli Enforcement Law. The first is that the Convention does not apply to a wide variety of subject matters to which the Israeli Law does apply – such as family law matters (including maintenance obligations),⁷⁷ defamation,⁷⁸ privacy⁷⁹ and intellectual property.⁸⁰ Also, whereas under section 3(2) of the Enforcement Law the judgment should be final, the Convention only requires the judgment to be enforceable in the state of origin (although Art. 3(b) of the Convention does define a judgment as any decision on the merits given by a court, and excludes interim measures).⁸¹ Finally, the Convention provides wider bases for indirect jurisdiction than Israeli law currently does. For instance, as mentioned above, according to the Israeli jurisprudence a natural person should be a resident of the state at the time in which the proceedings have been initiated. The Convention, on the other hand, recognises indirect jurisdiction also when the natural person had its principal place of business in the relevant country at the time in which the proceedings had been issued and the claim on which the judgment is based arose out of the activities of that business.⁸² To the best knowledge of the author of this article, Israel intends to amend the relevant legislation to comply with the Convention.

It should be noted that the Israeli experience with the Hague Child Abduction Convention shows that Israeli courts are willing to comply with Israel’s international obligations. Therefore, when there are international Conventions involved, Israeli courts are more likely to enforce judgments in border-line cases brought under the relevant Convention.⁸³

Besides the Convention mentioned above, Israel also has bilateral treaties with four countries regarding enforcement and recognition of judgments – Spain, United Kingdom, Austria and Germany, but these treaties have not been ratified and therefore not adopted into Israeli law.⁸⁴

It should be noted Israel might have certain limitations as a case study in comparative law. First, Israel is a small country which is highly dependent on foreign trade. It also has a significant high-tech industry that is very global by nature.⁸⁵ These two factors might increase the need of the state to be more open to foreign judgments. Moreover, the Arab-Israeli conflict might make Israel more (or less) in need of international cooperation. Finally, two other specific features might make Israeli courts especially open to foreign law. First, comparative law is used quite often in Israeli courts, especially in the higher instances.⁸⁶ Second, many of Israel’s leading legal scholars have been educated partially abroad.⁸⁷ It is true that openness to foreign law is not necessarily the same as willingness to enforce foreign judgments, but one might argue that close familiarity with other legal systems might make a judge more willing to enforce judgments of foreign courts.

Following the review of the requirements according to the letter of the law for enforcement, the research hypotheses and the empirical data on how the law is de facto implemented by the Israeli courts are presented below.

D. Research hypotheses

This research tries to give an answer regarding which factors might influence the probability that an Israeli court enforces a foreign judgment. As explained, there are two central theories in the literature as to when that happens – international comity and vested rights. In addition, the article also examines the theory of how the characteristics of the case and the court influence the court’s decision. Therefore, the author chose independent variables to operationalise different aspects of those theories. Some of those variables might be relevant to more than one theory, but the author assigned each variable to the most relevant theory.

Also, when seeking to operationalise the vested rights approach, for practical reasons the author used variables that operationalise the due process of the judicial system as a whole, and not the specific fairness of the processes in the case before the court. This approach was chosen since it is impossible to measure the due process in a specific case (that is impossible to assign a numeric value that can be used in a regression for statistical analysis). The author found that a claim against the fairness of the system itself was raised explicitly only once – arguing that the Russian court favoured the Gazprom corporation,⁸⁸ and in another case it was only hinted at.⁸⁹ This can probably be attributed, among others, to the fact that the Israeli law does not recognise directly lack of due process of the system as a defence from enforcing a foreign judgment. However, the due process of the judicial system as a whole can be relevant for two main reasons. First, a certain general knowledge about the fairness of the legal system might indeed influence the decisions of judges, even if they do not write it explicitly. Also, it might be argued that the chances that the individual due process rights are observed, are higher in a legal system which is more independent in general. Therefore, it is a good proxy in a situation where one cannot objectively assign a numerical value to the specific due process in a case.

1. Dependent variable

The article uses enforcement as the dependent variable – the variable of interest that it is trying to predict. This dummy variable is assigned a value of 1 if the Israeli court decided to enforce the foreign judgment (fully or partially), and 0 otherwise. A “dummy variable” is a variable that can take only one of two possible values – in our case, either the case was enforced, or it was not enforced.

2. Vested rights

1. Polity – the polity score measures the regime in a country, and it ranges from 10 for strongly democratic countries to −10 for strongly autocratic countries.⁹⁰ The article hypothesises that Israeli courts would be more willing to enforce a judgment from a country with a high polity score, because its institutions (especially judicial institutions) are more likely to protect due process rights. It should be noted that when the Hague Judgments Convention is ratified and comes into force, if a Contracting State has accepted Treaty relations with another Contracting State under Article 29 of the Convention, it would be harder to argue explicitly that there is a problem with the political situation of the issuing country.⁹¹

2. Judicial independence – judicial independence is measured on a scale that ranges from 0 for lowest judicial independence, to 2 for the highest judicial independence.⁹² The article hypothesises that Israeli courts are more likely to implement judgments from countries with a high score of judicial independence, because their courts are more likely to safeguard the due process rights of the litigants. It is true that the judges do not necessarily inspect international reports on the subject, but judges might hold a general knowledge (and perhaps even prejudice) regarding judicial systems of certain countries.

3. Human rights score – the human rights score of a country is measured on a scale of lowest to highest (−2.067751 - 4.52492).⁹³ As above, the article hypothesises that Israeli courts would be more likely to implement judgments from countries that respect human rights (or at least that are widely perceived as respecting human rights).

3. Comity

1. Mutual vote – the percentage of instances when Israel and the country issuing the judgment voted together in the United Nations General Assembly resolutions during the year of the Israeli court’s judgment.⁹⁴ This variable serves as a proxy for political relations between countries. The article hypothesises that Israeli courts are more likely to enforce judgments of countries that are politically close to Israel.

2. Trade – the sum of export and import between Israel and the issuing country in millions USD.⁹⁵ The article hypothesises that Israeli courts are more likely to enforce judgments of countries that have a high volume of trade with Israel.

3. Treaty – codes whether Israel has a treaty on the subject of enforcement and recognition of judgments with the issuing country. This dummy variable is coded as 1 if there is a treaty, and 0 otherwise. The article hypothesises that even though a treaty is not required for enforcement and Israel did not adopt those treaties into Israeli law, a court might be more willing to enforce a treaty with one of the countries with which Israel signed a treaty on the subject.

4. Specific characteristics

1. Supreme court – this variable codes whether the judgment was given by the Israeli Supreme Court or by a lower court. It is coded as 1 if it is the Supreme Court, and as 0 otherwise. The article hypothesises that the Israeli Supreme Court is more likely to enforce a foreign judgment than lower courts. Prior research has shown that lower courts are more conservative than higher courts, and the article hypothesises that this might lead them to be more hesitant to enforce a foreign judgment.⁹⁶ On the other hand, one might also argue that more conformity can lead to higher chances of enforcement if a court chooses to follow only the letter of the law (without extra-legal considerations). It should be also pointed out that the Supreme Court hears these cases only as an instance of appeal.

2. Central district – this variable codes whether the judgment was given by one of the courts belonging to the central districts in Israel (Tel-Aviv District, Central District, Jerusalem District and the Supreme Court), or by one of the other districts. The central districts are coded as 1, and the other districts as 0. The article hypothesises that Israeli courts located in the centre of the country are more likely to enforce a foreign judgment than peripheral courts because judges in those courts are more likely to be exposed to international cases due to their location, and also perhaps the judges in those courts worked prior to their appointments in big law firms and therefore had more interactions with foreign law.

3. Panel – this variable is coded as 1 if there was a panel deciding the case, and 0 otherwise. It should be noted that since in civil matters panels preside only in appeal cases, there was no way to distinguish between these two functions. The article hypothesises that presiding as a panel might have an influence on the decision to enforce a foreign judgment (in either way), because prior research on judicial behaviour showed that in certain cases judicial panels behave differently than single judges.⁹⁷

4. Subject matter of the foreign judgment – These are dummy variables coding whether the case belongs to one of the following subject matters – contracts/ commercial, torts, family, bankruptcy, corporate, intellectual property, other/unclear. The article hypothesises that in certain subject matters courts would be more likely to enforce foreign judgments than in others. For instance, the courts might be more likely to enforce commercial and contract law cases because in a globalised commercial world it is more efficient to do so, and parties making business transnationally are likely to expect it. On the other hand, subject matters such as family law, are less likely to be enforced, since family law is many times more connected to the traditions and cultures of different countries.

5. Defendant/ plaintiff corporations – these two dummy variables are coded as 1 if at least one of the defendants or plaintiffs in the case is a corporation. The article hypothesises that courts would be more likely to enforce a judgment in which one (or both) of the sides are a corporation, since they might have more power in managing transnational litigation.

Additionally, as mentioned above, the Enforcement law itself includes both provisions regarding the due process of the foreign procedure, reflecting the vested rights theory, as well as provisions guaranteeing the international relations of the foreign state and safeguards for sovereign interests, which reflects the comity theory. Therefore, one should also look into the descriptive statistics of what reasons have been given by the courts when they decided not to enforce a judgment.

E. Descriptive statistics

The author coded all the judgments issued by the Israeli courts (all instances) in cases where an enforcement of a foreign judgment was requested by one of the parties. The enforcement dataset includes judgments issued between 1.1.1990 to 1.5.2020, and the number of total cases coded is 114.⁹⁸ The cases were coded from the Israeli Nevo legal database.⁹⁹ Given that the dataset has a relatively small number of observations, the role of descriptive statistics is of particular importance for the research. This is because inferential statistical tests rely very much on the number of observations, and therefore in a smaller dataset important information can be lost when one looks only at statistical significance. Since the year 2000 most of the family law cases are not accessible to researchers. The cases which are accessible, are either cases that the Israeli Judiciary Authority considers to be of special importance, or cases which the judges themselves submit for publication.¹⁰⁰ If the decision to publish a case is somehow related to the decision on enforcement of a foreign judgment, this might result in a certain bias.

According to the dataset, in 71.05% of the cases (81 out of 114) the court decided to enforce the foreign judgment. Among the cases in which it was decided to enforce the foreign judgment, in 96.2% the court ruled to fully enforce the judgment, with partial enforcement for the remainder. Accordingly, most requests to enforce foreign judgments are approved by Israeli courts. The next paragraphs provide a more detailed description of the characteristics of the cases in the dataset.

First, it is important to understand the subject matters of the foreign judgments which the court is asked to enforce. The following chart provides this information:

As can be seen from figure 1, most of the enforcement of foreign judgments cases concern contract/commercial matters. Together with corporate cases, these categories account for half of the total cases. This might come as no surprise, since as explained above, the need to promote cooperation on enforcement of international judgments is very much driven by the globalisation of trade. Also, given that Israel is a small country, transnational trade might be even more important to it, and thus increase the number of cases with foreign sides.

Figure 1 . Subject matters.

Table 1 shows what are the chances that the court decides to enforce foreign judgments by subject matter:

Table 1 Enforcement by subject matter.

Subject Matter	Enforcement Denied	Enforcement Approved
Contracts and commercial	11 (22%)	39 (78%)
torts	1 (33.3%)	2 (66.67%)
family	13 (48.15%)	14 (51.85%)
bankruptcy	4 (80%)	1 (20%)
corporate	0 (0%)	7 (100%)
intellectual property	0 (0%)	1 (100%)
Other/ unclear	4 (19.05%)	17 (80.95%)

As can be seen in table 1, the type of cases in which enforcement has always been granted are corporate cases and intellectual property cases. However, the number of those cases brought before Israeli courts is very low (7 corporate cases and only 1 intellectual property case), so these results should be taken with caution. Also, contract and commercial cases are also very likely to be enforced – 78% of the requests for enforcement were granted. On the other hand, bankruptcy judgments are less likely to be enforced (only 20% enforcement). Interestingly, in family law cases (that usually focus on child support) only around half of the foreign judgments are enforced.

When the author performed a chi2 test to determine whether there was a statistically significant difference regarding chances of enforcement between the different subject matters,¹⁰¹ it was significant on the p < 0.05 level (Pearson chi2(6) = 16.6370 Pr = 0.011). This means that the subject matter of the case influences the chances of the foreign judgment enforcement on a statistically significant level.

It is also important to examine the legal reasoning of the Israeli courts when they deny requests for enforcement. Given that a court can mention more than one reason for not enforcing judgments, the number of reasons for denying enforcement (N = 56) is higher than the number of cases in which the request for enforcement was denied. The following table summarises the findings:

The most interesting finding from table 2 is that claiming fraud as a defence for non-enforcement was never accepted by Israeli courts during the research period. Moreover, pending procedure, sovereignty, and national security, have also not been accepted by Israeli courts as a defence. Given that Israel is a state in which national security plays an important role, it might be seen at first glance as quite surprising. On the other hand, since the cases before the court are usually civil and commercial ones there are less chances that a national security defence would be relevant.

Table 2 Reasons for denying enforcement.

Reason for denying enforcement	Number of Cases	Percentage
Judgment is not civil or not a judgment (Section 1 of the Enforcement Law)	3	5.35%
Lack of jurisdiction in the courts of the issuing state (Section 3(1))	5	8.92%
Judgment not final (Section 3(2) of the Enforcement Law)	7	12.50%
Judgment is against public policy (Section 3(3) of the Enforcement Law)	4	7.14%
Lack of reciprocity in enforcing Israeli Judgments (Section 4 of the Enforcement Law)	3	5.35%
Statute of limitation (Section 5 of the Enforcement Law)	4	7.14%
Fraud (Section 6(a)(1) of the Enforcement Law)	0	0%
Due process – lack of opportunity to present case in the foreign court (Section 6(a)(2) of the Enforcement Law)	5	8.92%
Contradicting Israeli rules of jurisdiction in private international law (Section 6(a)(3) of the Enforcement Law)	6	10.71%
Contradicting judgment (Section 6(a)(4) of the Enforcement Law)	4	7.14%
Pending procedure (Section 6(a)(5) of the Enforcement Law)	0	0%
Sovereignty or national security (Section 7 of the Enforcement Law)	0	0%
Impossible to implement (Section 3(4) of the Enforcement Law)	3	5.35%
technical/ procedural/ other	12	21.42%
	Total = 56

Also, the claim that the foreign judgment contradicted public policy was accepted only four times by Israeli courts.¹⁰² For instance, in Andrew v Levin,¹⁰³ the court ruled that the foreign judgment should not be enforced because it contradicts public policy by undermining the Israeli bankruptcy laws, and the protections that these laws grant to creditors. Also, in SSBH v ABH,¹⁰⁴ the Israeli court ruled that since the foreign court was aware of a judgment given by an Israeli court in accordance with the Hague Child Abduction Convention and ignored it, enforcing the foreign judgment would contradict the Israeli public policy (Article 3(3) of the Enforcement Law).

Lack of reciprocity was listed as a reason for denying enforcement in three judgments. In these judgments the court was asked to enforce judgments from Georgia,¹⁰⁵ Ukraine¹⁰⁶ and Switzerland (in the latter it was only ruled by the court that reciprocity was not proven and therefore request for enforcement was denied).¹⁰⁷ As discussed later, the defence of lack of reciprocity was not accepted by courts in cases where the judgments had been issued by Russia and China,¹⁰⁸ even though these countries are very vague regarding their policies on enforcement of Israeli judgments.

Finally, the most frequent reason for non-enforcement was technical or procedural (or a reason other than specified in the Enforcement Law), which amounted to 21.42% of the reasons for non-enforcement. As an example of these technical or procedural reasons for denial one can list the case of Wolinski v KBC Verzekeringe NV,¹⁰⁹ in which it was ruled that the foreign insurance company was not an authorised party to request the enforcement of the foreign judgment. Another example is the case of Isadora v Ben Ezra,¹¹⁰ in which it was ruled that the defendant and the company against which the foreign judgment was issued were separate legal entities. Also, in John Doe v Jane Doe,¹¹¹ and Wasserstein v Friedriechshain,¹¹² the plaintiffs did not attach the required documents such as the foreign judgment itself and the translation of the judgment. In the latter case, the legal expert opinion supporting the request also did not specify the relevant German legislation to substantiate the enforceability of the judgment in Germany as required by Israeli law. In a different case, SF v SF,¹¹³ both the trial court and the appeal court rejected a request to enforce a foreign judgment, among other reasons, because the legal expert opinion was not detailed enough. As can be seen from these examples, whereas some of the procedural flaws are too significant for the court to ignore (for instance not providing the court with the foreign judgment), others might be more subtle such as the depth of the legal expert opinion regarding the foreign law.

The following table provides comparative information regarding characteristics of countries from which judgments have been enforced compared to countries from which enforcement was denied by Israeli courts. The unit of analysis is a court case – therefore a country may appear in more than one category of enforcement. Given the relatively large volume of requests to enforce decisions from the US (see Annex), two tables are presented – one with US judgments, and one without.

Tables 3 and 4 reveal interesting patterns. Israeli courts are more likely to enforce judgments from countries which have a high volume of trade and high percentage of UN mutual vote with Israel, although the latter is not true when US judgments are excluded. On average, the countries from which Israeli courts grant enforcement also have a slightly lower polity, independence of judiciary and human rights scores. However, it should be noted that these results might not be as conclusive, since the differences in most cases (besides trade) are not very significant. Moreover, using a statistical t-test,¹¹⁴ only the trade variable in table 3 was somehow close to statistical significance, and even then, it did not reach customary statistical significance level (p = 0.011).

Table 3 Enforcement statistics by characteristics of countries with US judgments.

Variable	Average – Enforcement Denied	Average – Enforcement Approved	Difference
Trade	10,814.59	17,108.47	6,293.88
Mutual vote	0.69	0.74	0.05
Polity Score	9.56	8.86	−0.7
Independence of Judiciary	1.79	1.73	−0.06
Human Rights	1.12	0.71	−0.41

Table 4 Enforcement statistics by characteristics of countries without US judgments.

Variable	Average – Enforcement Denied	Average – Enforcement Approved	Difference
Trade	2,999.3	3,838.5	839.2
Mutual vote	0.58	0.55	−0.03
Polity Score	9.26	7.36	−1.9
Independence of Judiciary	1.65	1.35	−0.3
Human Rights	1.29	0.93	−0.36

The next table presents statistical information about the rest of the coded data – mainly data regarding the characteristics of the Israeli courts, the parties to the litigation, and the existence of a treaty between Israel and the country of the foreign judgment.

From table 5 it can be seen that using a chi2 test, the only two somewhat statistically significant variables (p < 0.1) are central district and plaintiff corporation. Regarding central district – the data does seem to suggest that the central districts in Israel are around 21% more likely to approve a request to enforce a foreign judgment as opposed to the non-central districts. Namely, the central districts might be more open to international judicial cooperation. However, another possible explanation can be that these districts have more commercial cases than peripheral districts, and commercial cases are more likely to be enforced. The regression analyses in the next part can help with resolving this question.

Table 5 Statistical data about cases and courts.

variable	Percentage enforced	Chi2	P-value
Panel = no	71.59%	0.054	0.86
Panel = yes	69.23%
Central district = no	54.54%	3.61	0.057 *
Central district = yes	75%
Supreme court = no	70.96%	0.0018	0.97
Supreme court = yes	71.42%
Plaintiff corporation = no	65.33%	3.49	0.06 *
Plaintiff corporation = yes	82.05%
Defendant corporation = no	69.41%	0.44	0.5
Defendant corporation = yes	75.86%
Treaty (with US cases) = no	71.42%	0.05	0.83
Treaty (with US cases) = yes	68.75%
Treaty (without US cases) = no	60.52%	0.33	0.57
Treaty (without US cases) = yes	68.75%

* p < 0.1

It is also noteworthy that courts are around 17% more likely to enforce a judgment when at least one of the plaintiffs is a corporation. The courts are also around 7% more likely to enforce a judgment when one of the defendants is a corporation, but that did not reach a statistically significant level. The reason for this might be that corporations have more resources to manage transnational litigations, and therefore the procedures in these cases are perceived as being fairer and granting the sides to the litigation their day at court. Alternatively, as mentioned above, these findings may also be a result of the specific subject matters on which corporations litigate. For instance, corporations are more likely to litigate commercial cases, while family law cases are generally irrelevant for them. The regression analyses in the next chapter might help to solve these questions as well.

F. Results – regression analyses

The next step is to test the hypotheses in a multivariate regression form. A multivariate regression enables us to control simultaneously for several variables that may influence the probability that the court decides to enforce a foreign judgment. For instance, as mentioned above, if we control both for the type of case and the type of district, we could find out whether the central districts are more likely to enforce foreign judgments because they receive more commercial cases, or regardless of this.

It should be noted that working with a relatively small dataset poses a few challenges. It is problematic to control for some variables, because those might have perfect prediction. For instance, the author wanted to control for the year in which the judgment was given and for the country that issued the foreign judgment, but since there were quite a lot of perfect predictions (that is all judgments in a certain year or from a certain country were always enforced or not enforced), the author could not do so. Perfect predictions, among others, also reduce the already limited number of observations in the dataset.

Although a choice was made not to control for specific countries (because the author did not want observations to be eliminated from the regression due to perfect predictions), the author did control for whether the foreign judgment was given by US courts. This is because 52.63% of the foreign judgments in the dataset came from the US (see Appendix). Moreover, because some observations are lost when controlling for case type, the author ran two sets of regressions – both with case type and without it. The author thought that it was important to run regressions also with case type, since one of the hypotheses was that the subject matter of the case increases the probability of enforcement. Also, there might be a connection between the type of case and other variables (such as district and whether one of the parties is a corporation).

Additionally, there were two sets of variables that were strongly correlated. The first set of variables was human rights, judicial independence, and polity score. Meaning, that countries with a high score for human rights were also more likely to have a high judicial independence score, and a high polity score. The second set of variables was mutual vote and trade (which is driven by the high number of judgments from the US). Therefore, to prevent a possible bias of the results, all these variables were not used together in all of the regression specifications. Since the dependent variable is a binary variable, a logit regression was chosen.¹¹⁵

For a better understanding of the results, it should be noted that when the regression coefficient (the number that is not in brackets in the tables) is positive, it means that there is a positive correlation between the coefficient of the variable and the chances of enforcing a foreign judgment. On the other hand, when the coefficient is negative, then there is a negative correlation between the variable and the chances of enforcement. However, only when the p-value of the coefficient is less than 0.1 (or even less than 0.05), are the results regarded as having statistical significance.

As can be seen from the regressions in table 6 (which controls for subject matters), the coefficients that gained statistical significance were central district, family and bankruptcy. The coefficient of central district was positive, and slightly statistically significant (in specifications 1–4 p < 0.1, and in specification 5 p < 0.05). This means that as in the descriptive statistics above, courts belonging to one of the three central districts in Israel were somewhat more likely to enforce foreign judgments even if we control for the subject matter of the case in the regression.

Table 6 Logit regressions with subject matters.

	(1)	(2)	(3)	(4)	(5)
VARIABLES	enforcement	enforcement	enforcement	enforcement	enforcement
Supreme	0.0229	0.0604	−0.0287	0.0232	−0.0165
Court	(1.402)	(1.443)	(1.499)	(1.446)	(1.466)
Central district	1.242*	1.171*	1.228*	1.206*	1.283**
	(0.690)	(0.659)	(0.710)	(0.660)	(0.648)
Panel	0.351	0.400	0.0282	0.391	0.373
	(1.350)	(1.330)	(1.506)	(1.358)	(1.329)
Defendant	−0.0745	−0.0501	−0.113	−0.0478	−0.0249
Corporation	(0.711)	(0.755)	(0.698)	(0.743)	(0.751)
Plaintiff	0.319	0.328	0.352	0.328	0.296
Corporation	(0.706)	(0.690)	(0.699)	(0.694)	(0.699)
Treaty	0.150	0.190	0.309	0.221	0.0862
	(0.961)	(0.969)	(0.937)	(0.929)	(0.915)
Human rights	−0.0250				−0.328
	(0.714)				(0.311)
Judicial	0.145	−0.479
independence	(1.222)	(0.791)
Polity score	−0.233		−0.243	−0.170
	(0.202)		(0.166)	(0.105)
Mutual vote	1.468	−0.409	2.468
	(4.617)	(4.456)	(4.476)
Trade	7.88e-05	9.33e-05		8.36e-05	7.85e-05
	(7.29e-05)	(6.06e-05)		(6.13e-05)	(6.35e-05)
Family	−1.402*	−1.299*	−1.459*	−1.368*	−1.343*
	(0.793)	(0.756)	(0.768)	(0.765)	(0.754)
Bankruptcy	−2.541*	−2.556**	−2.476*	−2.550**	−2.589**
	(1.324)	(1.280)	(1.403)	(1.267)	(1.236)
Unclear/ other	0.0468	0.107	0.180	0.0723	0.0924
	(0.738)	(0.724)	(0.716)	(0.739)	(0.754)
US	−1.032	−0.809	0.480	−0.683	−0.998
	(1.943)	(1.965)	(1.391)	(1.554)	(1.492)
Side implement	−0.331	−0.341	−0.0454	−0.345	−0.258
	(0.981)	(0.974)	(1.046)	(0.977)	(0.960)
Constant	0.565	0.512	0.515	1.013	−0.0702
	(2.163)	(1.993)	(1.909)	(1.143)	(0.815)
Observations	102	102	102	102	102

Robust standard errors in parentheses

*** p < 0.01, ** p < 0.05, * p < 0.1.

The other statistically significant coefficients were the subject matters of family law and bankruptcy. The coefficients of these variables were negative, meaning that in comparison to contracts and commercial cases (which were the reference group), they tended to be less enforced by courts. The statistical significance of the family coefficient was p < 0.1 in all the specifications in table 6. The coefficient of bankruptcy was p < 0.05 in specifications 2, 3 and 5, and p < 0.1 in specification 1 and 4.

Regarding the specifications presented in the table 7 (all cases in the dataset, but without controlling for subject matters), the coefficient of central district remained positive and slightly statistically significant (p < 0.1). Two other coefficients became statistically significant – trade and corporation plaintiff. The trade coefficient was positive and significant in the second specification (p < 0.05), and the fourth specification (p < 0.1). This means that countries with a high volume of trade with Israel are somewhat more likely to have their judgments enforced by Israeli courts. However, it should be noted that when a natural logarithm of trade instead of the regular variable was used, then the statistical significance disappeared. Meaning, that the variable might be somewhat sensitive to outliers. Also, the coefficient itself is very small – implying that whereas the influence of the volume of trade exists, its practical significance is rather limited. Finally, when the plaintiff was a corporation, the judgment was more likely to be enforced (p < 0.1).

Table 7 Logit regressions without subject matters.

	(1)	(2)	(3)	(4)	(5)
VARIABLES	enforcement	enforcement	enforcement	enforcement	enforcement
Supreme	−0.422	−0.388	−0.396	−0.442	−0.432
Court	(1.227)	(1.261)	(1.282)	(1.256)	(1.312)
Central district	1.200*	1.126*	1.192*	1.197*	1.251*
	(0.654)	(0.644)	(0.673)	(0.643)	(0.645)
Panel	0.497	0.528	−0.00960	0.527	0.508
	(1.142)	(1.141)	(1.246)	(1.143)	(1.161)
Defendant	0.531	0.523	0.504	0.531	0.590
Corporation	(0.657)	(0.691)	(0.666)	(0.681)	(0.686)
Plaintiff	0.984*	0.983*	1.057*	1.002*	0.973*
Corporation	(0.578)	(0.574)	(0.563)	(0.577)	(0.580)
Treaty	0.0557	0.102	0.207	0.0784	−0.0492
	(0.858)	(0.860)	(0.846)	(0.822)	(0.813)
Human rights	−0.0327				−0.428
	(0.744)				(0.293)
Judicial	−0.102	−0.675
independence	(1.392)	(0.728)
Polity score	−0.216		−0.291	−0.230*
	(0.261)		(0.199)	(0.133)
Mutual vote	0.841	−0.370	1.852
	(3.955)	(3.752)	(3.899)
Trade	0.000100	0.000110**		0.000102*	9.22e-05
	(6.67e-05)	(5.50e-05)		(5.45e-05)	(5.81e-05)
US	−1.265	−1.097	0.664	−1.053	−1.343
	(1.614)	(1.621)	(1.191)	(1.334)	(1.323)
Side implement	−0.355	−0.366	0.0898	−0.355	−0.311
	(0.929)	(0.911)	(0.972)	(0.907)	(0.954)
Constant	0.447	0.114	0.635	0.831	−0.675
	(1.988)	(1.634)	(1.637)	(1.232)	(0.697)
Observations	112	112	112	112	112

Robust standard errors in parentheses

*** p < 0.01, ** p < 0.05, * p < 0.1

G. Discussion

The main purpose of this article was to explore the patterns of foreign judgment enforcement in Israeli courts. The article looked into three main theories that might influence the court’s decision – vested rights, international comity, and general characteristics of the case and the legal system. These theories do not necessarily contradict each other, especially not the latter with the first two. Given that the dataset with which this article worked has a relatively limited number of observations, statistical inference is a challenge, and some important data might be lost if we look only at the traditional p-value. On the other hand, obviously non-statistically significant data should be treated with caution since the differences might be attributed to mere chance.

Another important comment is that Israel has quite clear rules regarding enforcement of foreign judgments in the Enforcement Law. There are critical legal theories which argue that judges are not really bound by the law, but rather use the law as a tool to reach the results that they wish.¹¹⁶ Also, there is a wide scholarship indicating that judicial decisions are prone to personal preferences and different biases, and that biases can be both conscious ones and unconscious ones.¹¹⁷ On the other hand, most legal scholars would find it hard to believe that the black letter law does not matter and a judge can decide whatever he or she pleases, and in our case – the provisions of the Enforcement Law do play an important (and perhaps even a central part) in the judicial decision-making. Therefore, the theories mentioned above might be evident in harder cases where the legal answer is not clear cut, whereas in the easier cases we will see less influence of extra-legal considerations.

It is true that a case in which a court dismissed an enforcement request on the grounds that the plaintiff failed to provide a copy of the foreign judgment would be seen by most of the legal scholars as an easy case for judges.¹¹⁸ On the other hand, the reciprocity cases which would be discussed below, in which the courts had to decide whether a country that does not systematically enforce Israeli judgments meets the requirement of reciprocity, would be classified as a harder case.¹¹⁹ However, in general, it is very complicated, and perhaps even impossible, to find clear rules to code a case as an “easy” case (that is a case that the legal result should be relatively clear) or a “hard” case (that is a case that the legal result is relatively ambiguous and debatable) for quantitative research. Moreover, the classification of a case as an “easy” or a “hard” one is very subjective, unlike objective data such as volume of trade or the subject matter of the case, and can open quantitative-empirical research to huge criticism.¹²⁰

However, quantitative-empirical research can be helpful as it relies largely on statistical significance. For example, in judicial behaviour research, a researcher cannot know and code what should have been the “right” decision in the case, where a deviation from the right decision could be seen as a bias. What empirical research can show us is that the chances that a judge voted in a certain way in many cases, regardless of a bias, is very unlikely. The same is true for the current research. Whereas, for instance, no one can prove beyond a reasonable doubt that judges are more likely to enforce judgments from countries with which Israel has a large volume of trade, the statistical significance can indicate that the tendency to enforce judgments from those countries is unlikely to be attributed to mere chance. However, famously, correlation does not necessarily always mean causation.

Finally, one of the biggest critiques of quantitative empirical research is that it reduces the research to reductionism and simplification.¹²¹ For instance, it is true that quantitative empirical research many times has to use proxies in order to operationalise concepts of interest. In our case, it is impossible to directly measure and code theoretical terms such as comity or vested rights (over which even the doctrinal literature has a debate of what they exactly mean). However, using proxies such as volume of trade, polity score and judicial independence can provide us with useful understandings of a system as a whole – something which more theoretical case-based research cannot.¹²²

The data suggests that the Israeli legal system is open to enforcement of foreign judgments, and those judgments are indeed enforced more than 70% of the time. This is of course, also due to the clear provisions of the Enforcement Law, and not only because of judicial policy. Moreover, if we take out requests for enforcement that have been denied on procedural grounds, or because of more procedural considerations (such as statute of limitations, impossibility to enforce, and the judgment being not final), we are looking at an even higher percentage of enforcement. Even though one can argue that there might be a certain “selection effect,” given that potential plaintiffs might not request the courts to enforce a foreign judgment in the first place if they know that their chances to win the case are very low, one can probably say that Israeli courts treat enforcement of foreign judgments favourably.

As for the three theories mentioned above – vested rights, comity and general characteristics of the court and the case, in my opinion the most important finding is that enforcement is somewhat dependent on the specific characteristics of the Israeli court hearing the request for enforcement and the foreign judgment itself. For instance, one of the most consistent findings was that the subject matter of the judgment might have an influence on the probability of enforcement. The abovementioned willingness to enforce judgments might also be attributed to the fact that around half of the foreign judgments that the courts are requested to enforce related to contracts, commercial matters, corporate law or intellectual property. Moreover, some of the judgments that are classified as other (because there was insufficient information in the case to classify them), might also have been related to commercial matters. Since in our globalised world much of the business (especially in small countries such as Israel) is transnational, there is a real need for more judicial cooperation on commercial matters. Israeli courts are probably well aware of that – even if they do not always straightforwardly address this consideration in their rulings.¹²³

The above can also explain why judgments are more likely to be enforced when the plaintiff is a corporation. The raw data indicated that when the respondent was a corporation the court was also more likely to enforce the judgment, but it did not reach statistical significance. Given that corporations usually have more resources to litigate abroad and fully present their cases before the judge, this is only to be expected. Moreover, companies conducting business abroad often sign agreements with international jurisdiction clauses – and by so doing agree in advance to the jurisdiction of a court that is foreign for at least one of the parties. Therefore, it is problematic for a corporation which agreed in advance to a certain jurisdiction to object to the enforcement of a judgment from this jurisdiction post-factum.

Moreover, family law judgments are less likely to be enforced when compared to contracts and commercial judgments. Given the nature of family law cases, obviously the contending parties are individuals and not corporations, and compared to corporations, individuals might find it much harder financially to litigate abroad. Moreover, if the couple have different nationalities, then one of them might need to litigate in a country (and perhaps in a language) that he or she is not proficient in. This can be seen as impairing the fairness of the process in certain cases. Also, as mentioned above, family law judgments are somewhat dependent on local culture and values.¹²⁴ Therefore, courts might be more hesitant to enforce a foreign judgment in these cases.

An interesting example for a family law case that may demonstrate the human complexity of those cases is SF v SF.¹²⁵ In this case a couple (the husband was an Israeli citizen and the wife a US citizen) married in Israel in a religious ceremony, and lived initially in Israel. A few years later, the couple moved to the US for the husband’s work, and after the husband had to return to Israel (since his work contract in the US had ended) the wife filed for divorce and child support in a US court. The US court ruled in favour of the wife granting her both divorce and financial rights. The husband, who was already in Israel was unable to pay for legal representation in the US, and the judgment was eventually given ex parte. After the wife asked for the judgment to be enforced in an Israeli court, the court refused to do so for several reasons. For instance, the court ruled that a civil divorce between two Israeli citizens married in Israel in a religious ceremony, is against Israeli public policy.¹²⁶ On the one hand, the Israeli court ruled that the financial difficulties in litigating abroad should not be seen as depriving the husband of his right to due process. However, on the other hand, the court ruled that there were substantial flaws in proving the foreign law, which could also have been interpreted as a way of trying to help the defendant (and in a different situation a court might have ignored those flaws).¹²⁷

Another interesting finding in this regard was that the three central districts in Israel were more likely to enforce a judgment compared to the more peripheral districts. This was held true even when the author controlled in a regression for the type of case. It is hard to tell exactly why the central districts are more likely to enforce foreign judgments. Perhaps these districts are more accustomed to hearing cases with international parties (especially corporations) and apply foreign law. In this dataset, slightly more than 80% of the cases came from the central districts. Therefore, these districts are also more used to hearing such cases, which might make the judges more comfortable with enforcing a foreign judgment. Even if a certain judge did not hear a case on this subject before, his or her colleague might have. Also, perhaps judges appointed to the central districts are more likely to have worked as lawyers in big law firms that have much more international connections. However, these are mere speculations, and more research is needed in this regard. Interestingly, there was no difference between the enforcement rate by the Supreme Court and other courts. This might be partially attributed to the fact that the Israeli Supreme court is allowed to hear only appeal cases, and therefore perhaps receives the more complicated cases.

The vested rights theory in general views a foreign judgment as an obligation. Therefore, it is mainly concerned with whether the due process rights of the debtor have been observed by the foreign court. To operationalise this approach, this article examined both the general characteristics of the political and legal system of the country that issued the judgments, as well as different defences accepted by courts. To assess the legal and political regime of the foreign country, the article used the variables of judicial independence, human rights score, and polity score. However, these variables were not even close to statistical significance in any of the specifications. This might be partially attributed to the fact that almost all the countries in the dataset are Western European or North American, and more than half of the foreign judgments came from the US (see Appendix). Given that the judicial independence, human rights, and polity scores is rather high in all these countries, there might not be sufficient variance in those variables – and therefore, it is hard to reach statistical significance.

Another possible way to evaluate the vested rights theory is to look at the descriptive statistics and analyse the reasons for non-enforcement of a foreign judgment. On the one hand, the fraud defence has not been accepted in any case in the dataset. However, this could have been the case because such a claim was never substantiated. As mentioned above, most of the countries in the dataset are countries with a reliable judicial system, so it is harder to prove fraud in such a case. On the other hand, in a few cases the court did accept the defence that the defendant did not have a fair chance to present his case before the foreign court (section 6(a)(2) of the Enforcement Law).

The Israeli courts also accepted defences that deal with lack of jurisdiction, such as the defence that the judgment was given contrary to the Israeli laws of indirect jurisdiction in private international law (indirect jurisdiction, section 6(a)(3) of the Enforcement Law). Also, in some cases the court accepted the defence that the foreign judgment was given in contrast to the jurisdiction laws of the foreign country (direct jurisdiction, section 3(1) of the Enforcement Law). Both of these provisions related to jurisdiction are meant to protect the due process rights of the defendant, even though the indirect jurisdiction might have other purposes as well, like protecting the sovereignty of the enforcing country.

From the abovementioned, one can conclude that there is no evidence that the general characteristics of the judicial system in the foreign country matter very much to the decision of an Israeli court to enforce a foreign judgment. On the other hand, it seems that in some cases Israeli courts are indeed willing to accept defences ensuring due process in the specific cases before them, and therefore making sure that the obligation created by the foreign court is just.

Regarding the comity theory, the data suggests that cases from countries with whom Israel has a high volume of trade are somewhat more likely to be enforced. However, it was also not statistically significant in all of the specifications, and even when it was significant – the coefficient was very small. On the other hand, the statistical significance remained even when it was controlled in a regression for whether the case was from the US.

In the Reitman case,¹²⁸ the Israeli Supreme Court expressly mentioned the importance of the commercial-trade ties, and the need to encourage future trade relations between Israel and China as a consideration to enforce the Chinese judgment. In that case the court chose to interpret leniently the reciprocity requirement (section 4) as a requirement for a mere “potential of enforcement.” This resulted in a decision to enforce foreign judgments even in cases where it is very probable that the courts of the foreign country would not enforce an Israeli judgment. In the case of Reitman obviously the court had enough grounds to deny the request for enforcement if it wished to do so for lack of reciprocity, but instead preferred trade policy reasons and interpreted the reciprocity requirement in a very lenient way.

The same was true regarding the older Double K case in which the request was for enforcement of a Russian judgment.¹²⁹ Interestingly, in the Double K case the Israeli Supreme Court also pointed out that in enforcement of foreign judgments the courts should give greater place to judicial efficiency considerations and to the rights of the parties to the process than to the reciprocity requirement.¹³⁰

However, a later request for enforcement of a judgment from Georgia (a smaller country with a smaller volume of trade with Israel) has been denied by an Israeli court.¹³¹ The case was somewhat similar to the Reitman and the Double K case, as in both cases the official legislation stated that enforcing of a foreign judgment is possible only when there is a treaty on the subject, but courts sometimes tended to enforce Israeli judgments. One might argue that a possible way to differentiate the Georgian case from the Reitman and Double K cases, is that in the Georgian case there was a decision of the Georgian Supreme Court that judgments from Israel should not be enforced (because there was no relevant treaty between the two countries), and the only Israeli judgments being enforced in practice have been family law judgments. On the other hand, in the case of Russia and China there was no clear decision of a high court on enforcement of Israeli judgments. However, it can also be argued that the differences between the judicial policies of those countries was relatively minor, and rather the court might have found it less important to support trade connections with a country like Georgia with which the volume of trade is much lower.

It is true that judges are probably not always directly aware of the amount of trade between the countries, but they are probably aware that Israel might have a big volume of trade with countries like the US and China. Therefore, it might be the case that trade relations might play a part, even if not always a major one, in the decision to enforce a foreign judgment (especially on a commercial subject matter).

It should be noted that Israel’s five largest trade partners for export of goods (in declining order) are US, China, United Kingdom, the Netherlands and Germany. Also, the largest trade partners for export of services (in declining order) are US, United Kingdom, Ireland, Cyprus and France.¹³² All of these countries (other than China) are democracies and therefore the Israeli courts might have more trust regarding the due process in their courts, regardless of the trade relations with those countries. On the other hand, the statistical significance of the trade variable remained also in specifications which controlled for judicial independence and polity score – but not the human rights score of the country.

The article did not find any evidence that international relations political proximity mattered to the enforcement decision. To test this hypothesis, the article used the mutual United Nations vote variable. This variable is perhaps somewhat more problematic in the Israeli context, because of the United Nations involvement in the Israeli-Palestinian conflict. However, the author found it hard to find another good proxy for political closeness in the case of Israel, because (for instance) Israel is not party to any regional treaty and is not a party to NATO.

Also, it did not seem to matter at all whether Israel was party to a bilateral treaty of recognition and enforcement of foreign judgments with one of the four countries with which it was signed. According to Israeli Supreme Court jurisprudence, such a treaty might be of importance when one wants to recognise a foreign judgment,¹³³ but it is less relevant for enforcement (even though it makes the proof of reciprocity very easy). This might show that in the Israeli context, signing a bilateral treaty might not necessarily indicate increased chances of enforcement, but rather a stamp of validation for already existing international relations with countries.

Finally, regarding the provisions of the Enforcement Law encompassing the comity theory (besides the reciprocity requirement discussed above), it is interesting to notice that while lack of indirect jurisdiction was one of the most common grounds for refusal to enforce a foreign judgment (almost 11% of the cases), Israeli courts never refused to enforce a judgment for sovereignty or national security reasons.

Therefore, it seems that comity matters most when it concerns the trade aspects of Israel’s foreign relations, even if it is not always stated explicitly by the court. It can be seen both from the data, and at times even from the narrative of the Israeli Supreme Court itself. On the other hand, it seems that general political international relations considerations are of less importance.

H. Conclusion

The conclusions above shed some optimistic light on the role that enforcement of foreign judgments can play in promoting international trade, echoing comity considerations. It seems that Israeli courts display openness and willingness to enforce foreign judgments in commercial cases. This is probably driven by a certain understanding of the need to develop and promote international trade and international cooperation in general. The willingness to enforce commercial judgments will probably increase when the Hague Judgments Convention 2019 comes into force, at least in the case of judgments coming from states which are parties to the Convention.

Whereas there seems to be no evidence that general characteristics of the foreign legal system matter for enforcement, in certain cases defences that concern the due process of the procedures in the specific case are accepted. Thus, also supporting the vested rights theory to a certain extent. Also, several internal characteristics of the Israeli judicial system play an important role in enforcement – mainly that courts belonging to the central districts of Israel are more likely to enforce a foreign judgment.

As mentioned above, using Israel as a case study in comparative law comes with certain limitations. However, the same can be said about any other country. Therefore, perhaps it should be seen as one of the first empirical studies in this field, that can, together with other past and future studies, help us to achieve a better understanding of the international and national aspects of enforcement of foreign judgments, and promote much needed informed cooperation and decisions on the subject.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 See infra Part B.

2 The text of the Convention, as adopted at the 22nd Diplomatic Session of the Hague Conference on Private International Law, is available on the Hague Conference website at https://www.hcch.net/en/instruments/conventions/full-text/?cid=137 accessed on 30 June 2022 [hereinafter the Convention]

3 See the status table available at https://www.hcch.net/en/instruments/conventions/status-table/?cid=137.

4 G Shaffer and T Ginsburg, “The Empirical Turn in International Legal Scholarship” (2012)106 American Journal of International Law 1, 5–11.

5 CA Whytock, “Transnational Litigation in U.S. Courts: A Theoretical and Empirical Reassessment” (2022) 19 Journal of Empirical Legal Studies 4.

6 T Eisenberg and G Miller, “Ex Ante Choice of Law and Forum: An Empirical Analysis of Corporate Merger Agreements” (2006) 59 Vanderbilt Law Review 1975; See also T Eisenberg and G Miller, “The Flight From Arbitration: An Empirical Study of Ex Ante Arbitration Clauses in the Contracts of Publicly Held Companies” (2007) 56 DePaul Law Review 335.

7 S Shakargy, “Whose Law Is It Anyway? The Case of Matrimonial Property in Israel” (2022) 23 Theoretical Inquiries in Law 165.

8 KF Tsang, “Enforcement of Foreign Commercial Judgments in China” (2018) 14 Journal of Private International Law 262.

9 A Yekini, The Hague Judgments Convention and Commonwealth Model Law (Hart Publishing, 2021).

10 As will be explained later, the article focuses only on enforcement and not on recognition of foreign judgments.

11 A hand-coded dataset is a dataset which was coded manually.

12 R Michaels, “Recognition and Enforcement of Foreign Judgments”, in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP, 2009), 1, 2.

13 D Stewart, “The Hague Conference Adopts a New convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters” (2019) 113 American Journal of International Law 772, 772.

14 T Einhorn, Private International Law in Israel (Wolters Kluwer, 2009) 329. As Einhorn writes: “[o]nly certain judgments can be enforced, that is, judgments which order one person (the judgment debtor) to perform an obligation towards another (the judgment creditor), or judgments which order the passing of title to property from one person to another.”

15 supra n 12, 1.

16 P Torremans, “Recognition and Enforcement of Foreign Judgments—The Traditional Rules”, in P Torremans et al. (eds) Cheshire, North & Fawcett: Private International Law (Oxford University Press, 15th edn, 2017) 525, 527–56; CW Fassberg, Private International Law (Nevo, 2013) 251–2 [Hebrew]; See generally RC Casad, “Issue Preclusion and Foreign Country Judgments: Whose Law?” (1984) 70 Iowa Law Review 53; A Mehren and D Trautman, “Recognition of Foreign Adjudications: A Survey and a Suggested Approach” (1968) 81 Harvard Law Review 1601, 1674.

17 SP Baumgartner, “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad” (2013) 45 NYU Journal of International Law and Policy 965, 969.

18 Fassberg, supra n 16, 254.

19 M Rosen, “Should Un-American Foreign Judgments Be Enforced” (2004) 88 Minnesota Law Review 783, 803.

20 Y Rotem, “The Problem of Selective or Sporadic Recognition: A New Economic Rationale for the Law of Foreign Country Judgments” (2010) 10 Chicago Journal of International Law 505.

21 H Maude, “Codifying Comity: The Case for U.S. Ratification of the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters” (2020) 38 Wisconsin International Law Journal 108, 109; A Chong, “Moving Towards Harmonisation in the Recognition and Enforcement of Foreign Judgment Rules in Asia” (2020) 16 Journal of Private International Law 31, 31; A Pribetic, “Thinking Globally, Acting Locally: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada” (2006) Annual Review of Civil Litigation 141; V Singal, “Preserving Power Without Sacrificing Justice: Creating an Effective Reciprocity Regime for the Recognition and Enforcement of Foreign Judgments” (2007) 59 Hastings Law Journal 943, 945.

22 Rosen, supra n 19, 803.

23 Singal, supra n 21, 945; Chong, supra n 21. 33.

24 M Whincop, “The Recognition Scene: Game Theoretic Issues in the Recognition of Foreign Judgments” (1999) 23 Melbourne Journal of International Law 416, 421–22.

25 F Juenger, “The Recognition of Money Judgments in Civil and Commercial Matters” (1988) 36 American Journal of Comparative Law 1, 4.

26 Rotem, supra n 20, 510.

27 Fassberg, supra n 16, 254; Juenger, supra n 25, 4.

28 Fassberg, supra n 16, 254; Baumgartner, supra n 17, 966-7.

29 Juenger, supra n 25, 4.

30 Michaels, supra n 12, 1.

31 Ibid, 2-3; Torremans, supra n 16, 525-7; Fassberg, supra n 16, 254-5; P Schlosser, “Jurisdiction and International Judicial and Administrative Cooperation” (2000) 284 Hague Collected Courses 9, 33; Haggai Carmon, Foreign Judgments in Israel – Recognition and Enforcement (Springer, 2013) ix-x.

32 W Dodge, “International Comity in American Law” (2015) 115 Columbia Law Review 2071; JR Paul, “Comity in International Law” (1991) 32 Harvard International Law Journal 1; SL Stevens, “Commanding International Judicial Respect: Reciprocity and the Recognition and Enforcement of Foreign Judgments” (2002) 26 Hastings International & Comparative Law Review 115, 119–21.

33 Juenger, supra n 25, 7.

34 J Edelman and M Salinger, “Comity in Private International Law and Fundamental Principles of Justice” in A Dickinson and E Peel (eds), A Conflict of Laws Companion (Oxford University Press, 2021) 325.

35 For a discussion of the different interpretations of comity, see JR Paul, “The Transformation of International Comity” (2008) 71 Law and Contemporary Problems 19; T Dornis, “Comity”, in J Basedow et al. (ed), Encyclopedia of Private International Law (Edward Elgar Publishing, 2017) 381–91.

36 Michaels, supra n 12, 2-3; Paul, supra n 32, 4; Fassberg, supra n 16, 255-6; I Canor, “No More Respect of Sovereignty – Reciprocity and the Rise of Public Considerations from the Public International Law to the Private International Law” (2019) 41 Iyunei Mishpat 532–4 (2019) [Hebrew].

37 Juenger, supra n 25, 10.

38 Michaels, supra n 12, 2.

39 CW Fassberg, “Rule and Reason in the Common Law of Foreign Judgments” (1999) 12 Canadian Journal of Law and Jurisprudence 193, 202; Juenger, supra n 25, 10; Whincop, supra n 24, 424.

40 Fassberg, supra n 16, 256.

41 Michaels, supra n 12, 3.

42 Case 99-3195 Society of Lloyd's v Ashenden [2000] 233 F 3d 473, 480-81 (7th Cir.) (discussed in the specific context of the Illinois Uniform Foreign Money-Judgments Recognition Act, 735 ILCS 5/12-618 to 626); See generally MD Carodine, “Political Judging: When Due Process Goes International” (2007) 48 William and Mary Law Review 1159.

43 Maude, supra n 21.

44 A Dickinson, “Keeping Up Appearances: The Development of Adjudicatory Jurisdiction in the English Courts” (2016) 86 British Yearbook of International Law 6; A Briggs, “Recognition of Foreign Judgments: A Matter of Obligation” (2013) 129 Law Quarterly Review 87; A Dickinson, “Schibsby v Westenholz and the Recognition and Enforcement of Judgments in England” (2018) 134 Law Quarterly Review 426.

45 Fassberg, supra n 16, 256; Schibsby v Westenholz [1875] LR 6 QB 155.

46 Hilton v. Guyot [1895] 159 US 113.

47 Fassberg, supra n 16, 265; Schlosser, supra n 31.

48 Fassberg, supra n 16, 257.

49 Chong, supra n 21, 32; Baumgartner, supra n 17, 971; WG Southard, “The Reciprocity Rule and Enforcement of Foreign Judgments” (1977) 16 Columbia Journal of Transnational Law 327, 327; Y Zeynalova, “The Law on Recognition and Enforcement of Foreign Judgments: Is It Broken and How Do We Fix It” (2013) 31 Berkley Journal of International Law 150, 165–6.

50 Juenger, supra n 25, 11.

51 See above text accompanying notes 35–37 and 41–43.

52 See, J Rachlinski and A Wistrich, “Judging the Judiciary by the Numbers: Empirical Research on Judges” (2017) 13 Annual Review of Law and Social Science 203.

53 KM Clermont and T Eisenberg, “Anti-Plaintiff Bias in the Federal Appellate Courts” (2000) 84 Judicature 128; T Eisenberg and E Hill “Arbitration and Litigation of Employment Claims: An Empirical Comparison” (2004) 58 Dispute Resolution Journal 44; SL Haynie and KL Sill “Experienced Advocates and Litigation Outcomes: Repeat Players in the South African Supreme Court” (2007) 60 Political Research Quarterly 443.

54 S Farhang and G Wawro, “Institutional Dynamics on the US Court of Appeals: Minority Representation Under Panel Decision Making” (2004) 20 Journal of Law, Economics and Organization 299; JL Peresie, “Female Judges Matter: Gender and Collegial Decision Making in the Federal Appellate Courts” (2005) 114 Yale Law Journal 1759.

55 Peresie, supra, n 54.

56 Foreign Judgments Enforcement Law, 5718-1958, LSI 68 (1958) [hereinafter Enforcement Law]; See also Fassberg, supra n 16, 502–9; CivA 970/93 Attorney General v Agam [1995] 49(1) PD 561 (Isr.) (establishing the precedent that there is a common law route only for enforcement of foreign judgments but not for recognition of foreign judgments).

57 Einhorn, supra n 14, 332–3.

58 Enforcement Law, s 11(b), supra n 56.

59 Based on the author’s research for the current article.

60 Enforcement Law, supra n 56.

61 Ibid, s 3(1).

62 Ibid, s 3(2).

63 Ibid, s 3(3). This

64 Einhorn, supra n 14, 338. Einhorn suggests that one of the rare cases in which enforcement might be refused on these grounds is a case in which the foreign court ordered an artist to create a certain painting (which is prohibited under Israeli Contract Law).

65 Ibid, s 3(4).

66 Ibid, s 3(3); See CivA 4949/03 Bulos Gad LTD v Globe Master Management LTD [2005] PD 59(5) 616; Fassberg, supra n 16, 495.

67 Enforcement Law, supra n 56, s 4; See Canor, supra, n 36.

68 CivA 3081/12 Double K Gas Products LTD v Gazprom Transgaz Uchta [2014] Nevo Legal Database.

69 Enforcement Law, supra n 55, s 6(a)(1).

70 See Fassberg, supra n 16, 496; CivA 3441/01 John Doe v Jane Doe [2004] Nevo Legal Database.

71 Enforcement Law, supra n 56, s 6(a)(2).

72 See CivA 29/76 Shunderman v Krakowski [1976] PD 30(3) 423; CivA 802/89 Indorexis v Indorexis [1990] PD 46(2) 366.

73 CivA 541/77 Rozenshine v Spatus [1978] PD 32(2) 71.

74 Enforcement Law, supra n 56, s 6(a)(4).

75 Ibid, s 6(a)(5).

76 Hague Conference on Private International Law, Status table, supra, n 3.

77 Enforcement Convention, supra, n 2, Art 2(1)(b) and 2(1)(c).

78 Ibid, Art 2(1)(k).

79 Ibid, Art 2(1)(l).

80 Ibid, Art 2(1)(m).

81 Ibid, Art 4(3).

82 Ibid, Art 5(1)(b).

83 See R Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart, 2013) 133, n 198.

84 Fassberg, supra n 16, 526.

85 RN Barger, “The High-Tech Sector”, in A Ben-Bassat et al. (eds), The Israeli Economy 1995-2017 (Cambridge University Press, 2021) 527.

86 E Rivlin, “Israel as a Mixed Jurisdiction” (2012) 57 McGill Law Review 781.

87 Y Elbashan, “People of Mizrachi Origin in Israeli Law Faculties – A Journey” (2020-2021) 23 Mishpat U Mimshal 1 [Hebrew].

88 Double K v Transgaz, supra n 68, para 12.

89 CivC (TA DC) 48946-11-12 Reitman v Jiangsu Overseas Group Co Ltd [2015] Nevo Legal Database (enforcing a judgment from China), para 129.

90 Center for Systematic Peace, Polity5 Annual Time-Series, http://www.systemicpeace.org/inscrdata.html accessed on July 1 2022.

91 See in the context of the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, FamC (TA) 74430/99 PvP [1999] and Schuz, supra n 83 at 13 and 361.

92 [dataset]* Cingranelli et al., 2013, CIRI Human Rights Data Project, https://drive.google.com/file/d/0BxDpF6GQ-6fbY25CYVRIOTJ2MHM/edit accessed on 3 July 2022.

93 [dataset]* C Farris, 2014, Latent Human Rights Protection Scores Version 2 http://thedata.harvard.edu/dvn/dv/HumanRightsScores/faces/study/StudyPage.xhtml?globalId=doi:10.7910/DVN/24872 accessed on 3 July 2022.

94 [dataset]* E Voeten et al., 2009, United Nations General Assembly Voting Data, Harvard Dataverse https://doi.org/10.7910/DVN/LEJUQZ accessed on 3 July 2022.

95 [dataset]* K Barbieri et al., Correlates of War Project Trade Data Set – Trade, Version 4.0., 2012 http://correlatesofwar.org; For trade data for the years 2019 and 2020 the article used: Israeli Bureau of Statistics, Trade 2017–2020 accessed on 3 July 2022. https://www.cbs.gov.il/he/Pages/%D7%9E%D7%97%D7%95%D7%9C%D7%9C-%D7%A1%D7%97%D7%A8-%D7%97%D7%95%D7%A5.aspx. accessed on 3 July 2022.

96 JA Segal, “Judicial Behavior”, in RE Goodin (ed), The Oxford Handbook of Political Science (Oxford University Press, 2009) 275, 280–1.

97 S Farhang and G Wawro, “Institutional dynamics on the U.S. Court of Appeals” (2004) 20 Journal of Law, Economics and Organization 299; CR Sunstein et al, “Ideological Voting of Federal Courts of Appeals: a Preliminary Investigation” (2004) 90 Virginia Law Review 301; RL Revesz, “Environmental Regulation, Ideology, and the D.C. Circuit” (1997) 83 Virginia Law Review 1717.

98 The data includes two cases with judgments issued by the Palestinian Authority. Given that there is very limited data on the Palestinian Authority (for instance, no polity or human rights scores), in most of the statistical analyses these cases are excluded for lack of data.

99 Nevo Database, https://www.nevo.co.il/ accessed on 3 July 2022.

100 Shakargy, supra n 7, 170-1.

101 A chi-2 test is a hypothesis test used to determine whether there is a relationship between two categorical variables.

102 LFamA (DC NZ) 6–10 John Doe v Jane Doe [2011] Nevo Legal Database; FamC (NZ) 7776-04-14 SSBH v ABH [2017] Nevo Legal Database; CivC (DC Jer) 6403–09 Levin v Levin [2011] Nevo Legal Database; FamC (Jer) 19021/00 SF v SF [2004] Nevo Legal Database.

103 Levin v Levin, supra n 102.

104 SSBH v ABH, supra n 102, para 23

105 CivC (MC TA) 6900-06-17 Primze 2009 LTD v Ashtrum International LTD [2020] Nevo Legal Database.

106 CivC (DC TA) 1344/94 Shifman v Shifman [1995] Nevo Legal Database.

107 CivC (DC Jer) 492/98 Lipsky v Schwab [1999] Nevo Legal Database.

108 Double K v Transgaz, supra n 68 (enforcing a judgment from Russia); CivA 7884/15 Reitman v Jiangsu Overseas Group Co Ltd [2017] Nevo Legal Database (enforcing a judgment from China).

109 Civ (Krayot) 46824-02-15 Wolinski v KBC Verzekeringe NV[2018] Nevo Legal Database.

110 Civ (Haifa) 28138-05-16 Isadora v Ben Ezra [2017] Nevo Legal Database.

111 FamC (TA)16136-07-12 John Doe v Jane Doe [2013] Nevo Legal Database.

112 Civ (JR) 786–08 Wasserstein v Friedriechshain [2010] Nevo Legal Database.

113 SF v SF, supra n 102 (trial court); LFamA (JR DC) 637/04 Sf v Sf [2006] Nevo Legal Database (appeal).

114 A t-test is a statistical test that compares the means of two samples.

115 Due to the relatively low number of cases the author chose to assume that there is no connection between the decisions in the first instance in which the case was tried, and its appeal. However, one might argue that in such a case the appeal judges might have a status quo bias. A logit test is used to model dichotomous outcome variables – in our case, whether the judgment was enforced or not.

116 See R Wacks, Philosophy of Law: A Very Short Introduction (Oxford University Press, 2nd edn, 2006) 92.

117 See TG Weaver and T George, “The Role of Personal Attributes and Social Backgrounds on Judging”, in L Epstein and S Lindquist (eds), The Oxford Handbook of U.S. Judicial Behavior (Oxford University Press, 2016) 15.

118 See John Doe v Jane Doe, supra n 111.

119 Double K v Transgaz, supra n 68.

120 See M Bertrand and S Mullainathan, “Do People Mean What They Say? Implications for Subjective Survey Data” (2001) 91 American Economic Review 67.

121 See Shaffer and Ginsburg, supra n 4, 9; R Higgins, “Remarks” (2005) 99 American Society of International Law Proceedings 135.

122 See L Epstein and AD Martin, “Quantitative Approaches to Empirical Legal Research”, in P Cane and HM Kritzer (eds), Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010).

123 Reitman v Jiangsu, supra n 108, para 43; Double K v Transgaz, supra n 68, para 55.

124 It should also be noted that perhaps for these reasons Israel is also currently not a Party to Hague Conventions on family law apart from the Child Abduction and Intercountry Adoption Conventions.

125 SF v SF, supra n 102 (trial court).

126 Ibid, para 33.

127 Ibid, paras 12-32.

128 See Reitman v Jiangsu, supra n 108, para 43; H Peled, “The Status of the Reciprocity Requirement Following CivA 7884/15 Reitman v. Jiangsu Overseas Group Co Ltd” (2018) 12 Haarat Din 22.

129 Double K v Gazprom, supra n 68.

130 Ibid, paras 43 and 55.

131 Primze v Ashtrum, supra n 105.

132 Israeli Ministry of Economy and Industry, The Israeli Foreign Trade – An Overview https://israel-trade.net/wp-content/uploads/2021/05/%D7%9E%D7%A6%D7%92%D7%AA-%D7%A4%D7%95%D7%A8%D7%95%D7%9D-%D7%90%D7%99%D7%A8%D7%95%D7%A4%D7%94-04.2021.pdf accessed on 3 July 2022.

133 Without a treaty, generally, Israel recognises foreign judgments only incidentally; See supra Part B.

Appendix

Table

Name of Country	Number of judgments
Belgium	3
Canada	3
China	2
Czechia	2
France	5
Georgia	1
Germany	6
Hong Kong	1
Hungary	1
Italy	3
Palestinian Authority	2
Poland	1
Russian Federation	6
Spain	1
Switzerland	5
Turkey	1
Ukraine	1
United Kingdom	9
United States of America	60
Uruguay	1
	Total = 114