Within the framework of arbitration in the many courts spread across the country, countless discussions are conducted to resolve disputes between opposing parties. However, if a party does not comply with the arbitration award - or does not comply at all - it is necessary to enforce the arbitration award within the framework of state law.
We will attempt - in a short series of articles - to shed light on several aspects of arbitration in civil proceedings, given the need, at times, to enforce the arbitration ruling within the framework of the court and the execution, under the law of the state in civil proceedings.
In this context, we will attempt to highlight a point that few are aware of - including judges, parties' attorneys, and litigants alike.
Want more news, videos and stories? Join the Haredim 10 WhatsApp channel >>
Over 15 years ago, a yeshiva that had won an arbitration case against another yeshiva approached me to evict it from a building that was being leased to it by the winning yeshiva, under a protected tenancy. What is known as a "protected tenant.".
The yeshiva - the one that lost - refused to vacate the leased property, and the winner sought to enforce the arbitration award and remove it from the leased property.
As soon as they contacted me, I understood that I was facing a legal problem - which I will detail later - but I believed that under the circumstances, this problem would not exist.
Just wait for the Rosh Yeshiva.
I applied to the District Court with a request to confirm an arbitration award and was granted a request to cancel it - the procedures and required course of action will be detailed in a separate article, on the grounds - as I stated above, which I was aware of as a problem, that Protected tenancies are not arbitrable at all. Therefore, the arbitration and the arbitration award are essentially null and void (a claim called in legal language - the "Void" claim).
Since I understood that the legal claim was correct, I sought advice from "sector experts" and indeed received excellent advice. Summon the yeshiva head to testify in court, as the one who gave the affidavit on behalf of the losing yeshiva, and ask him just one question:
"Do you deny the authority of a court, which hears within the framework of Torah law, to adjudicate a dispute concerning protected tenancies?"
""The more the answer is yes", "The experts explained to me, that's enough for us, and from now on we'll close the matter.".
Indeed, I did so, the Rosh Yeshiva took the witness stand, I asked him the above and the answer was:
""Yes! I disbelieve in the authority of a court of law to discuss the issue within the framework of Torah law." Which concerns protected tenancies".
I asked again, to make sure that this would be written accurately in the minutes:
""The rabbi wants to tell me that a certain conflict can and cannot be discussed within the framework of Torah law?!"
And the answer was:
"yes".
The arbitration award was canceled and I waited to hear from my colleagues what was done and how they resolved the matter.
In Mea Shearim, as in Mea Shearim
I was convinced that on the street of Mea Shearim - where the parties live - they would resolve the matter in the same way that similar matters are resolved in Mea Shearim.
After some time, it became clear to me that nothing was done and the losing yeshiva remained in the protected property, and despite the denial of the authority of the court hearing the issue according to Torah law, even though they tried, the winning yeshiva was unable to do anything.
Since then, I have encountered many cases in which a party rushed to court after losing an arbitration according to Torah law, in order to try to overturn the ruling on various grounds.
In this article, we will focus on those points/reasons that are not arbitrable within the framework of civil law, and therefore, to the extent that a party seeks to invalidate the arbitration result - in light of the claim that the issue is not arbitrable - it will succeed.
Of course, it is possible that parties will resort to arbitration and the arbitrators will discuss the issue, issue an arbitration award, and the parties will implement the award without the winner needing a civil enforcement proceeding under state law to enforce it, but that is not the purpose of this article.
What is arbitrable and what is not?
As a rule, the issues that are not arbitrable are those that are addressed in protective legislation. Since there is no obligation to follow a procedure within the framework of arbitration, as we will expand on in a future article, civil law has determined that a party's rights may be harmed by the absence of clear rules of the game/procedure, therefore these were excluded from the possibility of litigation within the framework of arbitration.
Also, and perhaps more importantly, since the arbitrator is not subject to substantive - civil - law, the Arbitration Law restricted the possibility of discussing, within the framework of arbitration, issues in which the legislator wishes the discussion to be in accordance with a given law.
Likewise, the outcome of the arbitration only applies to the parties to the dispute. Therefore, in this regard too, the legislator has chosen that certain issues that have an impact on third parties will not be discussed in the context of arbitration.
We will not list all the issues that are not arbitrable according to the Arbitration Law, but only those central ones that are discussed from time to time before the courts.
As mentioned in the story above - there is no protected tenancy (tenancy) that is subject to arbitration.
As for the labor relations system, the law and case law determine that the questions regarding the status of an employee - whether he is an employee/worker or not, as well as the question of his dismissal, are not subject to arbitration. However, once his status is determined - as an employee - the rights to which he is entitled can be discussed in arbitration, such as - his salary, vacation days, convalescence, sick days, the period of advance notice of his dismissal and the consequences thereof, etc.
That is, the quantification of his rights, after his status as an employee has been determined outside of arbitration, can be decided within arbitration. In addition to the above, the employee's social rights and their quantification are not arbitrable, as are wage withholding compensation.
And what about the question of a person's personal status?
A frequently discussed issue before the courts is issues related to land ownership. Since the decision on the issue of land ownership has an impact on third parties, some have argued that this issue is not arbitrable. However, the Supreme Court ruled that this issue is arbitrable, but a third party who was not a party to the arbitration can never challenge the outcome of the arbitration, unlike the parties to it.
The result of the arbitration - after it has been approved by the court (we will expand on this in a separate article) - is also enforceable before the registration authorities. For example, an approved arbitration award - is equivalent to a court judgment and will allow registration in the Land Registry and/or the Israel Land Administration, of the rights as determined in the arbitration.
As for issues regarding a person's personal status - the determination of whether a couple is married or divorced, whether a person is the child of a certain person or an unknown person, as well as an inheritance order and an order for the execution of a will, are not arbitrable. The amount of alimony - is arbitrable.
The dissolution of a company - in an official manner that will result in its formal closure in the Companies Registry - is also not arbitrable. In contrast to the prohibition on the dissolution of a company within the framework of arbitration, the dissolution of a partnership - even a registered one - is arbitrable and possible within the framework of arbitration.
In conclusion - I am not here to argue that it is not appropriate, or that there is no need, to litigate according to Torah law in issues such as this, since this is a minor point, but rather - when there is a need to enforce Torah law through state law, state law regarding arbitration does not allow for doing so in certain issues, since arbitration is essentially void.
It should be emphasized that the above is true whether the arbitration is conducted according to Torah law, according to the arbitrator's best understanding, or according to state law.
It is appropriate to be aware of this issue, to examine it carefully and to ask a rabbi whether it is possible to refer a specific issue to the civil court before resorting to arbitration, or alternatively, to raise the issue before the trial court, before signing the arbitration deed.
• The author of the article - Attorney Zvi (Tsiki) Wolfson - is the founder and managing partner of the law firm Wolfson Weinstein & Co., and he frequently appears in courts and arbitrations related to commercial business issues. www.ww-law.co.il
