In Arlecchino LP v PT Platinum Public Limited,(1) the Tel Aviv District Court dismissed a summary procedure claim on the basis of forum non conveniens (ie, discretionary court power to dismiss a case where a more appropriate court or forum is available). The court ruled that the jurisdictional clauses found in the chain of agreements between the parties clearly pointed to alternative fora – either Austrian courts or International Chamber of Commerce (ICC) arbitration in Vienna. Therefore, in the absence of any indication that the parties intended to grant jurisdiction to the Israeli courts in any of these agreements, the court ruled that the Israeli courts were not the proper legal fora. As no application had been made to stay proceedings under the New York Convention, the court did not consider this alternative.
In 2015 Arlecchino LP, a British-based company, purchased the rights to a $3 million loan provided by Casey Corporation Ltd to Israel 18 BV, a Netherlands-based company.
The original loan agreement contained an arbitration clause referring all conflicts arising from the agreement to arbitration in Vienna. Performance of the original loan agreement was guaranteed by two guarantors.
Several months after purchasing the debt, Arlecchino entered into a guarantee agreement with PT Platinum PL, a Cyprus-based company, whereby Platinum guaranteed Israel 18's debt to Arlecchino. The guarantee agreement included a different arbitration clause, which referred future conflicts to arbitration in London. However, the guarantee agreement also granted Arlecchino the right to initiate legal proceedings against the guarantor in any jurisdiction that it deemed appropriate.
The parties thereafter entered into another agreement, whereby a portion of Israel 18's debt was assigned to Platinum. This assignment agreement contained yet another arbitration clause, this one requiring settlement of disputes by ICC rules, although no forum was indicated. This agreement also provided that any party could appeal to any judicial authority having jurisdiction for interim relief in order to protect its rights.
Simultaneously, with the assignment of part of the loan from Israel 18 to Platinum, a second guarantee agreement was signed between Arlecchino and a majority shareholder in Israel 18, granting jurisdiction to the Vienna courts on matters relating to the guarantee.
A third guarantee agreement was later signed between Israel 18, Arlecchino and Meinl Bank, a Vienna-based bank, in which Israel 18 agreed to guarantee all of Platinum's debts to Arlecchino. In this agreement, the parties also agreed on Viennese court jurisdiction.
Arlecchino claimed that the various borrowers and guarantors had failed to repay the loan and claimed for full repayment of the loan in the Israeli district court.
Arlecchino based its claim on:
- the jurisdiction of the Tel Aviv courts on the Israeli domicile of several of the defendants; and
- the Israel Securities Authority's ongoing investigation into these defendants, including one of the guarantors, who was under order preventing him from leaving Israel for at least 180 days.
Arlecchino claimed that judicial efficiency and justice required the case be heard by the Israeli courts. Given that none of the agreements expressly stipulated that a party could pursue its claims exclusively in any particular jurisdiction or before a particular tribunal, it argued that it was free to demand payment of its debt in the Israeli courts.
Conversely, the respondents, on the other hand, claimed that the Israeli courts lacked jurisdiction to hear any of the claims. They agreed that the disputes between Arlecchino and Israel 18 were subject to ICC arbitration and the foreign jurisdiction clause of the agreements between Arlecchino and at least one of the guarantors made their disputes subject to the jurisdiction of the Austrian courts. Each of the agreements stipulated a forum in which claims could be heard and none of these was Israel. Therefore, the Israeli courts had no basis for jurisdiction over any of the claims.
The court accepted the respondents' request to dismiss Arlecchino's claims, stating that it could not find a proper basis for the Israeli courts' jurisdiction.
By the court's calculation, there were six contractual relationships, each with its own agreement on jurisdiction:
- the original Israel 18 loan agreement, including guarantees of certain defendants – arbitration in Vienna;
- the assignment of the loan from the original lender to Arlecchino – ICC arbitration, according to English or Belize law;
- the guarantee agreement between Arlecchino and Platinum – ICC arbitration in London;
- the assignment of Israel 18's debt to Platinum – ICC arbitration according to English or Cypriot law;
- the guarantee agreement between Arlecchino and another defendant – Austrian jurisdiction and law; and
- the guarantee agreement between Israel 18, Meinl Bank and Arlecchino – Austrian jurisdiction.
None of these agreements explicitly granted jurisdiction to the Israeli courts. The court thus questioned the very filing of claims with Israeli courts in accordance with Israeli law, given the lack of a single reference to Israel as a forum for settling disputes in any of the relevant agreements.
The court held that Arlecchino had other fora open to it, whether in ICC arbitration in London or Vienna or in the Viennese courts.
The court rejected Arlecchino's claim that since none of the jurisdictional clauses were exclusive, it was not restricted to any of the fora designated in the six agreements. On the basis of Israeli precedent, the court determined that a jurisdictional clause did not have to stipulate exclusivity in order for the court to find that the parties' intention was to fix a single exclusive jurisdiction. Courts are free to use all interpretive tools at their disposal to determine whether the parties had intended to fix a single forum in which to bring their claims.
After examining the six agreements, the court found that the parties' intentions regarding the location of the future settlement of disputes were never to grant jurisdiction to the Israeli courts, but rather to the ICC arbitral tribunals or Austrian courts. The court stated that given the extensive references in the agreements to Austrian law and jurisdiction and the involvement of Austrian banks, Austria could be identified as the place to which the contractual relationship has the most substantial connection and the parties' intention was to have their disputes settled in Austria. Further, in terms of judicial efficiency, a central element in forum determination in Israel, the court found that questions of Austrian law were better served in Austria. Thus, while the court did not make any determination as to whether Arlecchino was to make its claim in the Austrian courts or ICC arbitration, it denied jurisdiction to the Israeli courts.
Given that three of the six agreements under which Arlecchino claimed its debt contained ICC arbitration clauses, the Israeli court certainly had well-established grounds to stay proceedings until arbitral proceedings were concluded. However, this was not the court's decision, apparently because this was not the relief requested of it. The defendants asked the court to determine that it lacked jurisdiction based on forum non conveniens and the court decided the case on these grounds.
However, certain agreements relied upon by Arlecchino contained an express provision allowing the lender to claim its debt in any court having jurisdiction that it deemed appropriate. The fact that these claims were also dismissed on grounds of forum non conveniens should serve as a warning to lenders. Lenders in the international markets routinely include provisions reserving their right to press their claims in any jurisdiction that they deem appropriate. A reasonable reading of such a clause should have established jurisdiction for at least some of Arlecchino's claims in the Israeli courts. Although the decision of the district court does not set precedent, the fact that Arlecchino was unable to establish jurisdiction should be a matter of concern to any lender that may wish to pursue its claims in the Israeli courts. It suggests that where a party wishes to reserve the right to claim in an Israeli court notwithstanding a foreign jurisdiction clause, express language should be used to convey that the foreign jurisdiction is not exclusive.
In any event, since the court was not asked to exercise its powers under the New York Convention to stay proceedings in those contracts containing an arbitration clause, the decision should not be assumed to have any relevance in such cases.
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For further information on this topic please contact Zvi Nixon or Lauren Sobel at E Landau Law Office by telephone (+972 2 561 8845) or email ([email protected] or [email protected]). The E Landau website can be accessed at www.elandau.co.il.