Talia Einhorn

Reconciling Israeli Antidumping Law with WTO/GATT International Trade Law Rules

Dumping is defined, basically, as the sale of goods to an export market at a price below that charged for comparable goods in the exporters home market. The General Agreement on Tariffs and Trade (GATT) does not forbid such action, not even when injurious to the competing domestic industry. However, it has taken the view that dumping constitutes an unfair trade practice. Under GATT, Article VI Contracting Parties (or Members, as they are now termed in the GATT 1994 Agreements) are authorized, as an exception to other GATT obligations, to unilaterally impose antidumping (hereinafter: AD) duties to counteract the effects of dumping. The duties should create a level playing field in which producers all over the world will be able to compete fairly with each other. The principles sound simple and straightforward, yet their application is one of the most contentious topics in international trade law.The economic coherence of AD rules is controversial. In international trade, price discrimination between national markets is typically made possible when the exporter has a powerful position in the home market and re-exportation to that market is not feasible. In the domestic arena price discrimination is countered by the laws of competition and antitrust. International trade law offers states a very different remedy, that first and foremost protects the competing local industry, regardless of the procompetitive or anticompetitive effects of dumping on the market as a whole. Dumping may be very beneficial to consumers and industries that regularly use such goods. Unfortunately, states often tend to place industrial policy, intended to protect the profitability, turnover, productivity and other such interests of their domestic industry, above the interests of the public at large in rules that would safeguard free competition in their markets as such.The 1994 WTO Agreement, adopted by 124 countries and the EC on 14 April 1994, is the most elaborate attempt ever made at creating an economic order that would enhance international trade, by providing it with a rule-oriented atmosphere that should prevail in all Members. Israel ratified the WTO Agreements in January 1995. Since Israels implementing legislation should reflect its own interests, those will be first considered. Concurrent with ratification, the Ministry of Trade and Industry established an inter-ministerial committee to analyze and suggest revisions of Israeli international trade laws and regulations. The subcommittee for antidumping and subsidies made a report regarding changes needed in the law and its administration. The Ministry of Trade issued a report stating that a new draft law will be submitted in the near future. The new draft law prepared by the Ministry of Trade and Industry has not yet been submitted to the Knesset. However, according to that report, Israeli antidumping law is on the whole already compatible with the international obligations.Current Israeli law, scanty as it is in detail and scope, will therefore be analyzed for its consistency with the Code, from a substantive as well as a procedural perspective. This critical evaluation will include, with respect to selected issues, comparative analogies drawn mainly from the experience gained in the EC and the US, both notable users of AD duties. Solutions chosen in other jurisdictions may help broaden the scope of options open to Israeli law, provided however that due account be taken of the differences in interests. Finally, guidelines regarding law reform are suggested.

Israel: Proof of and Information About Foreign Law in Israel

The application of foreign law by a national court, for whatever reason, is a challenging endeavor. The court is required to decide legal issues as if it were a court of the foreign state. Yet, a national judge can neither be expected nor required to be familiar with the foreign legal system as he is with his own. If the application of foreign law is not to be invariably frustrated, then such application should only be conditioned upon the judge acquiring reasonable understanding of the solution which that foreign system might have for the problem at hand.

Interpretation and Application of the New York Convention in Israel

Israel has implemented most of the provisions of the New York Convention in its domestic legislation. However, some amendments of the Israeli Arbitration Law are still needed to make it more fully compatible with the Convention. While the Israeli courts attempt to faithfully adhere to the letter and spirit of the Convention, its application is still imperfect at both the stage of enforcing arbitration agreements and of recognizing or enforcing arbitral awards. This is partly due to the fact that there is not enough training of the Israeli legal profession on matters having a foreign element. In addition, practitioners and judges need to consider more closely the motivations underlying the Convention before rendering decisions that could undermine its efficacy in the long run.

Coordinating Matrimonial Property Regimes Across National Borders – Israeli and Comparative Perspectives

Recent decades have witnessed a remarkable increase in the mobility of persons across national borders, as well as an increase in the number of couples formed by nationals of different countries, who may live in a country of which neither is national and acquire property in more than one country. Such couples may face uncertainty regarding the legal rules governing the spouses’ rights in the matrimonial property. The matrimonial property regime may also change following a change of domicile. The problems encountered are due to the fact that states apply different substantive legal rules, as well as different conflict rules, to such property relations. This study, dedicated to Grand Justice Professor Herbert Han-Pao Ma, a great teacher and dear friend, first examines the various matrimonial property regimes provided by law in some European civil law countries, as well as the legal rules governing matrimonial property in England and in Israel (part 2); it then considers, with respect to both the conflict rules designating the law governing matrimonial property and the substantive rules that would be applied in each jurisdiction, respectively, a Swiss-Israeli case (part 3), a Dutch-Israeli case (part 4), and an English-Israeli case (part 5), followed by conclusions (part 6).

Disgorgement of Profits in Israeli Law

The study of disgorgement of profits in Israeli law demonstrates the availability of this remedy in nearly all legal areas. The extensive development of this remedy can only be explained in view of Israeli private law being the product of a mixed legal system with special characteristics. Accordingly, this study offers an overview of the special characteristics of Israeli private law (part 2); addresses the terminology regarding disgorgement of profits (part 3); the application of disgorgement of profits in different areas of the law (part 4); the calculation of profits to be disgorged (part 5); adjacent areas, such as negotiorum gestio (part 6) and punitive or aggravated damages (part 7); the links between administrative financial sanctions and private law remedies (part 8); and ends with an evaluation (part 9).