Haifa District Court: A Personal Status German Judgment Cannot be Recognized as Barred by a Treaty By: Adv. Haggai Carmon

Published by haggai@carmonlaw.com in Uncategorized on February 11th, 2013 | No Comments »

Petitioner, a German citizen, was appointed by a German court as the guardian to an incapacitated woman, who lives in a nursing home in Boirzvorg, Germany (“Decision A”). The incapacitated woman had funds deposited in a bank account in Bank Yahav’s branch in Haifa, Israel. After the bank refused to continue approving transfers of funds from the account in Israel to the incapacitated woman’s account in Germany, the Petitioner (the incapacitated woman’s legal guardian) sought an order from the German court permitting it to perform any act, including the transfer of funds from the account in Israel to the German bank account (“the Decision”).

Following this decision, Petitioner asked the Israeli bank to renew the transfer of funds, but the bank refused, arguing that in order to have the decision of the German court binding upon him, the process of requesting the foreign judgment be recognized under the provisions of the Foreign Judgments Enforcement Law- 1958 (the “Law”). Under these circumstances, Petitioner filed an application in an Israeli court to have the decision recognized in accordance with Section 11 (a) of the law. Following the court decision, the Custodian General of Israel was requested to inform the court whether he was interested in joining the proceedings.

Before examining the fulfillment of the conditions required for “direct recognition” under Section 11 (a) of the law, the court must settle the preliminary question of how to treat the two decisions rendered by the German court: Should each decision be considered individually as a stand-alone decision or is there a sufficiently strict connection between the two decisions which requires the Court to treat them as a single unit. The Court emphasized that a decision on this issue is of such great importance in determining whether the preconditions for direct recognition exist.

The preconditions for direct recognition of a foreign judgment is the existence of a treaty between Israel and the foreign state regarding recognition of foreign judgments, as well as meeting the conditions of that treaty. Israel and Germany had ratified a treaty: Foreign Judgements Enforcement Regulations (treaty with the Federal Republic of Germany), 1981)) (the “Treaty”). However, section 4 (1) (1) Chapter II of the treaty states that the treaty does not apply to “decisions on matters of marriage or other matters pertaining to marital status and the decisions carried out in personal status or legal capacity of people, and the decisions on matters of Property Relations between Spouses.”

The parties disagreed as to treatment of the two decisions of the German Court: According to the Applicant, any single decision stands on its own, and subject of the application in question is to know how Decision B in which the applicant was granted authority to operate the account of a privileged discussion with the respondent. However, according to the Custodian General who joined the proceedings, Decision B emanates from Decision A, in which the Applicant was appointed as a Guardian to the incapacitated woman, and the two decisions cannot be separated.

The court accepted the position of the Custodian General stating that Decision A is a central and essential decision, and Decision B is an operational decision resulting from Decision A and emanates from it. Therefore, the Court felt, it could not comment on only Decision A as a standalone and isolated decision, but at the two decisions jointly – as one.

Therefore, the application before the Court is in fact to apply “direct recognition” of Decision A and Decision B, and as they determined as a “one piece” decision. As noted above, Decision A is not given to recognition in Israel, because it is concerned with a person’s personal legal capacity, a subject which is explicitly excluded, as stated, under the treaty. The result is, therefore, that the application should be denied.

Parenthetically, the court highlighted that given the problematic situation created, which prevented the transfer of moneys between the accounts financing of the incapacitated woman’s home, they hoped that a joint effort of all parties involved would find a resolution to the issue in the proper way.
36512-11-11 Sabrina Orlowski v. Bank Yahav for Government Employees Ltd.

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