Fayaz Alkotob v Halil Iskander Ahahin

JurisdictionIsrael
CourtSupreme Court (Israel)
Israel, Supreme Court sitting as a Court of Civil Appeal.
Fayaz Alkotob and Others
and
Halil Iskander Shahin and Others

States as international persons State succession Respect for private rights Right of appeal The law of Israel

State territory In general Effects of changes of sovereignty State succession Vested rights Enforcement of judgment of court of former sovereign Continuity of the law Preservation of right of appeal by successor State Whether appeal a matter of public law Whether successor State obliged to set up court of appeal Denial of justice Domestic law and international law The law of Israel.

States as international persons State succession Continuity of the law Pending actions East Jerusalem Israeli occupation Decision of Jordanian court prior to occupation Final appeal to Court of Cassation not lodged because of occupation Whether Israeli courts will enforce judgment Whether Israel obliged to provide for final appeal Abolition of final appeals by Israeli authorities Whether breach of international law The law of Israel

Summary: The facts:Prior to the outbreak of the 1967 war between Israel and the Arab states, the Jordanian Jerusalem Court of Appeal had allowed a claim by two of the respondents in this case against the appellants. Under Jordanian law, the appellants had a final right of appeal to the Court of Cassation. This appeal was never lodged because of the outbreak of war and the occupation of East Jerusalem by Israel. On 28 June 1967 the Israeli authorities promulgated an Order extending Israeli law and administration to the area of East Jerusalem. The law of Israel did not include any provision for an appeal to a Court of Cassation. The District Court of Jerusalem decided to enforce the earlier decision of the Jordanian Court of Appeal. The appellants applied to the Supreme Court of Israel contending that the failure to set up a Court of Cassation or to make provision for an existing court to hear final appeals in the manner of the Jordanian Court of Cassation deprived the appellants of their vested right of appeal and amounted to a breach of international law.

Held:There is no rule of international law which requires a successor State to provide for rights of appeal exactly corresponding with those which had previously existed in the newly acquired territory. Assuming that international law did require that a successor State take steps to preserve the vested rights of inhabitants of newly acquired territory, and that this included making provision for the continuation of legal proceedings already commenced and for the assurance of a right of appeal, it did not require that a second tier of appeal be provided merely because one had existed prior to the change of sovereignty. Moreover, international law did not require a successor State to provide for a further appeal in its new territory when no such appeal existed elsewhere in the State, as the State's new subjects should not be placed in a better situation than the rest of its citizens.

The following is the text of the judgment of the court delivered by Landau J.:

The District Court of Jerusalem decided to enforce judgment given on 13 May 1967 by the Jerusalem Court of Appeal of the Jordanian rgime. The judgment was a majority judgment setting aside a judgment of the Jordanian District Court of Jerusalem, which had dismissed the claim of the first two respondents against six people, four of whom appear as appellants before us and the other two as further respondents. The claim was for compensation for breach of a contract made by the appellants, who own the St. George Hotel in east Jerusalem, with the respondents who had rented two warehouses adjoining the hotel for the purpose of selling gifts and antiquities. The respondents claimed that the appellants had broken the contract by giving others a corner at the entrance of the hotel for the sale of goods of the same kind. The District Court dismissed the claim but the Appeal Court granted the respondents' appeal and bound the appellants to pay them 800 dinars by way of damages with costs.

The Jerusalem District Court decided to make the judgment of the Court of Appeal enforceable pursuant to regulation 11 of the Law and Administration (Continuance of Civil Proceedings, Enforcement of Judgments and Recognition of Documents) Regulations, 57291968 (hereinafter called the Regulations), which were made by the Minister of Justice by virtue of his powers under section 25(2) of the Law and Administration Procedure (Consolidated Version) Law, 57301970 (hereinafter called the Law). Section 25(2) of the Law provides:

The Minister of Justice may, either generally or in respect of certain types of matters, prescribe by regulations...

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