Serving court papers to a customs agent for an importer from the Palestinian Authority

Serving court papers to a customs agent for an importer from the Palestinian Authority

Adv. Gill Nadel, Moran Shmilovich

For the court to be able to conduct the action of a plaintiff against a defendant, a duty rests upon the plaintiff to serve the defendant with the statement of claim. Without proper service, the court cannot discuss the action. The best way, of course, is to give the statement of claim to the defendant himself at his registered address, but sometimes doing so is complicated or even impossible. Such is the situation when an Israeli plaintiff wishes to sue an importer located in the Palestinian Authority, since it is not possible to physically give the statement of claim to the Palestinian importer.

However, in this case, there is a certain shortcut called "serving to a licensed representative". Ordinance 482 (a) to the Civil Procedure Ordinances states that in an action regarding a business or workplace against a person who is not found within the jurisdiction of the court that issues the court papers, it is sufficient to serve the manager or representative acting at that time on behalf of that person in managing that business or workplace in that jurisdiction. That is, the court papers can be given to an agent of the foreign corporation who is found in Israel.

The courts have discussed the question of who is a "representative" in the past and ruled that the concept representative should not be interpreted in the technical meaning of an agent, and that the deciding test for this question in the intensity of the relationship between the representative and the defendant, so that it can be assumed that the representative will bring the proceedings filed against the defendant to his attention.

Recently, three decisions were given in the District Court of Petah Tiqwa on the matter of the Adidas Corporation which sued Palestinian importers regarding the infringement of intellectual property rights. In those decisions, service of papers to Palestinian importers through the customs agent of the importer was permitted, as the court saw the customs agent as a "representative" under ordinance 482(a), in light of the intensity of the relationship between the customs agent and the Palestinian importers (Civil case 1809/09 and others, given 3.12.09).

These decisions were based on the decision of the District Court of Tel Aviv a number of years ago discussing at length the subject of serving court papers to a Palestinian importer. That case involved a Palestinian importer who imported to Israel a chemical substance that served as the active ingredient in an innovative medicine manufactured by a Canadian corporation, which owned a patent to the chemical substance. The Customs Authority held the shipment of the chemical substance imported by the Palestinian importer due to a suspicion that arose regarding the violation of the Canadian patent.

The Canadian corporation referred to the court with a petition for temporary measures to prevent the Palestinian importer from making use of the chemical substance that violated the patent in its possession. Additionally, the corporation filed an action for compensation against the Palestinian importer. The petition and the suit were served to the Palestinian importer via his customs agent. The Palestinian importer claimed, in opposition, that the petition and the statement of claim had not been properly served and therefore the court did not acquire jurisdiction to conduct the action.

The court was aware of the fact that there is an emergency directive arranging legal aid that the Palestinian Authority must give the State of Israel regarding the serving of legal documents on civil matters, but the court ruled that this is not an exclusive arrangement that negates the possibility of using another tool for serving- serving to a representative. The court explained that at the basis of the emergency directive was the hope for cooperation and mutual assistance between the Palestinian Authority and Israel in the field of legal aid, but under the present reality the conclusive interpretation does not serve the purpose of the directive, but rather harms the Israeli public interest, and therefore the court ruled that the directive is not conclusive and does not exclude serving by other means.

The court continued to rule that serving of the court papers to the customs representative acting on behalf of the Palestinian importer was done lawfully, on the basis of the fact that these are proceedings related to goods held by customs, and therefore the relationship between the owner of the goods and the customs representative properly ensures the existence of the transfer process, and justifies seeing the customs agent as one who has been appointed by the owner of the goods to conduct his business on all matters relating to the goods on the timeline from the goods reaching the port until their transfer to the owners or their representatives. (Civil request 3069/03 Merack Frost Canada & Co v Palestine Pharmaceutical Company).

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