Forum non conveniens is a procedural doctrine that allows an Israeli court to decline jurisdiction over a dispute when a substantially more appropriate forum exists elsewhere. For international businesses and foreign plaintiffs drawn into Israeli litigation, understanding this defence is essential: it can determine whether a case proceeds in Israel or is redirected to a foreign court that is better placed to hear it. This guide covers the legal basis of the doctrine in Israel, the procedural mechanics of raising the defence, the factors Israeli courts weigh, common strategic mistakes, and what foreign parties should anticipate at each stage.
Forum non conveniens is a doctrine that gives a court discretion to stay or dismiss proceedings when another forum is clearly more appropriate. In Israel, the doctrine is not codified in a single statute. Instead, it has been developed through case law, primarily under the framework of the Civil Procedure Regulations and the general jurisdiction provisions of the Courts Law. Israeli courts have recognised the doctrine as part of their inherent power to manage proceedings fairly and efficiently.
The doctrine operates as a defence rather than a jurisdictional objection in the strict sense. An Israeli court may have valid jurisdiction over a defendant - for example, because the defendant was served in Israel or because the parties agreed to Israeli jurisdiction - yet still conclude that the case should be heard elsewhere. The defendant bears the burden of demonstrating that a foreign forum is not merely convenient but clearly more appropriate.
A key distinction in Israeli law is between cases where jurisdiction is founded on a genuine connection to Israel and cases where it rests on a technical or transient basis. Courts are more receptive to a forum non conveniens application when jurisdiction was established through, for instance, temporary presence in Israel rather than through a substantive link such as a contract performed in Israel or harm suffered on Israeli territory.
Israeli procedural law draws on both domestic legislation and comparative common law principles. The Civil Procedure Regulations govern the mechanics of applications, while the Courts Law and the Private International Law provisions in the Conflict of Laws (Legislative Amendments) Law provide the broader framework for determining when Israeli courts should exercise jurisdiction over cross-border disputes.
The Supreme Court of Israel has addressed forum non conveniens in a series of decisions that establish the governing principles. The court has consistently held that the doctrine requires a two-stage analysis. First, the applicant must identify a specific alternative forum that is available and competent to hear the dispute. Second, the court must weigh a range of connecting factors to determine whether that alternative forum is clearly more appropriate than Israel.
Israeli courts also consider whether the plaintiff chose Israel as a forum in good faith or engaged in forum shopping - that is, selecting Israel primarily to gain a procedural or substantive advantage unavailable elsewhere. Evidence of deliberate forum shopping weighs against the plaintiff and strengthens the defendant';s application. Conversely, a plaintiff who has a genuine connection to Israel, such as an Israeli resident or a company incorporated under the Companies Law, 5759-1999, will face a higher threshold to have the case transferred.
The competent court for most commercial disputes is the District Court, which handles cases above the monetary threshold set by the Magistrates Court Law. The Supreme Court exercises appellate jurisdiction and has shaped the doctrine through its rulings on interlocutory appeals from forum non conveniens decisions.
A defendant wishing to raise forum non conveniens in Israel must act promptly. Under the Civil Procedure Regulations, a defendant who files a substantive defence on the merits without first raising a jurisdictional or procedural objection risks waiving the right to challenge the forum. The application should be filed as a preliminary motion, typically before or simultaneously with the statement of defence.
The motion must be supported by an affidavit setting out the factual basis for the claim that a foreign forum is more appropriate. The affidavit should address the location of witnesses and evidence, the governing law of the dispute, the place of performance of any relevant contract, and the practical ability of the parties to litigate in the proposed alternative forum. Vague or conclusory assertions are unlikely to succeed; Israeli courts expect concrete, particularised evidence.
The defendant must also demonstrate that the alternative forum is available and will accept jurisdiction. This typically requires evidence of the foreign court';s competence - for example, an expert opinion on foreign law confirming that the foreign court has jurisdiction and that the claim is not time-barred there. A common mistake is to assume that pointing to a foreign jurisdiction clause in a contract is sufficient. Israeli courts will examine whether the foreign court is genuinely accessible and whether the plaintiff will receive a fair hearing.
Practical steps in raising the defence include:
If you are advising a foreign client facing Israeli proceedings and need to assess whether a forum non conveniens application is viable, contact info@vlolawfirm.com. We can help structure the setup correctly the first time.
Israeli courts apply a multi-factor balancing test rather than a mechanical rule. No single factor is determinative, and the weight given to each will depend on the specific circumstances of the case. The following factors recur consistently in Israeli case law.
The location of witnesses and evidence is often the most significant practical consideration. If the key witnesses are located abroad and documentary evidence is held in a foreign jurisdiction, the cost and difficulty of bringing that evidence to Israel weighs in favour of the foreign forum. Israeli courts are sensitive to the burden placed on foreign witnesses who cannot be compelled to appear in Israel.
The governing law of the dispute carries substantial weight. If the contract or transaction is governed by foreign law, the Israeli court will need to receive expert evidence on that law, which increases cost and complexity. A foreign court applying its own domestic law is generally better placed to adjudicate the dispute accurately and efficiently.
The place where the relevant events occurred - the place of contracting, performance, or the occurrence of harm - is a strong connecting factor. A dispute arising entirely from events in a foreign country, with only a tenuous link to Israel, is a strong candidate for transfer.
The residence or domicile of the parties matters, but it is not conclusive. An Israeli plaintiff';s choice of Israeli courts is entitled to respect, but it can be overridden if the other factors strongly favour a foreign forum. A foreign plaintiff who chose Israel strategically will receive less deference.
The enforceability of any eventual judgment is a practical consideration that courts increasingly acknowledge. If a judgment from an Israeli court would be difficult to enforce in the country where the defendant';s assets are located, this may support the case for litigating in that country directly.
The interests of justice and the efficient administration of the court system are overarching considerations. Israeli courts are mindful of their own docket and will not retain cases that have no real connection to Israel simply because jurisdiction was technically established.
For a foreign defendant served with Israeli proceedings, the forum non conveniens defence is often the first and most important strategic decision. Engaging on the merits without first challenging the forum can be costly and may waive the right to object later. The decision to raise the defence should be made quickly, ideally within the first weeks after service.
Consider two practical scenarios. In the first, a German manufacturer is sued in Israel by an Israeli distributor over a supply agreement governed by German law, with all performance in Germany and all witnesses located there. The Israeli court has jurisdiction because the distributor is Israeli, but the connecting factors strongly favour Germany. A well-prepared forum non conveniens application, supported by expert evidence on German law and an undertaking to submit to German jurisdiction, has a realistic prospect of success.
In the second scenario, a foreign investor sues an Israeli technology company in Israel over a share purchase agreement that was negotiated and signed in Israel, governed by Israeli law, and involving Israeli parties. The investor is foreign but chose Israel as the forum. Here, the connecting factors favour Israel, and a forum non conveniens application by the Israeli defendant is unlikely to succeed. The defendant';s resources are better spent on the merits.
A non-obvious requirement is the undertaking to submit to foreign jurisdiction. Israeli courts will not transfer a case to a foreign forum if there is a real risk that the defendant will then challenge jurisdiction in that forum as well. The defendant must give a credible, binding undertaking to submit to the proposed forum and, where relevant, to waive any limitation defence that has arisen since the Israeli proceedings began.
Many foreign defendants underestimate the importance of the limitation period issue. If the claim would be time-barred in the proposed foreign forum, the Israeli court will be reluctant to transfer the case, as doing so would effectively deny the plaintiff any remedy. The defendant should address this proactively, either by confirming that the claim is not time-barred abroad or by undertaking not to raise a limitation defence in the foreign proceedings.
Another common mistake is failing to address the plaintiff';s practical ability to litigate abroad. If the plaintiff is an individual of modest means and the proposed forum is a distant jurisdiction, the court may decline to transfer on access-to-justice grounds. Defendants should anticipate this argument and, where possible, offer practical accommodations such as agreeing to conduct proceedings in a language accessible to the plaintiff.
Forum non conveniens does not operate in isolation. Many international commercial contracts contain exclusive jurisdiction clauses or arbitration agreements, and these interact with the doctrine in important ways under Israeli law.
Where a contract contains an exclusive jurisdiction clause in favour of a foreign court, the Israeli court will generally give effect to that clause under the Private International Law framework. The forum non conveniens analysis in such cases is largely subsumed by the question of whether the jurisdiction clause is valid and enforceable. Israeli courts respect party autonomy in commercial contracts and will ordinarily stay Israeli proceedings in favour of the contractually chosen forum, unless there are strong reasons not to - for example, if the clause was obtained by fraud or if enforcement would be manifestly unjust.
Arbitration agreements present a distinct but related issue. Where the parties have agreed to arbitrate, the Arbitration Law, 5728-1968 governs. An Israeli court will generally stay proceedings in favour of arbitration if a valid arbitration agreement exists and the dispute falls within its scope. The forum non conveniens doctrine is less directly relevant in this context, but the underlying policy - directing disputes to the most appropriate forum - is the same.
Where there is no jurisdiction clause, the forum non conveniens analysis proceeds on the multi-factor basis described above. Foreign defendants should check carefully whether any contract or related agreement contains a jurisdiction or arbitration clause before deciding how to frame their preliminary objection. Raising forum non conveniens when an exclusive jurisdiction clause already resolves the issue may be unnecessary and could complicate the application.
A practical tip for foreign businesses entering contracts with Israeli counterparties: a well-drafted exclusive jurisdiction clause in favour of a neutral or home-country forum, combined with a governing law clause, provides the most reliable protection against being drawn into Israeli litigation. Retroactively invoking forum non conveniens is more uncertain and more expensive than preventing the problem at the drafting stage.
What is the main risk of waiting too long to raise a forum non conveniens defence in Israel?
Delay is the most common and most damaging mistake in forum non conveniens applications. Under the Civil Procedure Regulations, a defendant who participates in the substantive proceedings - for example, by filing a defence on the merits, requesting extensions, or engaging in discovery - may be treated as having submitted to Israeli jurisdiction and waived the right to challenge the forum. Israeli courts have held that procedural conduct inconsistent with a jurisdictional objection can amount to a waiver even if no formal submission was made. The practical consequence is that the defendant loses the ability to redirect the case to a more appropriate forum and must litigate in Israel on the merits. Foreign defendants should seek legal advice immediately upon being served with Israeli proceedings and should file any forum non conveniens application before taking any step that could be construed as engagement on the merits.
How long does a forum non conveniens application typically take in Israel, and what does it cost?
The timeline varies depending on the complexity of the case and the court';s docket. A straightforward application in the District Court may be decided within a few months of filing, while a contested application involving expert evidence on foreign law and multiple rounds of submissions can take considerably longer. Appeals to the Supreme Court add further time. In terms of cost, professional fees for preparing and arguing a forum non conveniens application typically start from the low thousands of USD for a simple case and can rise significantly for complex international disputes requiring expert evidence. Court filing fees in Israel are modest relative to professional fees. Parties should also budget for the cost of obtaining expert opinions on foreign law, which is often a necessary element of the application.
Can a plaintiff resist a forum non conveniens application by arguing that Israeli law is more favourable?
A plaintiff may argue that Israeli law provides a remedy or a procedural advantage not available in the proposed foreign forum, but this argument carries limited weight on its own. Israeli courts have held that the mere fact that Israeli law is more favourable to the plaintiff - for example, because it provides a higher damages ceiling or a longer limitation period - does not justify retaining jurisdiction when the connecting factors clearly favour a foreign forum. The court';s focus is on the overall balance of convenience and justice, not on maximising the plaintiff';s recovery. However, if the plaintiff can demonstrate that the foreign forum would deny a substantive remedy entirely - for instance, because the claim is not recognised under foreign law - this is a stronger argument for retaining the case in Israel. The distinction is between a forum that is less advantageous and one that is effectively unavailable.
Forum non conveniens is a nuanced but powerful tool in Israeli litigation. Success depends on prompt action, concrete evidence, and a credible undertaking to submit to the proposed foreign forum. Both defendants seeking to redirect cases and plaintiffs resisting such applications need a clear understanding of the factors Israeli courts apply and the procedural steps required.
VLO Law Firms advises international clients on litigation matters in Israel. We can assist with forum non conveniens applications, preliminary jurisdictional motions, expert evidence coordination, and cross-border dispute strategy. To request a consultation, contact: info@vlolawfirm.com