Israel's Mandatory Arbitration
Bill (MA) is troubling. Justice Minister Yaakov Neeman proposed it.
It mandates compulsory arbitration for civil suits filed in Magistrate
Courts.
The Court president or deputy may order it. Litigants have no say. Neeman
claims it's needed to reduce excessive case loads. His hidden agenda
has other things in mind. Judicial fairness will be compromised if he
prevails.
On September 4, Knesset members discussed it ahead of second and third
readings. Strong opposition exists. More on that below.
Arbitration is an alternate form of dispute resolution. It's common
in commercial disagreements. Costly litigation is avoided. So are conventional
court proceedings.
When voluntary, both sides agree to let an arbitrator or arbitral panel
review evidence and impose binding rulings.
Mandatory arbitration is more controversial. It lets one party impose
its will on another. In commercial disputes, companies have bargaining
power at the expense of consumers. Litigation rights are denied. So
are class actions. Unfair proceedings result. Outcomes may be predetermined.
Israel's MA bill lets courts forward civil suits to private lawyers.
They'll become designated arbitrators. Litigants can't sue.
The Association for Civil Rights in Israel (ACRI) said this measure
"has no equivalent anywhere in the world." If enacted, Israeli judicial
fairness will be severely compromised.
ACRI, Israeli Supreme Court President Asher Grunis, retired justices,
and prominent jurists oppose the bill for good reason.
ACRI attorney Anne Suciu calls it step one toward privatizing Israel's
courts. Doing so will severely damage judicial fairness. Unlike judicial
vetting, the main qualification for arbitrators is seven years seniority.
Another is the absence of frequent conflicts of interest between his
or her proposed arbitral status and outside financial interests.
According to legislative language, individuals with some, but not too
many, conflicts are eligible. Moreover, no limitation is placed on ones
considered minor. No definition explains.
Growing criticism in some countries led to greater protection for weaker
parties in arbitration disputes. Israel's measure denies it. According
to Suciu:
"Years of under-funding led to an unbearable burden on the court system.
Instead of solving this problem by amending the system, many decision-makers
blindly accept the view that privatization is the desired solution for
almost every public service that is not properly functioning."
"The Mandatory Arbitration Bill is an extreme initiative that has no
equivalent anywhere in the world, and it could violate the basic right
to a due process."
Israel's Basic Law states that "person(s) vested with judicial power
shall not, in judicial matters, be subject to any authority but that
of the Law."
Legal provisions are intended to ensure judicial independence. Qualifications
for judges are strict. They include ethical standards, salaries, length
of service, termination of service, and others. According to Israeli
Supreme Court Judge Ayala Procaccia:
"We set the standards of behavior that apply to specific judges. They
are subject to strict standards of conduct not only judgment, but also
in other walks of life….They have to understand that the judgment is
not just a job. It is a way of life."
Suciu believes that transferring civil jurisdiction authority to private
parties reflects a "simplistic and flawed judicial role of a specific
solution to the conflict between" two parties.
Doing so ignores "competent court of law interpretation," longstanding
social values, fundamental rights and obligations, and rule of law priorities.
Civil litigation is a right. It plays a key role in democratic societies.
Privatizing the judiciary compromises freedom. Israel's MA bill raises
fundamental constitutional issues. It's excessive and unreasonable.
It damages the public's trust in courts.
According to Supreme Court Judge Mishal Hashin, judicial access is "an
essential basic right." It's also "the life blood of the court. (When)
the path to the court is obstructed, whether directly or indirectly,
or even partially, it undermined the raison d'être of the judiciary."
At the same time, legal procedures and laws aren't absolute. Times change,
and so do they. Doing so should strengthen democracy, not compromise
it. Denying judicial access is dangerously unreasonable.
Privatizing judicial authority compromises basic rights. Mandatory arbitration
undermines its intended purpose. Strict regulations, ethics standards,
and a supervisory system govern judges.
The arbitrator selection process is lax by comparison. No restrictions
are placed on political activity, private practice, income, or other
activities potentially compromising their independence. Arbitrators
can live double lives.
MA bill provisions include operating according to substantive law and
evidentiary rules. However, arbitrators won't be bound by judicial procedures
and some Arbitration Law mandates.
Arbitrators will be able to make up his or her own rules and operate
virtually ad hoc. Moreover, qualified jurists may be shut out. Only
persons who've practiced law are eligible. Judges, law professors, and
others with legal expertise won't qualify without this credential.
In addition, the bill greatly empowers Israel's justice minister. He
alone may determine who's qualified for appointment. Selection standards
should be no different than for judges. No one person should have sole
authority.
On September 5, the Jerusalem Post headlined "Supreme Court President
stops Neeman arbitration reform," saying:
Israel's High Court of Justice President Asher Grunis strongly opposes
Israel's MA bill. As a result, the Knesset Constitution, Law and Justice
Committee asked Neeman to respond.
Grunis isn't alone. Other bill opponents include Knesset members, the
Israel Bar Association, senior jurists, ACRI, and other legal experts
concerned about privatizing legal procedures.
Neeman's history is checkered. Previous initiatives he supported empowered
the executive and legislative branches at the expense of the judiciary.
He's no friend of judicial fairness and other democratic values.
MA bill critics call it poorly designed. It's rife with provisions likely
to compromise judicial independence, due process, judicial relief, and
other constitutional protections.
Litigants also have no say. If ordered to arbitration, they'll be shut
out of conventional judicial proceedings. Labor MK Isaac Herzog accused
Neeman of trying to pull off a "revolution." He also said he was undercutting
Grunis' authority.
Overburdened court dockets don't justify compromising judicial fairness.
Instead of arbitrators, Israel's Bar Association urged appointing temporary
judges during overload periods.
Israel long ago headed down a slippery slope. Its democracy is seriously
flawed. It's more hypocrisy than real. Mandatory arbitration assures
further weakening. Political reality can't hide disturbing attempts
to transform its deficiencies into strengths.
Arabs never had rights. Jewish ones are eroding en route to eliminating
them altogether. Israel isn't just a pariah state. It's a failed one.
It's just a matter of time before concealing it becomes impossible.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "How Wall Street Fleeces America: Privatized
Banking, Government Collusion and Class War"
http://www.claritypress.com/Lendman.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge
discussions with distinguished guests on the Progressive Radio News
Hour on the Progressive Radio Network Thursdays at 10AM US Central time
and Saturdays and Sundays at noon. All programs are archived for easy
listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
Privatizing Israel's Legal System
By Stephen Lendman
9-24-11
Israel's Mandatory Arbitration Bill (MA) is troubling. Justice Minister
Yaakov Neeman proposed it. It mandates compulsory arbitration for civil
suits filed in Magistrate Courts.
The Court president or deputy may order it. Litigants have no say. Neeman
claims it's needed to reduce excessive case loads. His hidden agenda
has other things in mind. Judicial fairness will be compromised if he
prevails.
On September 4, Knesset members discussed it ahead of second and third
readings. Strong opposition exists. More on that below.
Arbitration is an alternate form of dispute resolution. It's common
in commercial disagreements. Costly litigation is avoided. So are conventional
court proceedings.
When voluntary, both sides agree to let an arbitrator or arbitral panel
review evidence and impose binding rulings.
Mandatory arbitration is more controversial. It lets one party impose
its will on another. In commercial disputes, companies have bargaining
power at the expense of consumers. Litigation rights are denied. So
are class actions. Unfair proceedings result. Outcomes may be predetermined.
Israel's MA bill lets courts forward civil suits to private lawyers.
They'll become designated arbitrators. Litigants can't sue.
The <http://www.acri.org.il/en/2012/09/03/mandatory-arbitration-bill/>Association
for Civil Rights in Israel (ACRI) said this measure "has no equivalent
anywhere in the world." If enacted, Israeli judicial fairness will be
severely compromised.
ACRI, Israeli Supreme Court President Asher Grunis, retired justices,
and prominent jurists oppose the bill for good reason.
ACRI attorney Anne Suciu calls it step one toward privatizing Israel's
courts. Doing so will severely damage judicial fairness. Unlike judicial
vetting, the main qualification for arbitrators is seven years seniority.
Another is the absence of frequent conflicts of interest between his
or her proposed arbitral status and outside financial interests.
According to legislative language, individuals with some, but not too
many, conflicts are eligible. Moreover, no limitation is placed on ones
considered minor. No definition explains.
Growing criticism in some countries led to greater protection for weaker
parties in arbitration disputes. Israel's measure denies it. According
to Suciu:
"Years of under-funding led to an unbearable burden on the court system.
Instead of solving this problem by amending the system, many decision-makers
blindly accept the view that privatization is the desired solution for
almost every public service that is not properly functioning."
"The Mandatory Arbitration Bill is an extreme initiative that has no
equivalent anywhere in the world, and it could violate the basic right
to a due process."
Israel's Basic Law states that "person(s) vested with judicial power
shall not, in judicial matters, be subject to any authority but that
of the Law."
Legal provisions are intended to ensure judicial independence. Qualifications
for judges are strict. They include ethical standards, salaries, length
of service, termination of service, and others. According to Israeli
Supreme Court Judge Ayala Procaccia:
"We set the standards of behavior that apply to specific judges. They
are subject to strict standards of conduct not only judgment, but also
in other walks of life….They have to understand that the judgment is
not just a job. It is a way of life."
Suciu believes that transferring civil jurisdiction authority to private
parties reflects a "simplistic and flawed judicial role of a specific
solution to the conflict between" two parties.
Doing so ignores "competent court of law interpretation," longstanding
social values, fundamental rights and obligations, and rule of law priorities.
Civil litigation is a right. It plays a key role in democratic societies.
Privatizing the judiciary compromises freedom. Israel's MA bill raises
fundamental constitutional issues. It's excessive and unreasonable.
It damages the public's trust in courts.
According to Supreme Court Judge Mishal Hashin, judicial access is "an
essential basic right." It's also "the life blood of the court. (When)
the path to the court is obstructed, whether directly or indirectly,
or even partially, it undermined the raison d'être of the judiciary."
At the same time, legal procedures and laws aren't absolute. Times change,
and so do they. Doing so should strengthen democracy, not compromise
it. Denying judicial access is dangerously unreasonable.
Privatizing judicial authority compromises basic rights. Mandatory arbitration
undermines its intended purpose. Strict regulations, ethics standards,
and a supervisory system govern judges.
The arbitrator selection process is lax by comparison. No restrictions
are placed on political activity, private practice, income, or other
activities potentially compromising their independence. Arbitrators
can live double lives.
MA bill provisions include operating according to substantive law and
evidentiary rules. However, arbitrators won't be bound by judicial procedures
and some Arbitration Law mandates.
Arbitrators will be able to make up his or her own rules and operate
virtually ad hoc. Moreover, qualified jurists may be shut out. Only
persons who've practiced law are eligible. Judges, law professors, and
others with legal expertise won't qualify without this credential.
In addition, the bill greatly empowers Israel's justice minister. He
alone may determine who's qualified for appointment. Selection standards
should be no different than for judges. No one person should have sole
authority.
On September 5, the <http://www.jpost.com/NationalNews/Article.aspx?id=283860>Jerusalem
Post headlined "Supreme Court President stops Neeman arbitration reform,"
saying:
Israel's High Court of Justice President Asher Grunis strongly opposes
Israel's MA bill. As a result, the Knesset Constitution, Law and Justice
Committee asked Neeman to respond.
Grunis isn't alone. Other bill opponents include Knesset members, the
Israel Bar Association, senior jurists, ACRI, and other legal experts
concerned about privatizing legal procedures.
Neeman's history is checkered. Previous initiatives he supported empowered
the executive and legislative branches at the expense of the judiciary.
He's no friend of judicial fairness and other democratic values.
MA bill critics call it poorly designed. It's rife with provisions likely
to compromise judicial independence, due process, judicial relief, and
other constitutional protections.
Litigants also have no say. If ordered to arbitration, they'll be shut
out of conventional judicial proceedings. Labor MK Isaac Herzog accused
Neeman of trying to pull off a "revolution." He also said he was undercutting
Grunis' authority.
Overburdened court dockets don't justify compromising judicial fairness.
Instead of arbitrators, Israel's Bar Association urged appointing temporary
judges during overload periods.
Israel long ago headed down a slippery slope. Its democracy is seriously
flawed. It's more hypocrisy than real. Mandatory arbitration assures
further weakening. Political reality can't hide disturbing attempts
to transform its deficiencies into strengths.
Arabs never had rights. Jewish ones are eroding en route to eliminating
them altogether. Israel isn't just a pariah state. It's a failed one.
It's just a matter of time before concealing it becomes impossible.
Stephen Lendman lives in Chicago and can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "How Wall Street Fleeces America: Privatized
Banking, Government Collusion and Class War"
http://www.claritypress.com/Lendman.html
Visit his blog site at sjlendman.blogspot.com and listen to cutting-edge
discussions with distinguished guests on the Progressive Radio News
Hour on the Progressive Radio Network Thursdays at 10AM US Central time
and Saturdays and Sundays at noon. All programs are archived for easy
listening.
http://www.progressiveradionetwork.com/the-progressive-news-hour
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