How is foreign law proved in an Israeli arbitration, and what happens if neither party proves it?

Choosing a foreign governing law is straightforward under the Arbitration Law 5728-1968 and under the International Commercial Arbitration Law 5784-2024. Proving that law is a separate exercise. The First Schedule to the Arbitration Law releases an arbitrator from the rules of evidence and civil procedure, so a tribunal has wide latitude over how the material comes in: a written expert opinion, cross-examination of the expert, statutes and authorities in translation, or agreed points of foreign law. What the tribunal will not usually do is research the foreign law itself, and an award that simply asserts a foreign rule without an evidential basis invites an argument on enforcement. Where both sides submit competing opinions the tribunal decides between them as it would between any two experts.

The default rule is the real trap for foreign parties. Because unproved foreign law is presumed to be identical to Israeli law, a party that relies on its home law but does not fund an expert opinion effectively litigates under Israeli law by accident. Budget for the opinion at the outset, agree with the other side where possible on which points of foreign law are actually in dispute, and narrow the expert's mandate to those points. Note also that a mistake about the governing law is not, on its own, a ground to set an award aside: Section 24 of the Arbitration Law contains a closed list, and error of law is not on it. See our guide on choice of law in Israeli arbitration.

From the full guide: Choice of Law in Israeli Arbitration

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