Jewish religious court (Beth Din) lacks power to compel litigants to participate in its process

Commercial Law
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In Live Group Pty Ltd and Anor v Rabbi Ulman and Ors [2017] NSWSC 1759 Justice Sackar made 2 significant findings touching on the power of a Jewish Religious Court (Beth Din) to compel adherents of the Jewish faith to submit their commercial disputes to it for determination instead of pursuing them in civil courts.

First, he found that as a Beth Din was in the nature of a voluntary association, the Court had no power to intervene in the conduct of its affairs, absent an underlying contractual or equitable interest of the parties beyond financial interest or reputation.

Notwithstanding that finding, at [209] he said:

"In my view, for the reasons which follow, the conduct of the   Beth Din   in the Kuzecki commercial dispute displays either arrogant disregard of their own procedures and rules of natural justice, substantial ineptitude, or inexperience dealing with commercial disputes (see T19/20-50). I am satisfied that were the   Beth Din’s affairs justiciable in this respect, there would be strong grounds for a finding of apprehension of bias."


Secondly, he found that the threat by the judges of the Beth Din to impose religious sanctions on the party who refused to submit to its jurisdiction constituted contempt of court, in the sense that it tended to undermine the administration of justice.

The result appears to be that an adherent of the Jewish faith who refuses to participate in proceedings before a Beth Din to adjudicate on a commercial dispute may not be sanctioned by the Beth Din in the only way that it has power to do - that is, by imposing religious sanctions.

That is not to say that parties who have included in their commercial agreement a fully enforceable arbitration clause by which they agree to submit disputes to a Beth Din cannot enforce that agreement through the courts. They could do so. However, having regard to the conduct of the Beth Din as displayed in this case, one would have to question its ability to satisfactorily conduct such proceedings.

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Michael Wise QC practises in commercial law and intellectual property law

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