Contributed By Gilat, Bareket & Co., Reinhold Cohn Group
Preliminary remedies are available in the Israeli legal system. These include: preliminary injunctions, Anton Piller-type search-and-seizure orders, receivership orders, attachment (lien) orders, and other interim reliefs. In addition, the court has the power to grant any appropriate remedy under case circumstances.
A preliminary remedy is typically requested simultaneously with or shortly after filing the statement of claims; the court may grant a preliminary remedy prior to filing the statement of claims if it was found that such measure is justified in the circumstances, in which case the claim must be filed within seven days or as prescribed by the court.
In order to receive a preliminary remedy, the applicant must show that immediate intervention by the court is needed to preserve the status quo and to prevent irreparable harm. The applicant must also petition for interim remedy in good faith and in a timely manner to avoid the petition from being barred by the doctrine of 'unclean hands' or by laches, respectively. The court will consider whether the interim remedy is just and appropriate in the circumstances.
To obtain preliminary remedy, the applicant must establish through prima facie evidence that:
Interim relief proceedings are normally conducted inter partes. Ex parte remedy may be available if the applicant persuades the court by prima facie evidence that deferring the remedy until an inter partes hearing may defeat the purpose of the order or cause the applicant severe damage.
Applications for search-and-seizure orders, attachment orders, and orders restricting use of an asset (Mareva-like orders) are the exception to the general rule and are normally heard ex parte unless the court is satisfied that an inter partes hearing would not frustrate the purpose of the requested order. An ex parte order other than an attachment must be followed by an inter partes hearing within and no later than 14 days. Hearing an application for ex parte order, the court will exercise greater caution than in inter partes proceedings.
Applications for interim remedy are made as a written application. The respondent then has 20 days to respond to the application and the applicant may in its option reply to the respondent’s response. All factual contentions in the application, response and reply must be supported by an affidavit. As a rule, the parties have a right to cross-examine the affiants during the hearing of the application. The judge may issue the decision at the conclusion of the hearing or may defer the decision, either to take the matter under advisement or to allow the parties to sum up in writing. Applications for interim remedy may be resolved within days, weeks and sometimes several months.
The president of the remedy court or a judge to whom such powers were delegated may order the main case to be expedited in lieu of hearing an application for interim relief. Where the issues are complex, judges may be inclined to follow this route.
In general, for an interim remedy to be issued, the case should be relatively clear and strong. In recent years, there has been a decrease in the tendency of trial courts to issue such remedy.
Security for the defendant’s damages resulting from an expired temporary remedy order: as a precondition for interim remedy to be effective, the applicant is required to provide a personal unlimited undertaking and a third-party guarantee (typically, a bank guarantee) at an amount set by the court to indemnify the defendant for his or her damages if the claim terminates or the order expires.
The court may exempt the applicant from the requirement of providing a guarantee out of considerations of justice and for special reasons, but the requirement of providing a personal unlimited undertaking is a mandatory requirement. Also, the court may require the applicant to post a bond if the court deemed it just to do so, and the court as a general rule will require a bond in respect of ex parte orders unless the court deemed it just to exempt the applicant from such requirement.
On termination or expiration of a temporary remedy order, the defendant (respondent) may file, within six months, an application to order the plaintiff to compensate the defendant for damages it suffered from the order, and the court will rule on it. See Unipharm v Sanofi (in 2.13 Restrictions on Assertion of Intellectual Property Right), where the District Court ordered that a generic company that opposed a patent application that was withdrawn by the patent applicant may be entitled to disgorge part of the patent applicant’s profits. It was found that the patent application was prosecuted improperly in an attempt to extend the patent protection for a pharmaceutical product about to become off-patent.