ISRAEL Law and Practice Contributed by: Eran Bareket, Reinhold Cohn Group
should the preliminary remedy be granted, as well as harm that may be caused to a differ- ent entity or to any matter of public concern; • whether it is possible to grant another remedy that will cause lesser harm to the respond- ent, that achieves the purpose for which the preliminary remedy was requested; • the good faith of the parties, regarding the essence of the matter in discussion and regarding the suit filed and the application for preliminary remedy; and • the delay (laches), if any, by the applicant in the filing of the statement of claims and in preliminary remedy, having regard to the circumstances at issue. Procedure Interim relief proceedings are normally conduct- ed inter partes. An ex parte remedy may be avail- able if the applicant persuades the court by pri- ma facie evidence that deferring the grant of the remedy until an inter partes hearing may defeat the purpose of the order or cause the applicant severe harm. When hearing an application for an ex parte order, the court will exercise greater caution than in inter partes proceedings. Applications for search-and-seizure orders and temporary attachment 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 one for attachment must be followed by an inter partes hearing within, and no later than, 14 days. The applicant continues to bear the bur- den of persuasion during the inter partes hearing notwithstanding the grant of the ex parte order. Applications for an interim remedy are made in writing. The respondent then has 20 days (or less according to the court’s decision) to respond to
the application. All factual contentions in the application, response and reply must be sup- ported by an affidavit. As a general rule, the par- ties 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. Applications for interim remedies should be resolved within 14 days. The president of the remedy court, or a judge to whom such powers have been 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 interim rem- edies. Security for the Defendant’s Damages Resulting From an Expired Temporary Remedy Order As a precondition for an interim remedy to become effective, the applicant is required to provide a personal undertaking not limited by any amount and, in addition, a third-party guar- antee (typically, a bank guarantee) at an amount set by the court to indemnify the defendant for its damages if the claim terminates or if 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 per- sonal undertaking not limited by any amount is mandatory. In addition, the court may require the applicant to post a bond if the court deems this just. The court, as a general rule, will require a bond in respect of an ex parte order unless it
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