ISRAEL Law and Practice Contributed by: Talya Solomon, Iris Achmon, Ekaterina Yaremchuk and Niva Orion, Herzog Fox & Neeman
Requirement of tort lawsuit – a tort lawsuit requires demonstration of: • a breach of the law; • harm; and • causal connection between them. In addition to a private claim, where a number of conditions are met, it is possible to submit a class action. The conditions are as follows: • the lawsuit raises substantial questions of fact or law that are common to the class, and there is a reasonable likelihood that it would be ruled in favour of the class; • a class action is the efficient and appropri - ate means of resolving the dispute under the circumstances; • a reasonable basis exists to assume that the interests of all members of the class will be properly represented and managed; and • a reasonable basis exists to assume that the interests of all members of the class will be represented and managed in good faith by the representative plaintiff. 1.4 “Cartel Conduct” The ECL neither directly defines “cartel conduct” nor sets a specific prohibition for cartel conduct. Rather, cartel conduct is treated as a specific case within the broader definition of “restrictive arrangements” . Section 2 of the ECL sets forth the definition of “restrictive arrangements” . Subsection (a) states that “a restrictive arrange- ment is an arrangement made between persons conducting business, under which at least one of the parties restricts itself in a manner which may prevent or reduce business competition between it and the other parties to the arrangement, or some of them or between it and a person who is not a party to the arrangement” .
There are four cumulative elements to a restric - tive arrangement under Section 2 (a) of the Com - petition Law: • an arrangement; • between persons who operate businesses; • a restriction; and • the likelihood of competition being under - mined ( “the likelihood test” ). Subsection (b) states that without derogating from the generality of the provisions in subsec - tion (a), an arrangement in which the restriction concerns one of the following matters shall be classified as a restrictive arrangement: • the price which shall be demanded, offered or paid; • the profit which shall be produced; • division of all or part of the market, according to the place of business or according to the persons or type of persons whom they shall deal with; and • the quantity, quality or type of assets or ser - vices in the business. Israeli courts have interpreted this as creating an irrefutable presumption that the arrangement is restrictive and that there is no need to prove the likelihood test. It is, therefore, sufficient to prove the first three elements. Thus, practices like price fixing, limiting quantities, market shar - ing, boycotting and bid rigging are deemed as restrictive arrangements. In addition, those prac - tices cannot enjoy block exemptions, as elabo - rated below. Some restrictive arrangements may be lawful: according to Section 4 of the ECL, being a party to restrictive arrangements, as defined under Section 2, is prohibited unless the arrangement is covered by a statutory exemption (within the
162 CHAMBERS.COM
Powered by FlippingBook