ISRAEL Law and Practice Contributed by: Talya Solomon, Iris Achmon, Ekaterina Yaremchuk and Niva Orion, Herzog Fox & Neeman
categories that may justify service outside the jurisdiction, such as a contract made in Israel, breached in Israel, or governed by Israeli law. The burden of proof in this regard is minimal. • The complaint is with respect to conduct within the territory of Israel. • Rule 166 (5) – the complaint is with respect to damage caused to the plaintiff in Israel from a product, service or conduct of the defendant, as long as: (a) the defendant could have expected that damage would be suffered in Israel; and (b) the defendant, or someone related to it, deals with international trade or provides international services in a significant scope. In addition, it should be demonstrated that the Israeli court is the forum conveniens to hear the action. Case law has established three main tests for examining the suitability of the forum: • the test of the majority of contacts and the question of the suitability of the forum; • the test of the parties’ reasonable expecta - tions; and • public considerations, primarily which forum has a real interest in hearing the action. 1.7 Principles of Comity The principle of comity did not play a significant role in previous antitrust cases (in both ICAs and private cases). Considering the increase in litiga - tion of international cartels in Israel, it is plausible that the comity principle will evolve in the future. 1.8 Enforcement Priorities Most cartel enforcement cases involve domestic bid-rigging restrictive arrangements, but price fixing, market sharing and other cases also occur. The ICA makes a proactive effort to teach
Israeli state agencies to identify bid rigging in government tenders. 1.9 Guides Published by Governmental Authorities The ICA does not have specific guidance regard - ing Cartel conduct and behaviour. However, cer - tain public statements refer to different aspects of cartel enforcement, such as the following. • Public statement 1/12 – this public statement details the ICA′s considerations for navigation of different procedures between criminal and administrative procedure (see 1.2 Regulatory/ Enforcement Agencies and Penalties ). • Public statement 1/16 – considerations of the Competition Commissioner in Determin - ing the Amount of a Monetary Sanction. This public statement outlines in detail the method of calculating administrative fines. It stems from both of these public statements that the default enforcement procedure for cartel behaviour is the criminal route. In the rare cases where administrative fines might theoretically be imposed for cartel behaviour, such fines shall be on the higher side to reflect the severity of the offence.
2. Early Stages of Cartel Enforcement 2.1 Initial Investigation
Even in the initial inquiry stages, the ICA has significant investigative means that include the following. • An investigation by the ICA usually starts with a covert investigation, which often includes wiretapping.
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