International In-house Counsel Journal Vol.12, No. 47, Spring 2019, 1 Checkmate, Forum-Shoppers: How Uniform Rules of Procedure Can End The Beit Din Selection Stalemate BEN TURIN General Counsel and Director of Public Affairs, Oorah, Inc. and Kars 4 Kids Inc., USA And YOSEF S. STEIN Legal Assistant, Oorah, Inc. and Kars 4 Kids Inc., USA Jewish Law dispute resolution practice is built upon rabbinic traditions first described in the Mishnah – a compendium of religious and civil black letter law compiled at approximately 200 CE – and its voluminous commentary.1 Parties seeking to resolve disputes under Jewish law submit to the jurisdiction of a three-person panel tasked with mediating, arbitrating and adjudicating disputes in consonance with procedural and substantive Jewish Law.2 These panels typically operate under the auspices of institutions known as Batei Din, literally “houses of law,” or, singularly, as a Beit Din3, literally a “house of law.” Since Jewish Law has no contemporary state authority,4 even in the State of Israel,5 the decision to engage in a Beit Din dispute resolution process is wholly voluntary and We thank Binyamin Turin (Georgetown University Law Center class of 2019) for providing invaluable research support. 1 The Mishnah, initially a compilation of laws and theological principles passed down orally from each generation to the next (the “Oral Law”), serves as an extension of, and elaboration upon, the terse black letter law set forth in the Torah (Five Books of Moses). Concerned that the Oral Law tradition was destined to be forgotten if not transcribed into written form, Judah ha-Nasi, also known as Judah I, codified the written Mishnah in Israel sometime around the turn of the third century. (Oren Gross, Venerate, Amend … and Violate, 46 Ariz. St. L.J. 1182 (2014).) Subsequently, the Babylonian Talmud (whose authority is generally considered to supersede that of the slightly older Jerusalem Talmud), an encapsulation of the Rabbinic commentary that ensued approximately over the three centuries following the transcription of the Mishnah, was compiled and edited by Rav Ashi and Ravina II, who lived during the fourth and fifth centuries. (Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs (1886-1941), 29 Touro Law Review 340 (2013).) The Talmudists’ views were later discussed and debated by the Rishonim (who included such philosophical and theological luminaries as Maimonides, Rashi, Nahmanides and the Tosafists) from the eleventh century to the fifteenth century. The philosophies and codes of Jewish Law continue to be studied and deliberated in the academies of the contemporary Achronim period, which has lasted from about the sixteenth century to the present. See Isaac Roszler, Law as a Prism into National Identity: The Case of Mishpat Ivri, 38 U. Pa. J. Int’l L. 729 (2017). 2 In modern practice, Batei Din will generally seek to mediate disputes and help the parties arrive at mutually-agreed settlements. Unlike in common secular law practice, the Beit Din panel will often directly engage in the mediation process and not seek to appoint an outside mediator. (For instance, the Beth Din of America, one of the more prominent Batei Din in the United States, refers to itself as “a full service mediation and arbitration organization” on its website, https://bethdin.org/dintorah/.) If efforts at mediation fail, the Beit Din panel will instead issue a legal ruling in accordance with Jewish Law. Nonetheless, Beit Din proceedings almost always entail some element of compromise (see note 22 and accompanying text). See also Bet Din and Judges, Encyclopedia Judaica (2 ed. 2007), discussing the role of the Beit Din from antiquity to the modern age. 3 Alternative common English transliterations include “Bet Din,” “Beth Din,” and “Beis Din,” with “Batei Din” being the plural form. 4 For an in-depth discussion of the nature and extent of Jewish Law application in historical times, see Menachem Elon, Jewish Law: History, Sources, Principles (1994). See also Marcus Jastrow & Louis Ginzberg, BET DIN, The Jewish Encyclopedia (1906). See also Bet Din and Judges, Encyclopedia Judaica, supra. 5 While present-day Israeli law has developed primarily based upon the legal systems of Britain and other common law jurisdictions, there is a decades-old movement to incorporate elements of Jewish Law into the law of the modern State of Israel. This proposed integration of Jewish Law into contemporary Israeli law is known as Mishpat Ivri (“Hebrew Law”). International In-house Counsel Journal ISSN 1754-0607 print/ISSN 1754-0607 online 2 Ben Turin and Yosef S. Stein necessarily governed by the laws of the territory in which the Beit Din functions. For example, in the United States, dozens of Batei Din presently operate to accommodate disputants who seek to resolve their disputes under Jewish Law.6 Under contemporary law,7 there are generally two ways in which a claim may be brought before a Beit Din panel. Beit Din jurisdiction attaches where the parties in dispute have previously agreed to arbitrate before Beit Din in a pre-existing contract between the parties, typically in the form of a mandatory binding arbitration clause stipulating that any disputes shall be adjudicated by a Beit Din panel. Alternatively, the parties may both agree in writing to engage a Beit Din to resolve an existing dispute. Procedurally, a Beit Din hearing shares much in common with other forms of arbitration or judicial proceedings.8 Notwithstanding such similarities, there are significant structural challenges with the current state of Beit Din practice across the world. For the most part, the hundreds of Batei Din currently operating internationally are independent and do not share uniform rules of procedure. The lack of uniformity between the proceedings of different Batei Din is one of the root causes of procedural inefficiencies and inequities in the Beit Din adjudication process. Specifically, the lack of universally accepted procedural rules has created an environment that rewards opportunistic behavior and penalizes litigants who are legitimate good-faith participants in the Beit Din process. This paper seeks to highlight a number of the procedural inconsistencies and inefficiencies in the contemporary Beit Din framework9 and proposes a path towards the establishment of a more uniform procedural landscape through the adoption of uniform Beit Din procedural rules. The paper begins with a recent case study in which carefully-drafted dispute resolution provisions were ineffective at preventing a protracted and inefficient procedural dispute between disputing parties. The paper seeks to identify procedural inefficiencies and interstices which would be improved by the adoption of uniform Beit Din procedural standards. In closing, the paper proposes a two-stage approach for the development and adoption of uniform Beit Din rules of civil procedure. This paper proposes the development of model uniform procedural rules for Beit Din adjudication, which could be elected into by parties either at the drafting phase of commercial agreements or once a dispute has arisen. Following a comment period, the proposed uniform rules would be promulgated as stand-alone dispute resolution rules, as well as in the form of model Annexes that could be appended to existing rules of alternative dispute resolution (ADR) procedure being referenced in contractual agreements, such as the rules of the International Chamber of Commerce (ICC) or the American Arbitration See Steven F. Friedell, Some Observations About Jewish Law in Israel’s Supreme Court, 8 Wash. U. Global Stud. L. Rev. 659 (2009). 6 A non-exhaustive list of US Batei Din compiled by the Boston Agunah Task Force lists at least one Beit Din panel in each of 44 distinct US states (available at http://www.getyourget.com/beit-din-listings). It should be noted that Batei Din’s areas of expertise vary, and not all Batei Din necessarily adjudicate commercial matters. 7 See, e.g., United States of America Federal Arbitration Act (FAA), 9 U.S.C. § 2. 8 The plaintiff presents her claim, the defendant is given an opportunity to respond, the judges ask pertinent questions of both parties, evidence is presented, and witnesses may be brought to corroborate and/or contradict the positions of the respective litigants. Toanim, or rabbinic advocates, are often hired to help bolster the arguments of the respective parties. After a litigant has stated her position, her advocate may advance Jewish Law sources in favor of such position. Once the Beit Din panelists feel confident in their understanding of all relevant facts and viewpoints, they will confer amongst themselves before mediating a settlement or rendering an arbitration ruling, depending on the circumstances and based upon applicable Jewish laws. 9 Specific inefficiencies discussed in this paper include: (1) Lack of procedural rules regarding language of communication, see note 13 and accompanying text; (2) Inconsistent service requirements, see note 14 and accompanying text; (3) Inconsistent rules regarding the availability to remove to secular court, see note 18 and accompanying text; (4) Inconsistent rules with respect to availability of removal to a different Beit Din panel, see note 21 and accompanying text; (5) Requirement to enter into a supplemental arbitration agreement, see note 22 and accompanying text; and (6) Sanctions available to and in use by a given Beit Din for a party’s non-compliance with the directive of the Beit Din, see note 24 and accompanying text. Forum Shopping 3 Association (AAA). It is hoped that the proposed uniform rules will gain acceptance amongst drafting parties over the next few years. If this initiative is successful, it is further proposed that ultimately, these uniform Beit Din rules of procedure would be adopted by the various independent Batei Din and that a confederation of Batei Din might be formed. This Beit Din association would link together many disparate Batei Din, thereby generating increased uniformity and predictability in the Beit Din process.