The Choice of Law: Halpern v Halpern and Anor

In the case of Halpen v Halpen and Anor [2007], EWCA Civ 291 is an appeal against a previously rendered judgment. The plaintiffs, the son (Israel) and the grandson (Samuel) of the deceased Rabbi Joseph Halpern and his late wife Frieda asserted their claim to enforce a purported compromise agreement allegedly reached between Israel, Samuel, and the defendants. The defendants, consisting of four other sons and one daughter of Joseph and Frieda, agreed to undergo arbitration proceedings in Zurich to resolve disputes that arose after the passing of Joseph and Frieda. These disputes revolved around whether additional assets, not accounted for by the defendants, should be considered in determining what constitutes a fair distribution of assets for Israel.

It is the position of the defendants that regardless of the nature of the inheritance disputes delineated in the Particulars of Claim, they are exclusively within the jurisdiction of the Probate Registry of the High Court of Justice. Subject to the various matters subsequently pleaded, these Defendants argue that this claim is unsustainable and contradicts public policy. In essence, it appears to seek to divest the High Court of its authority to adjudicate upon the rights of the beneficiaries of the Estate of the Deceased and Frieda Halpern.

Therefore, in addition to the issues raised herein, which transgress established principles of fairness and natural justice, it is further asserted that the Compromise Agreement is void under Halakha. These Defendants intend to petition the Court for permission to present expert evidence and to furnish additional particulars regarding the violations of Halakha that pertain to the matters at hand in this claim.

Only in his written arguments submitted before the hearing by Justice Christopher Clarke presided over, Mr. Berkley explicitly asserted that Jewish Law constituted the governing law of the compromise agreement. However, this submission did not precisely delineate the implications of applying Jewish Law in contrast to English Law or, potentially, Swiss Law. During the argument, Mr. Berkley hinted that applying Jewish law could yield distinct outcomes. For instance, emphasis was placed on a statement by Rabbi Gartner, annexed to Mordecai's statement, notably a footnote in that statement indicating that under Jewish Law, if duress or mistake were proven, it would render the compromise void ab initio, as opposed to English law, where it would be considered voidable.

Subsequently, we were informed that the judge referenced the case of Shamil Bank of Bahrain EC v Beximco Pharmaceuticals, a decision of the Court of Appeal. The judge's remarks suggested, at the very least, a level of uncertainty regarding whether Jewish Law, in contrast to the law of a sovereign state, could ever be formally adopted, expressly or implicitly, as the governing law of a contract.

This led to the submission of extensive written arguments after the hearing, addressing whether, under English conflict of laws principles, Jewish Law could, by mutual agreement, serve as the governing law of a contract. The legal considerations in this case raise several crucial questions:

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1. Following English conflict of laws principles, can the parties designate Jewish law as the governing law of the compromise agreement?
2. Did the parties explicitly specify Jewish Law as the governing law of the compromise?
3. If the parties did not expressly designate Jewish Law, can it be inferred that they chose it by necessary implication?
4. If the parties chose Jewish Law, and the response to a question (1) is that English conflict of laws does not permit the selection of Jewish Law as the governing law, are there alternative mechanisms through which the parties' choice can be effected?

These questions are essential in resolving the matter, particularly concerning the choice of law governing the compromise agreement and its implications within the context of English conflict of laws principles.

Thank you for your attention.

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