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Halpern V. Halpern Notes

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HALPERN V. HALPERN FACTS The claimants are the son (Israel) and grandson (Samuel) of the late Rabbi Joseph Halpern and his wife Frieda, also deceased. Their claim was to enforce a compromise alleged to have been reached between Israel and Samuel who at all material times acted for his father Israel with the defendants (four other sons and a daughter of Joseph and Frieda). The compromise was of an arbitration before a Beth Din composed of three rabbis which in the main was taking place in Zurich. The arbitration had been intended to settle issues, which had arisen after the deaths of Joseph and Frieda, between Israel (the first claimant) and his siblings relating to what he perceived to be his due inheritance. The first three defendants (Mordecai, David and Jacob) were the executors of both estates, but the dispute was not simply about the distribution of the estates (valued for probate, as we were shown but the judge was not, in the case of Joseph at PS309,945 and in the case of Frieda at
PS210,000), but as to whether there were not other assets which should be brought by the defendants into account in considering what should be Israel's fair share. The question before the court was as to the law applicable to this compromise arrangement. HOLDING Can there be a choice of "Jewish law"?
First I do not accept Mr Berkley's submission that the Rome Convention does not apply because the dispute as to which law applies relates to a law other than one of a country. That argument would be hopeless in my view, even if the choice was simply between Jewish law and English law, for the reasons I shall express below but in fact the contest in this case is between English law, Swiss law and Jewish law---in other words the situation does involve a choice between the laws of different countries. But the fundamental reason why the argument is hopeless is because the starting point for the Rome Convention was a point accepted by all countries party to that convention, that laws could not exist in a vacuum; by "laws" were meant laws enforceable in the courts of countries whether parties to the Convention or other states. Dicey & Morris, The Conflict of Laws, 14th ed (2006), vol 2, para 32-081 puts the matter succinctly and in my view correctly: "General principles of law. Stabilisation clauses. Article 1(1) of the Rome Convention makes it clear that the reference to the parties' choice of 'the law' to govern a contract is a reference to the law of a country. It does not sanction the choice or application of a non-national

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