בעקבות רע"א 5860/16 פייסבוק נ' בן חמו: תניות ברירת דין בחוזים צרכניים בין-לאומיים והיקף תחולת דיני הגנת הצרכן

The ruling in Facebook v. Ben Hamo marked a revolution in the field of consumer protection and private international law. Since 2015, Israeli Courts have beenapproached by consumers and customers seeking remedies from internationalcompanies for alleged wrongdoings, primarily through class-action lawsuits.Conversely, these companies denied the claims, arguing, among other things, that thechoice-of-law clauses limiting the possibility of suing them should be enforced, allowing lawsuits only under foreign law. After District Courts initially rejected theseclauses, the issue reached the Supreme Court for the first time in the Ben Hamo case. Atthe heart of the discussion were the Terms of Service between Facebook and itscustomers, which stipulated that California law governs the contract. Former Presidentof the Israeli Supreme Court, Esther Hayut, accepted Facebook's argument and ruledfor the first time that the claims should be adjudicated according to the contract'sgoverning law.Since the Ben Hamo precedent was set, international companies have relied on it,seeking to dismiss lawsuits filed against them based on Israeli law. The numerousplaintiffs, both in class actions and individual lawsuits, have yet to meet the burden ofproving a cause of action under foreign law. In a short time, the Ben Hamo precedenthas become a tool for eliminating consumer protection lawsuits. This development hasestablished a new rule in Israeli law, whereby a plaintiff seeking redress from a foreigncompany is required to sue under the foreign law chosen by the company. Moreover,the notion that choice-of-law clauses allow overriding of mandatory provisions inIsraeli law, including provisions of the Consumer Protection Law, has been accepted.However, recently, there have been indications of a jurisprudential shift, and it seemsthat after four years of the Ben Hamo precedent's dominance, the pendulum is swingingback towards a sweeping rejection of choice-of-law clauses and the application ofIsraeli law.This article aims to conduct a comprehensive discussion of the legal branches involvedin the Ben Hamo case – the laws of standard form contracts, class action laws, andprimarily private international law, which is conspicuously absent from the Ben Hamodecision. The article will point out the flaws in current Israeli law, which puts the cartbefore the horse by examining the choice of law through the disadvantageous test in theIsraeli Standard Form Contracts Law. As will be demonstrated, this examinationdiverts the Courts from the relevant considerations for determining the applicable law,leading to a flawed definition of the scope of Israeli consumer protection laws and asignificant increase in litigation costs. Instead, This article proposes establishing rules,inspired by existing rules in the European Union, for determining the applicable law.These rules will shape the necessary legal framework to decide whether to apply thelaw of the consumer's place of residence or the foreign law stated in the choice-of-lawclause