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Issue Estoppel by Foreign Judgment in Israeli Law

THE rules relating to the enforcement of foreign judgments in Israel are, for the most part, contained in the Foreign Judgments Enforcement Law 1958.1 On the other hand, the rules as to recognition of a foreign judgment as res judicata are derived from case law based on common law principles.2 As in England, a foreign judgment does not normally operate as a merger of the original cause of action.s Such a judgment does, however, constitute a bar by creating cause of action estoppel in favour of the defendant in subsequent litigation in Israel between the same parties and in respect of the same cause of action.4 Until recently, there was no clear authority in Israel case law on the extent to which a foreign judgment can create an "issue estoppel," i.e. how far an issue finally determined by such a judgment operates as an estoppel in Israeli proceedings between the same parties on a different cause of action. The opportunity to clarify this issue arose recently before the Supreme Court of Israel.5 The Israeli action with which the appeal on that occasion was concerned was preceded by litigation in England which eventually reached the House of Lords.6 The Bristol Myers Company had applied for a patent in respect of an antibiotic substance known as ampicillin trihydrate, and the application was opposed by the Beecham Group Ltd. on grounds of prior publication and prior user. The superintending examiner, on behalf of the Comptroller General of Patents, found that there had been prior publication but no prior user. Both parties thereupon appealed to the Patents Appeal Tribunal, which held that there had been neither prior publication nor prior user.