For thousands of years, Jews have utilized a form of alternative dispute resolution called Batei Din (translated as "houses of judgment"), which apply Jewish law (halacha) in adjudicating legal disputes.1 Today, Batei Din continue to serve this function all over the world,2 and in many cases, their rulings are enforceable in secular courts.3 For example, in the U.S., Batei Din are considered a form of arbitration that is permitted under the Federal Arbitration Act (FAA).4
While Batei Din have complete authority over matters that are undoubtedly religious in nature, such as Jewish marriage, divorce, and kosher certification, they are also used to settle civil disputes, including business and contractual disagreements, and even occasionally disputes concerning intellectual property. In fact, many in the orthodox Jewish community continue to turn to a Beit Din6 (the singular of Batei Din) as the go-to method for dispute resolution because Jewish law prohibits Jews to use the secular court system for civil disputes without first trying to dispose of the matter in a Beit Din.7
With that said, even though Batei Din are most often utilized by Jews, and it would be highly unusual for two non-Jewish parties to choose a Beit Din, one does not have to be Jewish to use a Beit Din or to be summoned to a Beit Din.8 There can be several advantages to using a Beit Din as a method of arbitration as compared to civil litigation for IP cases.
Advantages and disadvantages of using a Beit Din
The primary advantages of using Batei Din are their speed and inexpensive nature relative to civil litigation.9 Typically, an arbitration case heard by a panel of three Beit Din arbitrators costs $360 per hour, while cases heard by a single arbitrator costs $180 per hour.10 Additionally, the Beit Din strives to give parties a decision within three months of a hearing.11
Like other arbitration forums, there are no juries in a Beit Din.12
While lawyers may participate, they are not required, and it is common for parties to a Beit Din to represent themselves pro se.
Batei Din have flexibility in their judgments and may grant any remedy or relief that they deem equitable.14 For instance, they can grant specific performance of a contract, injunctive relief, attorney's fees, expenses, interim or partial orders, and awards.15
While this flexibility can be an advantage, it can also be a disadvantage because outcomes from a Beit Din can be unpredictable.16 Unlike in U.S. courts, the results of Beit Din cases are rarely published. There is therefore very little case law to refer to in anticipating how a case will be decided.17 Adding to this unpredictability is the fact that Batei Din apply Jewish law rather than American law18 and do so in a way that welcomes compromise instead of a strict application of the rule.19 Unlike American law, which often stems from statutes or cases with clear holdings, Jewish law stems from numerous sources,20 including the Bible, Talmud, commentaries, codices, and responsas (letters from rabbis answering legal questions posed by individuals and communities). Beit Din arbitrators need to consider and weigh these various and sometimes conflicting sources when answering legal questions and making rulings. Additionally, Jewish sources can be hundreds or thousands of years old. Considering new fact patterns often involves creatively applying legal concepts from ancient times to modern day scenarios.
As a result of this approach, determinations of Batei Din tend to be incredibly fact specific, and the results can differ from those in a civil court. Depending on a party's chances of succeeding in civil court, having the potential for different outcomes can be an advantage or disadvantage.
The use of Batei Din in intellectual property cases
Intellectual property is generally thought of as its own distinct area of law that contains protections primarily for trademarks, copyrights, and patents. Policy wise, trademarks are often said to protect consumers from source confusion, whereas copyrights and patents are meant to incentivize innovation by granting limited monopolies to authors and inventors.
Under Jewish law, however, most IP cases tend to be decided under a broad concept called hasagat gvul21 (literally "infringement of boundary"), which deals with the law of unfair competition.22
The law of hasagat gvul refers to the biblical prohibition against physical trespass, or specifically, the moving of boundary stones or other landmarks from another individual's adjoining area of land for the purpose of annexing a portion of the land.23 While this law was initially applied narrowly to instances of physical trespass to land in Israel, in the Talmudic era (3rd - 6th centuries) the rabbis broadened this concept to apply to trespassing on another's economic and commercial rights as well.
A passage in the Talmud24 referencing hasagat gvul discusses an individual who wishes to open up a business in close proximity to an existing business.25 One rabbi, Rav Huna, asserts that the owner of the first business may prevent the newcomer from opening a shop because the newcomer will interfere with the first's livelihood and take his customers. Another rabbi, Rav Huna, the son of Rav Yehoshua (a different Rav Huna), disagrees and argues that a newcomer is free to open his business since customers have the right to choose whom to patronize.26 The Talmud considers whether it matters if the newcomer is from a different neighborhood or the same neighborhood as the existing business. In the end, the latter Rav Huna's opinion was considered to be the holding, so new entrants were usually allowed to enter depending on the exact type of business they were operating and the types of businesses that already existed in the neighbor-hood.27
Over time, rabbinic authorities continued to discuss and flesh out the issue. For example, many centuries later, one of the most preeminent rabbis since World War II, Rabbi Moshe Feinstein, explained that if the new entrant does more than just lower the initial owner's profits, but impacts his ability to earn a livelihood and lowers his standard of living, that is the point in which the new entrant should be enjoined.28 Feinstein compares it to a story in the Talmud of a fisherman that places his net too close to the net of another fisherman and steals all the fish in the sea, leaving the first fishless.29
Today Batei Din consider all the previously mentioned sources, but tend to apply Rabbi Feinstein's understanding. However, making a legal determination is still a very fact-specific inquiry. For instance, if a kosher pizza store in a small neighborhood were to open on the same block as the only other kosher pizza store in town, this very well might drive the first out of business and violate the rule. However, in a city like New York, where there are many kosherkeeping individuals and many kosher restaurants, it would not. If the new entrant sold pasta and salad in addition to pizza, or if the new entrant's prices were more or less expensive than the first, it might also alter the analysis because the entities might not be seen as direct competitors.30
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Footnotes
1. Ginnine Fried, The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular Courts, 31 FORDHAM URB. L.J. 633, 634 (2004).
2. See e.g., International Directory of Rabbinical Courts, KOSHER DELIGHT: YOUR JEWISH ONLINE MAGAZINE, https://kosherdelight.com/International_Directory_of_Rabbinical_Courts.shtml (last visited Jan. 20, 2022) (listing Batei Din around the world).
3. See Fried, supra note 1.
4. 9 U.S.C. §§ 1-16 (2012); See also Michael J. Broyde, Ira Bedzow, Shlomo C. Pill, The Pillars of Successful Religious Arbitration: Models for American Islamic Arbitration Based on the Beth Din of America and Muslim Arbitration Tribunal Experience, 30 HARV. J. RACIAL & ETHNIC JUST. 33, 41 (2014) (discussing some practices that the Beit Din of America implemented in order to comply with the FAA, such as developing and publishing formal rules of procedure and creating an internal appellate procedure).
5. Din Torah (Arbitration Services), BETH DIN OF AMERICA, https://bethdin.org/dintorah/ (last visited Jan. 20, 2022).
6. Also known as "Bet Din," "Beis Din," and "Beth Din".
7. Chaim Jachter, Beit Din, The Prohibition Against Using Civil Courts, GRAY MATTER II 169-178 (2019).
8. See Fried, supra note 1, at 640; See also 133 AM. JUR. TRIALS 379 § 13 (2014) (explaining that some Jewish organizations, such as synagogues, use arbitration clauses that mandate use of alternative dispute resolution through a Beit Din in their employment contract. These contracts can apply to non- Jewish employees as well.)
9. Fried, supra note 1, at 640.
10. BETH DIN OF AMERICA, Supra note 5.
11. Beth Din of America Rules and Procedures, § 26(a), https://bethdin.org/wp-content/uploads/2019/08/RulesandProcedures.pdf. ("The Beth Din shall make its award promptly and shall strive to issue every award not later than three months after the date on which the proceedings are closed").
12. 133 AM. JUR. TRIALS 379 § 33 (2014).
13. Beth Din of America Rules and Procedures, supra note 11, at § 12(a)-(b) ("(a) Any party shall have the right to be represented by an attorney who must be licensed to practice law in any jurisdiction in the United States and may claim such right at any time as to any part of the arbitration that has not taken place. If a party is represented by an attorney, all papers served on such party shall be served on such attorney. (b) A party that does not attend the proceedings with an attorney shall be deemed to have waived his right to counsel for that proceeding").
14. Id. at § 28.
15. Id.
16. Layman's Guide to Dinei Torah (Beit Din Arbitration Proceedings), http://s589827416.onlinehome.us/wp-content/uploads/2015/07/LaymansGuide.pdf. ("[Question:] Are the Judges bound by precedent? [Answer:] Not really, at least not in the sense that secular courts are bound by their precedents. The judges in a din torah apply their understanding of Jewish law, and not all judges understand the law in the same manner. However, the body of Jewish law is very extensive, so many questions do have a clear resolution that the judges can be expected to follow").
17. See Yair Rosenberg, Bet Din of America Goes Public, Tablet Magazine, (June 26, 2014) https://www.tabletmag.com/sections/news/articles/beth-din-of-america-goes-public (discussing the Beit Din's historic practice of keeping decisions private and a recent decision of the Beit Din to release a few cases per year, per the parties' agreement, in the hopes of increasing transparency and making the Beit Din more accessible).
18. Beth Din of America Rules and Procedures, supra note 11, at § 3 ("The Beth Din of America accepts that Jewish law as understood by the Beth Din will provide the rules of decision and rules of procedure that govern the functioning of the Beth Din or any of its panels."); But see Layman's Guide to Dinei Torah, supra note 16 (explaining that there is a principle in Jewish law called "dina d'malchusa dina," which literally translates as "the law of the government is the law" and refers to the proposition that Jews are required to observe the law of land to whatever extent possible under Jewish law. As such, arbitrators on a Beit Din try to ensure that their rulings are consistent with American law when possible.)
19. See Beth Din of America Rules and Procedures, supra note 11, at § 3 (explaining that the default is for the Beit Din to apply a concept called Pshara Krova l'din- which means "a compromise or settlement related to Jewish principles." Using pshara Krova l'din, the arbitrators must make a ruling that does not deviate from the outcome under the law while considering a compromise based on the equities of the case. However, the parties can elect instead that the case be ruled under a principle of din - purely deciding based on Jewish law or alternatively under a principle of pshara- using compromise in a way that is less limited by the technicalities of Jewish Law).
20. See Wikipedia, Halakha, https://en.wikipedia.org/wiki/Halakha (describing the many sources of Jewish law) (last visited Jan. 20, 2022).
21. aka. hasagas gvul or hasagat gevul
22. Rabbi Chaim Jachter, Hasagat Gevul: Economic Competition in Jewish Law, JEWISH LAW ARTICLES, http://www.jlaw.com/Articles/hasagatgevul.html (last visited Jan. 20, 2022).
23. Deuteronomy 19:14, Jewish Publication Society Translation, 1917, https://www.mechon-mamre.org/p/pt/pt0519.htm (last visited Jan. 20, 2022) ("Thou shalt not remove thy neighbour's landmark, which they of old time have set, in thine inheritance which thou shalt inherit, in the land that the LORD thy God giveth thee to possess it").
24. See Wikipedia, Talmud, https://en.wikipedia.org/wiki/Talmud (last visited Jan. 20, 2022) (The Talmud refers to a written compendium of Oral Law that contains texts written c. 200 CE-500 CE. It is considered to be the central text of rabbinic Judaism and a primary source of Jewish Law.)
25. Bava Batra 21b:4-11 (Translation from The William Davidson digital edition of the Koren Noé Talmud, https://www.sefaria.org/Bava_Batra.21b.4?lang=bi) (last visited Jan. 20, 2022) ("Rav Huna said: There was a certain resident of an alleyway who set up a mill in the alleyway and earned his living grinding grain for people. And subsequently another resident of the alleyway came and wished to set up a mill next to his. The halakha (Jewish law) is that the first one may prevent him from doing so if he wishes, as he can say to him: You are disrupting my livelihood by taking my customers. ")
26. Id.
27. See Shulchan Aruch: Choshen Mishpat 156:5, https://www.sefaria.org/Shulchan_Arukh%2C_Choshen_Mishpat.156.5?lang=bi&with=all&lang2=en (last visited Jan. 20, 2022) ("The residents of an alleyway can force one another not to set up among themselves, [a shop of] a tailor, a tanner or any other of the types of craftsmen. If there was one of the residents of the alleyway who was [already working as] a craftsman and they did not protest against him or if there was [already] a bathhouse or a shop or a mill, and someone comes and makes another bathhouse next to him, [the owner of the first cannot] prevent him, saying, "You are cutting off my livelihood." Even if [the owner of the second] is from another alleyway, they cannot be prevented, since that type of craft is already in their midst.")
28. Responsas of Igrot Moshe, Chosen Mishpat 1:38.
29. Bava Batra 21b, supra note 25.
30. See also Delicious Foods vs. Good Chocolates (May 21,2005), http://s589827416.onlinehome.us/wp-content/uploads/2015/07/Decision2.pdf (An example case featured on the Beit Din of America website which discusses a chocolate store opening up across the street from another and concluding that an injunction was not warranted).
Originally published by The Trademark Lawyer - page 54.
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