Saudi, Sharia Laws Applied in US Courts
Particularly in light of the fooforaw following the Archbishop of Canterbury’s statement about the inevitability of Sharia law in the UK, this piece from The Volokh Conspiracy on the application of Saudi Sharia law in Texas and Minnesota is interesting, to say the least!
The issue is not actually whether Saudi law applies in Texas (or other states as the article notes), but whether people can, in the course of making contracts, require that Sharia law be applied as the rule for arbitration. It’s a bit complicated, but the courts’ decisions are worth reading. And certainly read the entirety of the Volokh post. The comments, particularly about how Jewish laws can be enforced through arbitration in US courts are also worth while.
Read all about this (and Osama is even involved). But wait, it’s also in Minnesota. And in New Jersey (Nat’l Group for Communications & Computers Ltd. v. Lucent Technologies Int’l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).
Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment “based upon this Court’s review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court’s understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia.”
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Cross posted at Crossroads Arabia
but whether people can, in the course of making contracts, require that Sharia law be applied as the rule for arbitration
Of course they can. People can contract to damn near anything, barring the high bar of “unconscionability.”
I suppose that unconscionability would address a common objection to freedom of contract, the man who sells himself into slavery. Also, contracts to perform illegal acts are void so is Sharia law (of which I know N-O-T-H-I-N-G) required a similarly crazy result, the agreement would be void to that extent.
IIRC, Orthodox Jews sometimes contract to have a panel of 3 rabbis resolve any dispute according to Talmudic law. What’s the difference, besides spoooooooky Muslims?
(“Barring the high bar.” Lovely. That preview button is not supposed to be a meaningless formality, I see.)
Unless there was fraud or coercion in the contract or the terms of the arbitration resolution would themselves be illegal (think trial by combat with a fight to the death), then I see no reason not to let the people pick what terms they want the arbitration to take.
There are a lot of arbitration cases that are heard today. They don’t correspond to the full US legal system rules. We accept that without a blink of an eye. If one of those arbiters just smiled and mentally applied sharia law, no one would ever know.
Now personally, I don’t know enough about sharia law to fell comfortable signing such an arbitration agreement.
Yetanotherjohn,
You don’t have to sign, you just click the “I accept all terms and conditions” box on some random website, not noticing the Sharia choice of law clause buried in the middle. ;-( Accept it man, your head is coming off as soon as those guys can get you into court
There’s been a lot of Islamophobic mouthbreathing over the Archbishop’s comment – but all he actually said (see the BBC’s original story) was that Muslims should have the same option to choose a private court (using Sharia Law) for civil disputes as Jewish Brits do. The biggest Talmudic Court is in London, but there are others – they adjudicate on divorces, business and personal differences where both parties agree to using the Beth Din Court rather than the normal civil court system.
So why the outcry over a reasonable call for parity? Is Islamophobia the new anti-Semitism for the extreme Right?
Regards, C
you just click the “I accept all terms and conditions” box on some random website
Sort of. In common law countries, contracts require a “meeting of minds” — the agreement is what the signatories intended to agree to, not necessarily the words on the page (although the words on the page are taken as strong evidence of what they intended to agree to).
The less understanding and agreement one of the signatories has, the less enforcable the contract. If the parties to the agreement have sat around a table with lawyers and negotiated ever clause of the contract, the courts will almost certainly uphold it (unless it’s invalid for other reasons, such as it being a contract to engage in illegal activites). But courts have also refused to enforce licenses that take the form of fine print on a web page saying “by using our site, you agree to our terms and conditions”, which is why most sites with terms and conditions they want to enforce now require you to check a box or click a button saying “I Agree”. I think these agreements are yet to be tested in court, but I suspect that courts would be sympathetic to the argument that you didn’t expect the Sharia Inquisition and that if you’d known it was there you wouldn’t have used the site.
IANAL, but I did stay at a Holiday Inn Express last night.
The extent to which “click-through contracts” are enforceable is indeed being tested in courts across the country. California courts — cynics say they are recognizing which side their own bread is buttered on, given that California is home to many software and technology companies — are upholding many of them, provided that the user has a reasonable opportunity to access the terms before he’s signifying his assent to them. Some courts elsewhere have been more skeptical.
Whether a court would enforce a contract that incorporates Sharia or some other variety of the law is really a different question, however, and it’s answered by a completely different set of legal principles.
Most courts will enforce choice of law provisions if there is a “reasonable relationship” between the law chosen and surrounding circumstances. Thus, for example, if one of the contracting parties is headquartered in Saudia Arabia, that may be enough of a relationship to justify a Texas court in enforcing a contract term requiring the application of Sharia law as used in the Saudi court system, even if the other party to the contract is based in Texas and the contract was mostly performed there, and even in circumstances in which without such a choice of law provision (i.e., in which the parties’ contract contained no specification one way or another), the same court might have chosen to apply Texas law.
“Conflicts of laws” — deciding which forum’s substantive law will be used to decide a given dispute — is a complicated subject to which most law schools devote an entire course. If one were to try to boil it down into a sentence, though, it would be this: “Courts will try to do what seems most reasonable, including giving reasonable deference to enforcing the parties’ own freely made choices.”