I’ve blogged before about (1) American courts’ occasional willingness to enforce Sharia law when they enforce foreign law (such as Saudi law) — just as they enforce the law of other countries — and about (2) the general propriety of courts’ enforcing the judgments of Sharia arbitration panels, when the parties had contractually agreed to have a dispute settled through such arbitration.
But I thought it would also be helpful, as a counterpoint, to quote this case I just ran across, which deals with (3) when American courts should decline to hear a case because the proper forum is a foreign country that applies Sharia law. The case, Rhodes v. ITT Sheraton Corp., 9 Mass. L. Rptr. 355 (Mass. Super. Ct. 1999) [UPDATE: Note that the Lexis version of the case is garbled in one important place], is from 10 years ago, but I’ve seen very few references to it, so I expect it will be new to most readers:
Plaintiff is a British citizen and resident of Great Britain. While on summer break from her university in 1994, she visited her parents at their home in Jeddah, Saudi Arabia. On August 23, 1994, she and her sister met two of their friends at the Red Sea Beach Resort, which is part of the Sheraton Jeddah Hotel and Villas (Jeddah Sheraton) [operated and managed by a wholly owned subsidiary of ITT Sheraton]. The resort complex on that date encompassed a beach, a large concrete wharf, a wooden platform or jetty and a lagoon. Coral stretched out from under the jetty and around the edge of the lagoon. Plaintiff struck her head on this coral when she dove into the lagoon from the jetty. She lay in the water, face down and unable to move, until she was pulled out and taken to a nearby hospital.
Plaintiff sustained a high level spinal injury as a result of her dive…. Today, plaintiff … cannot move her left arm or either of her legs and is limited to minimal movement of her right arm…. Plaintiff’s expert estimates that her medical expenses resulting from the accident will exceed ten million dollars.
Under Mass. Gen. Laws. c. 223A, § 5, I may dismiss or stay an action upon finding “that in the interest of substantial justice the action should be heard in another forum.” Massachusetts courts have incorporated into the state forum non conveniens analysis standards and principles enunciated in federal cases discussing the federal common law doctrine…. First, I must consider whether an adequate alternative forum is available. If an adequate alternative forum does exist, I then must determine whether private and public interests strongly favor litigating the claim in that forum….
Defendants cite federal cases granting motions to dismiss on forum non conveniens grounds when the alternative forum was Saudi Arabia. Implicit in these decisions is an acceptance of Saudi Arabia as an adequate alternative forum. None of the cases, however, addressed concerns similar to those raised by plaintiff. See, e.g., Forsythe v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir.1989) (parties previously agreed to bring all disputes before Saudi tribunal and nothing indicated that Saudi forum would treat plaintiff unfairly); Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 801 (7th Cir.1997) (male plaintiff was citizen of Saudi Arabia); Shields v. Mi Ryung Constr. Co., 508 F.Supp. 891, 896 (S.D.N.Y.1981) (plaintiff attempted to “cast aspersions” upon Saudi legal system without any supporting evidence); Tisdale v. Shell Oil Co., 723 F.Supp. 653, 654-655, 659 (M.D.Ala.1987) (in absence of undue influence, unequal bargaining or evidence that Saudi law is inadequate, choice of forum clause requiring that all disputes be referred to Saudi Labor Commission is enforceable); Jeha v. Arabian Am. Oil Co., 751 F.Supp. 122, 125-126 (S.D.Tex.1990), aff’d, 936 F.2d 569 (5th Cir.1991) (plaintiffs offered no evidence that Saudi forum was inadequate). Although my finding regarding the private and public interests in this case renders a final determination as to the adequacy of a Saudi forum unnecessary, I note that plaintiff would face significant procedural disadvantages in Saudi Arabia.
The first significant drawback to trial of this case in Saudi Arabia is that plaintiff would not be permitted to testify. All parties are presumed to be prejudiced in favor of themselves and therefore are not considered to be reliable witnesses. Plaintiff could submit written assertions that would be made part of the record. If a defendant were to deny any assertion made by plaintiff, however, she would be forced to prove that assertion by other means.
Plaintiff’s ability to prove her allegations would also be limited by the fact that Saudi courts give more weight to oral testimony than written testimony. Thus, defendants’ oral testimony that they took certain safety precautions would carry more weight than any documents plaintiff could submit to rebut their testimony. [Footnote: The lack of pretrial discovery procedures in Saudi Arabia would stymie plaintiff’s ability to offer such documents. Although according to defense expert Frank E. Vogel parties may request that the court demand any necessary documents from another party, the court need not exercise its wide discretion in her favor.] Prevailing in Saudi Arabia would be even more difficult for plaintiff in light of the requirement that, “[i]n financial matters, a party must produce two male witnesses or one male and two female witnesses in order to prove a point.”
Another disadvantage to a Saudi forum is that Saudi courts do not follow any uniform rules of procedure. Every party to a case, “sitting and facing the qadi (the judge), conversationally presents its evidence which the qadi hears and weighs.” Id. Cross-examination is limited, if allowed at all. The qadi decides when enough evidence has been heard and at that point announces a decision in open court. Saudi Arabia does not offer parties the opportunity to be heard by a jury.
In addition to no rules of civil procedure, no system of binding judicial precedent or case law exists in Saudi Arabia. Plaintiff would not be able to predict or expect any particular rulings on issues of law that are established in Massachusetts. That this and the other procedural differences would apply equally to the defendants does not minimize that fact that a Saudi forum would deprive plaintiff of basic procedures which she expects to enjoy in a Massachusetts forum.
Finally, the existence of biases against women and non-Muslims in Saudi Arabia would impose additional disadvantages on plaintiff. Defendants’ expert attributes the differential treatment based on gender and religion to “long-standing, well-known provisions in the law.” Although defendants promise to ensure that any recovery by plaintiff in a Saudi court would not be diminished because of her gender and religion, their guarantee cannot insulate plaintiff entirely from the systemic prejudices….
Even if the cumulative effect of the factors discussed above were not enough to deem Saudi Arabia an inadequate alternative forum, dismissal still would be improper if private and public interests weigh in favor of trial in Massachusetts. [The court then explained why it concluded the interests do so weigh; two important reasons were that “this is the corporate defendants’ home forum” and “defendants’ alleged negligence occurred at least in part in Massachusetts.” -EV] …
At this stage, when the parties have not had an opportunity to submit briefs on choice of law, it is unclear what substantive law governs. [Note that the question of which law applies (the choice of law question) is separate from the question of where the case should be tried (the forum question), though one factor in favor of deciding a forum non conveniens motion is indeed a slight preference for the forum the law of which would apply. -EV] Defendants assume that Saudi Arabian tort law is applicable based on Massachusetts choice of law principles. These principles do not clearly point to Saudi law; several factors appear to favor Massachusetts law. Even if Saudi law were to apply, application of a foreign law, while not ideal, need not be a determinative factor in the forum non conveniens analysis.
[Footnotes merged and moved:] Plaintiff … would be disadvantaged if Saudi substantive law were to govern this case …. For example, the better rule of law in a tort case probably would be that of Massachusetts. Saudi tort law is “subsumed under private actions and do[es] not exist as a distinct and highly developed field of law.” Given the theory of liability in this case, it also is significant that Saudi law does not recognize agency within the concept of torts; [the ]general Islamic philosophy is that one is always responsible for one’s own acts[]. Moreover, consequential, indirect, and speculative damages generally are viewed as nonrecoverable through a Saudi court. If she establishes defendants’ liability, plaintiff could only expect to recover actual medical expenses and a fraction of her “diyah,” which is a fixed amount of compensation for personal injury.