“Different From the Law of the State of Alabama Is Foreign Law”

A funny locution in a proposed Alabama constitutional amendment, which will be on the November 2014 ballot.

Substantively, the proposed amendment, which deals with the use of foreign law in Alabama courts, is apparently fairly narrow, because it mostly just says that foreign law can’t be used in ways that violate state law or rights under the Alabama Constitution or the U.S. Constitution; foreign law already can’t be used in those ways. Of course, if the provision is interpreted to mean that foreign law can’t be used, for instance by arbitrators or by foreign courts pursuant to choice-of-venue provisions in contracts, in ways that would have violated American constitutional rights if they had been done by an American court, then the amendment would be broader, and potentially very broad. For example, arbitration and foreign litigation inherently involves proceedings without a civil jury, though such a right to civil jury trial is secured by the Alabama Constitution in most cases. I wouldn’t interpret the amendment this way, but I worry that a court might so interpret it, on the theory that interpreting it as only prohibiting actual violations of the state or federal constitutions or of state law would make the amendment largely superfluous.

I am, however, especially curious about provision (g), which doesn’t just bar violations of state law or of the state or federal constitutions but also says, “no Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.” Does that mean that choice-of-law provisions in contracts (which are quite routine, especially in business litigation) are invalid? Or is it just that such contracts can’t require Alabama courts to apply foreign law, though Alabama courts could choose to do so following Alabama choice-of-law rules? Please let me know if you have some insight on this.

(a) This amendment shall be known and may be cited as the American and Alabama Laws for Alabama Courts Amendment.

(b) The law of Alabama provides:
(1) The State of Alabama has developed its unique public policy of laws based on the United States Constitution, as protected by Amendment 10 to the United States Constitution.
(2) Upon becoming a state in 1819, Alabama adopted its first constitutional and statutory enactments, upon which it has built the rights, privileges, obligations, and requirements of its government and citizens.
(3) Both the provisions of the Alabama Constitution and the statutes and regulations of the State of Alabama, with interpreting opinions by its courts of competent jurisdiction, have developed the state’s public policy.
(4) The public policy of the State of Alabama protects the unique rights of its citizens beginning with Article I, Section 1 of the Constitution of Alabama of 1901, guaranteeing the equality and rights of men. Except as permitted by due process of law and the right of the people to vote for self-determination, the rights, privileges, and immunities of the citizens of the State of Alabama are inviolate.
(5) Different from the law of the State of Alabama is foreign law, which is any law, rule, or legal code, or system established, used, or applied in a jurisdiction outside of the states or territories of the United States, or which exist as a separate body of law, legal code, or system adopted or used anywhere by any people, group, or culture different from the Constitution and laws of the United States or the State of Alabama.
(6) Alabama has a favorable business climate and has attracted many international businesses. While Alabama business persons and companies may decide to use foreign law in foreign courts, the public policy of Alabama is to prohibit anyone from requiring Alabama courts to apply and enforce foreign laws.
(7) The public policy of this state is to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the Alabama Constitution or of the United States Constitution, including, but not limited to, due process, freedom of religion, speech, assembly, or press, or any right of privacy or marriage.
(8) Article IV, Section 1, of the United States Constitution provides that full faith and credit shall be given by each state to the public acts, records, and judicial proceedings of other states. Provided, however, when any such public acts, records, and judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama is not and shall not be required to give full faith and credit thereto.

(c) A court, arbitrator, administrative agency, or other adjudicative, arbitrative, or enforcement authority shall not apply or enforce a foreign law if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States.

(d) If any contractual provision or agreement provides for the choice of a foreign law to govern its interpretation or the resolution of any dispute between the parties, and if the enforcement or interpretation of the contractual provision or agreement would result in a violation of a right guaranteed by the Constitution of this state or of the United States, the agreement or contractual provision shall be modified or amended to the extent necessary to preserve the constitutional rights of the parties.

(e) If any contractual provision or agreement provides for the choice of venue or forum outside of the states or territories of the United States, and if the enforcement or interpretation of the contract or agreement applying that choice of venue or forum provision would result in a violation of any right guaranteed by the Constitution of this state or of the United States, that contractual provision or agreement shall be interpreted or construed to preserve the constitutional rights of the person against whom enforcement is sought. If a natural person subject to personal jurisdiction in this state seeks to maintain litigation, arbitration, an administrative proceeding, or a similarly binding proceeding in this state, and if a court of this state finds that granting a claim of forum non conveniens or a related claim violates or would likely lead to the violation of the constitutional rights of the nonclaimant in the foreign forum with respect to the matter in dispute, the claim shall be denied.

(f) Any contractual provision or agreement incapable of being modified or amended in order to preserve the constitutional rights of the parties pursuant to the provisions of this amendment shall be null and void.

(g) Nothing in this amendment shall be interpreted to limit the right of a natural person or entity of this state to voluntarily restrict or limit his, her, or its own constitutional rights by contract or specific waiver consistent with constitutional principles. However, the language of any such contract or other waiver shall be strictly construed in favor of preserving the constitutional rights of the natural person in this state. Further, no Alabama court shall be required by any contract or other obligation entered into by a person or entity to apply or enforce any foreign law.

(h) Except as limited by subsection (g), without prejudice to any legal right, this amendment shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.

(i) Where the public acts, records, or judicial proceedings of another state violate the public policy of the State of Alabama, the State of Alabama shall not give full faith and credit thereto.