Archive | Foreign and Religious Law in American Courts

Those interested in this subject might want to check out today’s Supreme Court decision in Daimler AG v. Bauman. The question is whether California courts could have jurisdiction over Daimler AG, a German company whose subsidiaries do business in California, for actions allegedly committed by another Daimler AG subsidiary in Argentina:

The complaint alleged that during Argentina’s 1976-1983 “Dirty War,” Daimler’s Argentinian subsidiary, Mercedes-Benz Argentina (MB Argentina) collaborated with state security forces to kidnap, detain, torture, and kill certain MB Argentina workers, among them, plaintiffs or persons closely related to plaintiffs.

Since the Due Process Clause bars state courts from exercising jurisdiction if there is not a sufficient connection between the state and the conduct or the defendant, the question is constitutional in stature. And, after a long discussion focused on American law, Justice Ginsburg’s near-unanimous majority opinion (for all the Justices except Justice Sotomayor) added this:

The Ninth Circuit, moreover, paid little heed to the risks to international comity its expansive view of general jurisdiction posed. Other nations do not share the uninhibited approach to personal jurisdiction advanced by the Court of Appeals in this case. In the European Union, for example, a corporation may generally be sued in the nation in which it is “domiciled,” a term defined to refer only to the location of the corporation’s “statutory seat,” “central administration,” or “principal place of business.” The Solicitor General informs us, in this regard, that “foreign governments’ objections to some domestic courts’ expansive views of general jurisdiction have in the past impeded negotiations of international agreements on the reciprocal recognition and enforcement of judgments.” Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the “fair play and substantial justice” due process demands.

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From Torres v. State (Fla. Ct. App. Nov. 6, 2013):

Appellant challenges his [thirty-year sentence] for first-degree sexual battery…. We agree that the trial court’s comments could reasonably be construed to suggest that the trial court based appellant’s sentence, at least in part, on religion. Therefore, we reverse and remand for resentencing before a different judge.

During the sentencing hearing, appellant’s father spoke on appellant’s behalf and stated, “Your Honor, I am here to tell you who is my son. And I’m telling you the truth because I am a Catholic and I believe in the Bible. As a father that I am, I could tell you that my son is innocent.”

Appellant then addressed the court and stated that he was innocent. He asserted that he had been dating the victim, although she was a troubled woman of poor character, and she set him up for the sexual battery charge. Then, the following exchange occurred:

THE COURT: You were married, weren’t you?
[APPELLANT]: Yeah. I was married, but my wife was in my country.
THE COURT: I know that. Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people — that’s not the way anybody with morals should do anything….

At the end of the sentencing hearing, the trial court again commented on appellant’s claims that he had a consensual relationship with a woman other than his wife, stating:

If [the victim] is all what you say she is, you should have been miles and miles and miles away from her. You should never have invited her into your home. You should certainly never have gotten in a vehicle with her and gone bar-hopping. You

From State v. Farokhrany (Ore. Ct. App. Oct. 23, 2013) (some paragraph breaks added):

Defendant appeals his convictions for unlawful distribution of a controlled substance to a minor; unlawful possession of cocaine; attempted sexual abuse in the second degree; sexual abuse [of a minor] in the third degree; and driving under the influence of intoxicants….

During voir dire, the prosecutor engaged potential jurors in a discussion about their views regarding the prosecution calling only one witness to prove a fact. The prosecutor contrasted for the potential jurors a scenario that he asserted “was out of either Iran or Saudi Arabia” where an alleged rape victim was required to produce five male witnesses to prove the rape….

After the jury was sworn, and outside of the jury’s presence, defense counsel requested a curative instruction regarding the prosecutor’s comments on Sharia law. Defense counsel asserted that the prosecution’s comments could bias the jury against defendant because defendant is Iranian and Muslim. The prosecutor stated that he had used this example when speaking with potential jurors in every sex abuse case he had tried in the past few years.

Defense counsel requested that the jury be instructed not to use defendant’s race, religion, or ethnicity against him in reaching a verdict, and that the prosecutor’s reference to Sharia law was merely an illustration of the difference between legal systems. The court refused to give the proposed instruction, commenting that such an instruction was unnecessary as the jury did not know defendant’s ethnicity or religion. According to the court, as far as the jury was concerned, defendant “could be an American,” and “could be just as much a Christian as he is a Muslim.” …

[W]e disagree with the trial court’s implicit conclusion that the jury would not relate the comments about Sharia law

Here’s Virginia House Bill 825, proposed in the 2012 session:

§ 8.01-465.26. Application of foreign laws.

A. For purposes of this chapter, unless the context requires a different meaning:

“Foreign law” means any constitution, law, legal code, or legal system that is established outside the jurisdiction of the United States, the District of Columbia, or the states or territories of the United States.

B. No justice, judge, or other judicial officer of any court of the Commonwealth shall decide any issue in a case or action before that court, and no judge, hearing officer, or other official of any administrative agency, department, or commission shall decide any issue in any adjudication, rule-making, or other administrative proceeding before that agency, department, or commission, in whole or in part based on the authority of foreign law except to the extent that the United States Constitution or Constitution of Virginia or any federal or state law requires or authorizes the consideration of such foreign law.

But wait — judges already can only consider any law only to the extent that federal or state law “authorizes” the consideration of the law. To be sure, such law (often common law) often authorizes such consideration; choice of law rules authorize (or even require) consideration of foreign law, contract law authorizes (or even requires) consideration of foreign law when the contract calls for it. And if consideration of foreign law isn’t authorized, then the judge’s decision would already be legally mistaken. Even the controversial Supreme Court decisions of the last decade that relied on foreign law relied on precedents that “authorize[d] the consideration of such federal law.”

Of course, if “law” here refers to “statute” and excludes common-law rules, the proposal would have a great deal of effect — bad effect, since that means that common-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 [...]

Terra Firma Investments (GP) 2 Ltd. v. Citigroup Inc. (2d Cir. 2013), reverses a jury verdict because of the trial court’s misapplication of English law (in a lawsuit over the sale of the London-based EMI). Judge Lohier concurs, with this interesting opinion:

I agree entirely with our resolution of the issue of English law involved here and concur fully in the majority opinion. I write separately to add that, as a result of commercial agreements and the growing number of international commercial disputes, we are asked with increasing frequency to decide issues that require us to determine and apply foreign law. This case illustrates the trend. Although the Federal Rules of Civil Procedure make it clear that “determining foreign law” falls well within the province of federal courts, Fed.R.Civ.P. 44. 1, we will encounter more and more cases involving unsettled questions of foreign law that implicate important policy preferences of a foreign nation.

When faced with difficult questions of state law, we have a well-developed, successful system of certifying the question to state courts that promotes the development of state decisional law by state courts and strongly reflects principles of comity and federalism. Previous opinions and academic journals have adequately described that state certification system, and I do not need to do so again here. In the context of cross-border commercial disputes, there is every reason to develop a similar formal certification process pursuant to which federal courts may certify an unsettled and important question of foreign law to the courts of a foreign country. Fortunately, in this case, the question appears to have been neither unsettled nor especially important to the development of English law.

American courts routinely enforce foreign money judgments; this is needed for international business, and it also avoids the injustice that might happen if someone flees, say, Canada or Germany with assets that he owes to someone, and that he otherwise couldn’t be required to pay. At the same time, it’s also unjust if American courts are used to enforce a foreign money judgment that was entered using procedures or implementing substantive rules that we see as sufficiently unfair. Yet how are American courts to figure out whether some relatively little-know foreign judicial system is fair enough? Here’s an example of one court struggling with this, Manco Contracting Co. v. Bezdikian (Cal. Ct. App. Jan. 11, 2003):

Manco is a construction and engineering company operating in Qatar. In the mid-1980’s, Bezdikian, who had cofounded Manco with Qatari citizen Omar Al-Mana, owned 40 percent of the company and Al-Mana owned 60 percent. By 1988, the relationship between Bezdikian and Al-Mana soured and Bezdikian left Qatar never to return…. After leaving Qatar, Bezdikian eventually settled in Los Angeles county.

In 1991, Manco sued Bezdikian in Qatar’s civil courts alleging Bezdikian had embezzled company funds. Bezdikian cross-complained against Manco by which he sought an accounting and Manco’s dissolution. The Qatari court consolidated the two suits and in 1997 entered judgment for Manco. Bezdikian appealed to the Qatari appellate court. In 2000, the Qatari appellate court entered a final judgment for Manco for 13.69 million riyals, which at then-current exchange rates was about 3.76 million dollars.

In 2004, Manco filed in Los Angeles Superior Court a complaint for “Domestication of Foreign Money Judgment” seeking to render the Qatari judgment a judgment enforceable in California under the former Uniform Foreign Money-Judgments Recognition Act. Following a bench trial, the trial court entered its judgment domesticating the