Archive | Foreign and Religious Law in American Courts

Islamic Law and Saudi Law in American Courts

From Standard Chartered Bank v. Ahmad Hamad AL Gosaibi and Bros. Co., 2014 WL 96219 (N.Y. trial ct. Jan. 10, 2014):

Defendants assert that they have standing to move to quash the instant subpoenas on the ground that the subpoenas seek all contracts between Pepsi and the defendants, documents which, they claim, include confidential proprietary information about defendants’ bottling operations. In support of their claim defendants submit the affidavit of Eric L. Lewis, Global Legal Coordinator for defendant-judgment debtor Ahmad Hamad A1 Gosaibi & Brothers Company (“AHAB”)….

Defendants contend that compliance with the subpoenas would expose Pepsi to civil and criminal penalties under the laws of Saudi Arabia. In support they offer the unsworn affidavit of AHAB’s Saudi Arabian lawyer, Dr. Eyad Reda, who claims that absent consent of the account holder or royal or agency order, Article 19 of the Saudi Banking Control Law and Shari’ah principles of privacy prohibit disclosure of banking information to any third parties.

In opposition, plaintiff’s expert, Muddassir H. Siddiqui, alleges that Article 19 prohibits such disclosure only by parties who come into possession of banking information during the performance of their duties under the Saudi Banking Control Law. He notes that since Pepsi does not operate as a bank under Saudi Law and is not an agent of the Saudi Arabian Money Authority, Article 19 imposes no restrictions on. Pepsi. Moreover, he contends, Saudi law and Shari’ah law obligate a Saudi debtor to fully disclose its assets to its creditors. Thus, Pepsi’s disclosure pursuant to the subpoenas is consonant with Saudi law.

The Court accepts the opinion of plaintiff’s expert. He supports it with specific citations and a copy of the Banking Control Law. Defendants’ expert fails to specify what “parties” are subject to the requirements of the Saudi Banking Control Law

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Using Foreign Law in Interpreting the U.S. Constitution

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.

Is [...]

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Religious Law in American Criminal Courts

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

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Conviction of Iranian-American Muslim Reversed Because of Prosecutor’s Reference to Sharia

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

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Disciplinary Charges Filed Against “Messiah” Judge

In August, Tennessee family court judge Lu Ann Ballew changed a child’s name from “Messiah,” over the parents’ objection:

“The word Messiah is a title and it’s a title that has only been earned by one person and that one person is Jesus Christ,” Judge Ballew said….

According to Judge Ballew, it is the first time she has ordered a first name change. She said the decision is best for the child, especially while growing up in a county with a large Christian population.

“It could put him at odds with a lot of people and at this point he has had no choice in what his name is,” Judge Ballew said.

As I noted at the time,

The first reason strikes me as clearly unconstitutional under the Establishment Clause. A judge may not reject parents’ decisions based on her view of the messianic status of Jesus — that is a theological question that cannot be used as the basis of government decisionmaking about people’s rights. This principle most often arises in church property disputes, where the Supreme Court has held that courts may not decide which faction in a church is the more religiously orthodox, but it also applies more broadly to prohibit the government from adjudicating people’s rights based on theological judgments (see, e.g., United States v. Ballard). But beyond this constitutional question, I quite doubt that Tennessee law authorizes judges to make decisions based on their theological judgments.

The second reason — the risk of social difficulties for the child — was, I argued, more defensible, though still on balance not terribly persuasive. A month later, the decision was reversed.

Now, the Tennessee Board of Judicial Conduct has filed charges against Judge Ballew, faulting the judge for relying on the first reason [...]

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Court Enforces Religious Arbitration Agreement, Over Objection of Plaintiff

In Spivey v. Teen Challenge Inc. (Fla. Ct. App. Oct. 11, 2013), Pamela Spivey’s son, Nicklaus Ellison, then age 19, “enrolled in a year-long program at Teen Challenge’s substance abuse facility,” which “assist[s] young men in overcoming addiction through the application of biblical principles.” Ellison fell off the wagon several times, and eventually died from a drug overdose. Spivey sued, claiming Teen Challenge essentially committed malpractice by negligently treating Ellison.

But when Ellison entered into the Teen Challenge program, Ellison signed an arbitration agreement that provided for arbitration by Christian conciliation. Under Florida law, in a wrongful death case the plaintiff acts as a representive of the decedent, and “stands in the shoes” of the decedent, being bound by any arbitration agreements that the decedent had signed. Spivey sought to avoid this, largely on the grounds that she hadn’t entered into the arbitration agreement, and that it would violate the First Amendment to require her to go through religious arbitration, which may involve prayer and other religious activity:

Ms. Spivey points to a provision in the Rules providing for prayer as a normal part of the mediation and arbitration process. She argues that she, as personal representative, should not be forced to engage in a process involving a Christian prayer (even though she is a Christian) because to do so violates principles prohibiting governmentally-coerced religious acts. She asserts that her right to the free exercise of her personal religious beliefs is inalienable and cannot be waived, even in the context of her duties as a personal representative.

But the court disagreed:

[A] personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative; personal representatives serve the estate’s interest, not vice-versa. See Kasmer v. Guardianship of Limner, 697 So.

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The Biggest Democracy’s Bigger Death Penalty

India has just sentenced four men to death in the infamous Delhi rape/murder case. India has apparently ended an eight-year moratorium on executions last year, greatly altering the global capital punishment map. At the same time, it also passed a new rape law, which would allow for execution in aggravated cases (not necessarily involving minors) even when no death results. Thus India’s new law goes even beyond what was recently forbidden by the U.S. Supreme Court in Kennedy v. Louisiana.

The problem with determining constitutional law in reference to a “international opinion” and practice is that it keeps changing, and not in a constant direction. In Roper v. Louisiana, the Court famously found the practices of other countries relevant to the constitutionality of the death penalty. A few years later, in Kennedy v. Louisiana, the Court held the death penalty could not be constitutionally applied to child rapists (having given up execution for adult rape a while back).

In Roper, the Court found the countries that had executed juveniles in recent decades to be a motley mix of African and Islamic-law countries. But India is the world’s largest democracy, with Anglo-American legal traditions.

The more interesting point here is not about death penalty jurisprudence per se, but about the underlying assumptions about the reality and inevitability of human moral progress that underpins much of constitutional law’s “evolving consensus” discourse. Unlike in biology, norms and morales can evolve back.

[Of course, the death sentence is far from the end of the line for the Delhi rapists. There will be appeals, pardon requests, and the possibility of a last-minute stay, like the Indian Supreme Court gave this week to a father who beheaded his five daughters in an argument with his two wives.] [...]

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Fifth Circuit Rejects Canadian Libel Judgment Against Blogger

The case is Trout Point Lodge, Ltd. v. Handshoe (5th Cir. Sept. 5, 2013), and it applies the SPEECH Act, a federal statute that, among other things, provides:

Notwithstanding any other provision of Federal or State law, a domestic court shall not recognize or enforce a foreign judgment for defamation unless the domestic court determines that:

(A) the defamation law applied in the foreign court’s adjudication provided at least as much protection for freedom of speech and press in that case as would be provided by the first amendment to the Constitution of the United States and by the constitution and law of the State in which the domestic court is located; or

(B) even if the defamation law applied in the foreign court’s adjudication did not provide as much protection for freedom of speech and press as the first amendment to the Constitution of the United States and the constitution and law of the State, the party opposing recognition or enforcement of that foreign judgment would have been found liable for defamation by a domestic court applying the first amendment to the Constitution of the United States and the constitution and law of the State in which the domestic court is located.

Here’s an excerpt from the facts:

Handshoe, a Mississippi citizen, owns and operates, a public-affairs blog with the tagline “Alternative New Media for the Gulf South.” He describes as a “forum for local residents and other interested parties to gather and share information regarding various political and legal issues that impact the Gulf Coast.”

One of the blog’s focal points over the last few years has been Aaron Broussard, the former Parish President of Jefferson Parish, Louisiana. Broussard was indicted in the United States District Court for the Eastern District of Louisiana and

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So What’s This Supposed to Mean?

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 [...]

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“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 [...]

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Certification of Legal Questions to Foreign Courts?

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.

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Defining “High Seas Felonies” in Another Country

A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on [...]

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Qatari Law in U.S. Courts

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

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South Dakota Ban on Court Enforcement of Religious Law [UPDATE: Added Discussion of Legislators’ Comments on the Law]

Several months ago, the South Dakota Legislature enacted this law:

No court, administrative agency, or other governmental agency may enforce any provisions of any religious code.

My question: What exactly does it mean to “enforce any provisions of any religious code”? If the law is (A) limited to barring courts from enforcing religious law because it’s religious law (e.g., “because the defendant is a Muslim, we will apply Islamic law to him”) or from interpreting contracts or wills that call for application of religious law (e.g., “interpret this prenuptial agreement according to Jewish law”), then I suspect that the law is merely duplicative of existing law. Courts already can’t enforce religious law just because it’s religious law, or interpret religious law even when interpreting an contract or a will (though there’s some dispute about that).

But if the law (B) bars courts from enforcing statutes that mirror a religious prohibition, foreign laws that mirror a religious prohibition, or terms in contracts or wills that mirror a religious prohibition, then it would be much broader: It would, for instance, invalidate wills that provide that each son inherit twice what each daughter inherits, when that’s intended to follow Islamic law. It would invalidate contracts that are structured in order to comply with Islamic law prohibitions on paying interest. It would invalidate contracts or covenants that bar the sale of alcohol on certain property, when that’s intended to follow either Christian beliefs (to the extent that they are seen as forming a “religious code”) or Muslim beliefs.

It would render unenforceable contracts that provide that disputes be resolved using religious arbitration, whether Christian or Jewish, if those contracts are intended to follow perceived Christian or Jewish religious obligations not to have one’s disputes resolved by outsiders. And it might render invalid foreign [...]

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