Here is the relevant provision (in translation) from the case-link Eugene sent
around:
The Arbitrator must be a Saudi national or a Moslem foreigner chosen amongst
the members of the liberal professions or other persons. He may also be chosen
amongst state officials after agreement of the authority on which he depends.
Should there be several arbitrators, the Chairman must know the Shari'a,
commercial laws and the customs in force in the Kingdom.
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, January 03, 2011 11:46 AM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators, pursuant to
an arbitration agreement?
I agree with Nate’s neutral principles / entanglement argument.
But I wonder whether one can so easily dismiss the equal protection argument
from the enforcement of the contract. The court, after all, would have to
decide who gets to perform an important and lucrative task based on that
person’s religion, whether or not it’s merely enforcing a private contract. Of
course the judge won’t be acting based on religious animus, but he will be
deliberately treating people differently based on religion.
Also, is the Batson / J.E.B. line of cases relevant here,
assuming that it can be expanded to peremptories based on religion and not just
race or sex? (As I recall, most lower court cases that have considered the
issue have indeed expanded Batson and J.E.B. to religion.) If a court may not
allow a private party to challenge a juror based on religion, even when the
judge wouldn’t himself be discriminating based on religion, may a court allow
private party agreement to provide for selection – by the judge – of an
arbitrator based on religion?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nathan Oman
Sent: Monday, January 03, 2011 7:28 AM
To: Law & Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an
arbitration agreement?
It seems difficult to find an equal protection violation if the Court is merely
enforcing the contract. It seems to me that a more likely constitutional
objection would be that the contract cannot be enforced without running afoul
of the neutral principles doctrine. Can a court make a decision about who is
or is not a Muslim without making theological choices? Would a shia muslim be
acceptable? A member of the nation of Islam?
~~~~~~~~~~~~~~~~~~~~~~~~
Nathan B. Oman
Associate Professor
William & Mary Law School
P.O. Box 8795
Williamsburg, VA 23187
(757) 221-3919
"I beseech you, in the bowels of Christ, think it possible you may be
mistaken." -Oliver Cromwell
On Mon, Jan 3, 2011 at 10:06 AM, Volokh, Eugene
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
That’s the issue lurking in In re Aramco Servs.
Co.<http://scholar.google.com/scholar_case?case=11521915190435651264>, now on
appeal to the Texas Supreme Court. DynCorp and Aramco Services (both of which
were at the time Delaware corporations headquartered in Houston, though Aramco
Services is a subsidiary of Saudi
Aramco<https://www.aramcoservices.com/about/>, the Saudi government’s oil
company) signed an agreement under which DynCorp was to create a computer
system (in the U.S.) and install it at Aramco’s Saudi facilities. The contract
provided that it was to be interpreted under Saudi law, and arbitrated under
Saudi arbitration rules and regulations. Those rules and regulations apparently
call for the arbitrators to be Muslim Saudi citizens. The trial court, however,
appointed a three-arbitrator panel consisting of a Muslim (apparently a Saudi)
and two non-Muslim non-Saudis. Aramco appealed, arguing that (1) under the
contract the arbitrators were not supposed to be appointed by a court, and, (2)
in the alternative, that the court erred in appointing non-Muslim non-Saudis.
The Texas Court of Appeals agreed with Aramco on item 1, and therefore didn’t
reach item 2. But there is an interesting constitutional issue lurking in the
background: If a contract does call for a court to appoint arbitrators, and
provides that the arbitrators must be Muslims (or Jews or Catholics or what
have you), may a court implement that provision, or does the First Amendment or
the Equal Protection Clause bar the court — a government entity — from
discriminating based on religion this way, even pursuant to a party agreement?
Any thoughts on this?
Eugene
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