The court could apparently comply with the contract, and avoid all entanglement iwth religion, by appointing three Saudis. Does anybody see a problem with that?
I assume that all Saudis are Muslim, or at least that the percentage is so high that the odds of appointing a non-Muslim Saudi are negligible. On Mon, 3 Jan 2011 12:34:05 -0500 Eric Rassbach <erassb...@becketfund.org> wrote: > >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 Nates 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 > persons religion, whether or not its merely enforcing a private contract. > Of course the judge wont 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 wouldnt 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: >Thats 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 governments oil >company) signed an agreement under which DynCorp was to create a computer >system (in the U.S.) and install it at Aramcos 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 appoi nted 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 didnt >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 > > >_______________________________________________ >To post, send message to >Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. > >_______________________________________________ >To post, send message to Religionlaw@lists.ucla.edu >To subscribe, unsubscribe, change options, or get password, see >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > >Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people >can read the Web archives; and list members can (rightly or wrongly) forward >the messages to others. Douglas Laycock Armistead M. Dobie Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
