But would this agreement be enforceable in Oklahoma ,with its ban on courts
applying sharia law?
Marc D. Stern
Associate General Counsel
165 East 56th Street
NY NY 10022
ste...@ajc.org
212.891.1480
646.287.2606 (cell)
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, January 03, 2011 02:33
To: Law & Religion issues for Law Academics; Eric Rassbach
Subject: Re: May American court appoint only Muslim arbitrators,pursuant to
an arbitration agreement?
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 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
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
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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Douglas Laycock
Armistead M. Dobie Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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