A subsidiary of a Saudi government agency (Aramco) entered into
a contract with an American company, having to do with conduct in Saudi Arabia.
I take it that we'd have no problem with a subsidiary of a French government
agency providing that disputes with it would be arbitrated under French law.
The same, I think, would be true with regard to Saudi law, and I don't see how
the fact that Saudi law is based on Islamic law should make a difference.
It seems to me improper - for reasons being discussed in a
different branch of this thread - for American courts to choose arbitrators
based on those arbitrators' religion (even if a contract so provides). But if
that was absent, I see no reason to bar arbitration under Saudi law when we
would allow arbitration under French law.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, January 03, 2011 6:36 PM
To: Nathan Oman; Law & Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators, pursuant
toanarbitration agreement?
Point of clarification--So genital mutilation is culturally Islamic as opposed
to theologically Islamic?
Shelley was about the composition of a community, which is what land use law is
generally about, and not simply a response to the previous embedded practice of
slavery. The court was unwilling to permit courts to be the enablers of
segregated land ownership. One of the basics of American society
is real property ownership and the relationship of generations. So I will stand
by my admittedly sociological reading of Shelley. Trying to squeeze Shelley
into the slavery category is insufficiently nuanced in my view.
The term "autonomy" really does nothing to further discussions about law and
religion. It is a code word with more hidden agendas than meanings
The more important question is whether the might of the state should shore up a
religious contract. Don't religious organizations have sufficient methods to
enforce religious law without having to ask civil institutions to intervene?
Moreover, where is the state interest in seeing disputes resolved through
theological beliefs? Let us take the perspective of the society for a moment
and not just the subjective desires of the contracting religious parties.
The core issue here is twofold: why is the religious dispute in a civil court
and what benefit is the religion seeking by resorting to civil enforcement?
Those questions need to be frankly addressed.
Marci
Sent from my Verizon Wireless BlackBerry
________________________________
From: Nathan Oman <nate.o...@gmail.com>
Date: Mon, 3 Jan 2011 21:05:24 -0500
To: <hamilto...@aol.com>; Law & Religion issues for Law
Academics<religionlaw@lists.ucla.edu>
Subject: Re: May American court appoint only Muslim arbitrators, pursuant toan
arbitration agreement?
First, I assume as a matter of contract law that any obligations arising out of
such agreements that involve otherwise illegal conduct are void. So genital
mutilation, trading of girls as wives (or simply for procreation), aiding
polygamy, covering up child abuse when it is required to be reported, and the
settling of debts through indentured servitude are out of the picture.
This is true regardless of the religious content of the contract, and would be
true regardless of the content of constitutional law. (Also, it is worth
pointing out that female genital mutilation is not condoned by Islamic law and
is condemned by ulama of the classical fiqh.)
Second, does commercial arbitration ever involve real property? If so, we are
right back in Shelley v Kraemer territory, no? One of the reasons in my view
justifying the Shelley result is that such contracts shut out minorities for
generations to come. The time lag of the deal is troubling
Two points. First, in most of the commercial arbitrations involving Islamic
law any real estate is located in a foreign country. Furthermore, the main
point at which these arbitrations are likely to diverge significantly from
western law is in the application of the prohibition on riba, which is
basically usury. The reality is that this is not going to be a dramatic show
down over FMG or the stoning of adulterers. It is going to be a dispute about
whether a sale and lease back transaction contains an implied usurious interest
rate or the like. Second, while I think that there is some truth to concerns
about the long lasting effects of real estate, I don't think that is ultimately
what makes the outcome in Shelly v. Kramer justifiable is that it involved real
rather than personal property. Rather, I think that it had everything to do
with the history of racial subordination in this country and the way in which
real estate covenants perpetuated that system of racial subordination. It
makes not sense to me to try to understand the outcomes in cases like Shelly v.
Kramer as applying some universal principle rather than as a reaction to the
particular history of slavery and its aftermath in the United States. The
normative question, it seems to me, is whether, in light of American history
and our present circumstances, Islamic arbitration of commercial disputes
between two large corporations that have agreed to the application of Islamic
law to their dispute arising out of a transaction occurring in Saudi Arabia
raises some similar systemic threat to liberal democracy in the United States.
Frankly, I just don't see it as being remotely analogous to the way in which
Jim Crow undermined the liberal order in the United States. Indeed, attempts
to equate the two strike me as bizarrely implausible.
Finally, why isn't a liberal society better served by enforcement of such
agreements within their own universes, which would leave the civil courts out?
Religious cultures have plenty of ways to penalize their members including
excommunication or shunning. Why are civil courts needed exceopt to shore up
the power of the religion?
I actually think that this makes a great deal of sense, and as I read the
contract at issue in the Texas case it is not at all clear to me that it
actually did contemplate an American court -- as opposed to a Saudi court --
appointing the arbiter. Hence, as a prudential matter, I think that religious
communities would be best served not trying to heavily enlist the state in
their dispute resolution processes. That said, it seems to me that one can
involve the state in such contracts on exactly the same basis that the state is
involved in all contracts, namely respecting the independent choices of its
citizens to order their legal affairs as they see fit. Such an autonomy
justification for contract is essentially agnostic as to the substantive
content of contracts, so long as they do not stray into illegality or
unconscionability. What matter is not what the parties choose but that they
chose it.
Nate Oman
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