It seems there are a number of discrete issues involved. 1. Can an arbitration agreement require that sharia be applied under a choice of law provision -- it would seem so to me. Some seem to see entanglement. 2. Can an arbitration agreement require that arbitrators be knowledgeable about the underlying law, in this instance, sharia. Again, it seems so to me -- some have problems with it that I don't fully understand. 3. Can an arbitration agreement require the appointment of people of a certain faith to arbitrate the dispute under the contract within that faith? Again, I see no problem, but I do understand the equal protection and establishment concerns, though they seem to not be significant to me under a contract which the parties agree is to be arbitrated according to a set of rules and they want to have certain qualifications (including religious ones) for the arbitration. 4. Can an arbitration agreement which were to be drafted in the U.S. as part of a U.S. commercial transaction or consumer transaction include a provision that requires the arbitrators to be of a certain faith in arbitrating an ordinary commercial or consumer dispute where both parties want those particular characteristics for the arbitrators (we're not talking contracts of adhesion here or regulated industries or commercial banks, etc.). Why not? 5. Can the Bank of America or a securities firm or VISA cc or any such impose such a condition -- the arbitrators must be of a certain faith? No. Because these are contracts of adhesion and affect too many people and are too standard, etc. In this circumstance the public interest in non-discrimination on the basis of religion would trump. 6. Can the same sort of companies as in 5 enter into contracts with negotiated arbitration agreements under which the consumer or borrower or investor is the one who insists on the custom arbitration clause and the sharia law interpreted by Saudi Muslims? Why not? Where is the societal interest in not treating these contracts as enforceable?
The court is not getting into any religious issues or religious laws. It is just following the contract in terms of the qualifications of the arbitrators as agreed upon by the parties -- and there is nothing insidious or invidious about it. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope." Martin Luther King, Jr., in 1960 on Brown v. Board of Education
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