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 > > >_______________________________________________ >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. _______________________________________________ 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.
