Let's say that an arbitration clause says that the case "shall be decided in
accordance with Islamic law as determined by the Texas Islamic Court." One
party sues in Oklahoma state court. The defendant asks the court to stop the
state court proceedings and enforce the arbitration clause. The plaintiff says
the arbitration clause is unenforceable because some substantive and procedural
aspects of Islamic law as typically determined by the Texas Islamic Court are
unconscionable/against public policy. Would the court have to "consider" or
"look to" Sharia to decide the enforceability question?
An analogy might be an adequate alternative review on a forum non conveniens
motion; courts have had to consider, for example, whether Saudi courts are
adequate alternative fora given the lesser weight given to the testimony of
women and non-Muslims.
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, November 11, 2010 1:09 PM
To: Law & Religion issues for Law Academics
Subject: RE: TRO against Oklahoma "no use of Sharia Law"
Eric Rassbach writes:
> Wouldn't that depend on whether "consider" and "look to" mean something
> broader than "apply"?
My sense is that one advantage of arbitration is that courts generally
need not consider or look to the underlying law. As I understand it, that's
what happens in intrachurch disputes, when courts defer to the decision of the
authorized church tribunal -- not a traditional arbitration, I realize, but
close to it.
> And if one party challenged enforcement of the arbitration clause as
> unconscionable or involuntary based on the use of religious law, would
> deciding that question require a court to "consider" religious law?
I take it that if the claim required deciding what religious law should
actually have been applied, the First Amendment would bar a secular court from
resolving the claim. But do you mean that it would have consider religious law
to decide whether it actually called for (say) the application of sex
discriminatory rules? I would think that even there the court wouldn't
actually consider the law as such, but just hear testimony -- from instance,
from the arbitral tribunal's judges, or from the parties -- about what
procedures were actually followed by the tribunal. Or am I missing something?
>
>
> ________________________________________
> From: religionlaw-boun...@lists.ucla.edu [religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> [vol...@law.ucla.edu]
> Sent: Thursday, November 11, 2010 12:14 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: TRO against Oklahoma "no use of Sharia Law"
>
> But would the amendment actually apply to judicial enforcement of
> religious arbitrations -- or arbitrations under the law of foreign countries
> --
> so long as the court itself was only applying secular American law and not
> religious or foreign law?
>
> Eugene
>
> > -----Original Message-----
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of Eric Rassbach
> > Sent: Thursday, November 11, 2010 9:05 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: TRO against Oklahoma "no use of Sharia Law"
> >
> > In the video Prof. Helfand is apparently quoting, Rep. Duncan refers to
> > religious arbitration immediately before he says the quoted language:
> >
> > http://prawfsblawg.blogs.com/prawfsblawg/2010/11/religious-arbitration-
> > and-the-new-multiculturalism.html
> _______________________________________________
> 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.
>
_______________________________________________
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.
