It is helpful to remember that in the actual case the contract (at least according to the Texas Ct. of Appeals) did not call the for a court to appoint the arbitrator(s). As Steve Sanders pointed out, a properly drafted contract would avoid the problem we are discussing by providing for private appointment of arbitrators. The question would still remain whether an arbitration award given by such arbitrators should be enforced by a US court. I don't know much about them, but I think the Jewish arbitration cases say the answer is "yes." There would still, I suppose, be a question whether the arbitral award might be denied enforcement on other grounds, such as arbitrator prejudice against non-Muslim-owned entities, if such prejudice could be shown, or other bases for denial of enforcement of arbitral awards in general.
Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, January 03, 2011 7:06 AM To: Law & Religion issues for Law Academics Subject: May American court appoint only Muslim arbitrators, pursuant to an arbitration agreement? 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 appointed 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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