Posted by Eugene Volokh:
Rejection of Saudi Arabia as an Alternate Forum for Resolving a Dispute:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250096321
I've blogged [1]before about (1) American courts' occasional
willingness to enforce Sharia law when they enforce foreign law (such
as Saudi law) -- just as they enforce the law of other countries --
and about (2) the general propriety of courts' enforcing the judgments
of Sharia arbitration panels, when the parties had contractually
agreed to have a dispute settled through such arbitration.
But I thought it would also be helpful, as a counterpoint, to quote
this case I just ran across, which deals with (3) when American courts
should decline to hear a case because the proper forum is a foreign
country that applies Sharia law. The case, Rhodes v. ITT Sheraton
Corp., 9 Mass. L. Rptr. 355 (Mass. Super. Ct. 1999), is from 10 years
ago, but I've seen very few references to it, so I expect it will be
new to most readers:
Plaintiff is a British citizen and resident of Great Britain. While
on summer break from her university in 1994, she visited her
parents at their home in Jeddah, Saudi Arabia. On August 23, 1994,
she and her sister met two of their friends at the Red Sea Beach
Resort, which is part of the Sheraton Jeddah Hotel and Villas
(Jeddah Sheraton) [operated and managed by a wholly owned
subsidiary of ITT Sheraton]. The resort complex on that date
encompassed a beach, a large concrete wharf, a wooden platform or
jetty and a lagoon. Coral stretched out from under the jetty and
around the edge of the lagoon. Plaintiff struck her head on this
coral when she dove into the lagoon from the jetty. She lay in the
water, face down and unable to move, until she was pulled out and
taken to a nearby hospital.
Plaintiff sustained a high level spinal injury as a result of her
dive.... Today, plaintiff ... cannot move her left arm or either of
her legs and is limited to minimal movement of her right arm....
Plaintiff�s expert estimates that her medical expenses resulting
from the accident will exceed ten million dollars.
Under Mass. Gen. Laws. c. 223A, § 5, I may dismiss or stay an
action upon finding �that in the interest of substantial justice
the action should be heard in another forum.� Massachusetts courts
have incorporated into the state forum non conveniens analysis
standards and principles enunciated in federal cases discussing the
federal common law doctrine.... First, I must consider whether an
adequate alternative forum is available. If an adequate alternative
forum does exist, I then must determine whether private and public
interests strongly favor litigating the claim in that forum....
Defendants cite federal cases granting motions to dismiss on forum
non conveniens grounds when the alternative forum was Saudi Arabia.
Implicit in these decisions is an acceptance of Saudi Arabia as an
adequate alternative forum. None of the cases, however, addressed
concerns similar to those raised by plaintiff. See, e.g., Forsythe
v. Saudi Arabian Airlines Corp., 885 F.2d 285, 290 (5th Cir.1989)
(parties previously agreed to bring all disputes before Saudi
tribunal and nothing indicated that Saudi forum would treat
plaintiff unfairly); Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 801
(7th Cir.1997) (male plaintiff was citizen of Saudi Arabia);
Shields v. Mi Ryung Constr. Co., 508 F.Supp. 891, 896
(S.D.N.Y.1981) (plaintiff attempted to �cast aspersions� upon Saudi
legal system without any supporting evidence); Tisdale v. Shell Oil
Co., 723 F.Supp. 653, 654-655, 659 (M.D.Ala.1987) (in absence of
undue influence, unequal bargaining or evidence that Saudi law is
inadequate, choice of forum clause requiring that all disputes be
referred to Saudi Labor Commission is enforceable); Jeha v. Arabian
Am. Oil Co., 751 F.Supp. 122, 125-126 (S.D.Tex.1990), aff�d, 936
F.2d 569 (5th Cir.1991) (plaintiffs offered no evidence that Saudi
forum was inadequate). Although my finding regarding the private
and public interests in this case renders a final determination as
to the adequacy of a Saudi forum unnecessary, I note that plaintiff
would face significant procedural disadvantages in Saudi Arabia.
The first significant drawback to trial of this case in Saudi
Arabia is that plaintiff would not be permitted to testify. All
parties are presumed to be prejudiced in favor of themselves and
therefore are not considered to be reliable witnesses. Plaintiff
could submit written assertions that would be made part of the
record. If a defendant were to deny any assertion made by
plaintiff, however, she would be forced to prove that assertion by
other means.
Plaintiff�s ability to prove her allegations would also be limited
by the fact that Saudi courts give more weight to oral testimony
than written testimony. Thus, defendants� oral testimony that they
took certain safety precautions would carry more weight than any
documents plaintiff could submit to rebut their testimony.
[Footnote: The lack of pretrial discovery procedures in Saudi
Arabia would stymie plaintiff�s ability to offer such documents.
Although according to defense expert Frank E. Vogel parties may
request that the court demand any necessary documents from another
party, the court need not exercise its wide discretion in her
favor.] Prevailing in Saudi Arabia would be even more difficult for
plaintiff in light of the requirement that, �[i]n financial
matters, a party must produce two male witnesses or one male and
two female witnesses in order to prove a point.�
Another disadvantage to a Saudi forum is that Saudi courts do not
follow any uniform rules of procedure. Every party to a case,
�sitting and facing the qadi (the judge), conversationally presents
its evidence which the qadi hears and weighs.� Id.
Cross-examination is limited, if allowed at all. The qadi decides
when enough evidence has been heard and at that point announces a
decision in open court. Saudi Arabia does not offer parties the
opportunity to be heard by a jury.
In addition to no rules of civil procedure, no system of binding
judicial precedent or case law exists in Saudi Arabia. Plaintiff
would not be able to predict or expect any particular rulings on
issues of law that are established in Massachusetts. That this and
the other procedural differences would apply equally to the
defendants does not minimize that fact that a Saudi forum would
deprive plaintiff of basic procedures which she expects to enjoy in
a Massachusetts forum.
Finally, the existence of biases against women and non-Muslims in
Saudi Arabia would impose additional disadvantages on plaintiff.
Defendants� expert attributes the differential treatment based on
gender and religion to �long-standing, well-known provisions in the
law.� Although defendants promise to ensure that any recovery by
plaintiff in a Saudi court would not be diminished because of her
gender and religion, their guarantee cannot insulate plaintiff
entirely from the systemic prejudices....
Even if the cumulative effect of the factors discussed above were
not enough to deem Saudi Arabia an inadequate alternative forum,
dismissal still would be improper if private and public interests
weigh in favor of trial in Massachusetts. [The court then explained
why it concluded the interests do so weigh. -EV] ...
At this stage, when the parties have not had an opportunity to
submit briefs on choice of law, it is unclear what substantive law
governs. [Note that the question of which law applies (the choice
of law question) is separate from the question of where the case
should be tried (the forum question), though one factor in favor of
deciding a forum non conveniens motion is indeed a slight
preference for the forum the law of which would apply. -EV]
Defendants assume that Saudi Arabian tort law is applicable based
on Massachusetts choice of law principles. These principles do not
clearly point to Saudi law; several factors appear to favor
Massachusetts law. Even if Saudi law were to apply, application of
a foreign law, while not ideal, need not be a determinative factor
in the forum non conveniens analysis.
[Footnotes merged and moved:] Plaintiff ... would be disadvantaged
if Saudi substantive law were to govern this case .... For example,
the better rule of law in a tort case probably would be that of
Massachusetts. Saudi tort law is �subsumed under private actions
and do[es] not exist as a distinct and highly developed field of
law.� Given the theory of liability in this case, it also is
significant that Saudi law does not recognize agency within the
concept of torts; [the ]general Islamic philosophy is that one is
always responsible for one�s own acts[]. Moreover, consequential,
indirect, and speculative damages generally are viewed as
nonrecoverable through a Saudi court. If she establishes
defendants� liability, plaintiff could only expect to recover
actual medical expenses and a fraction of her �diyah,� which is a
fixed amount of compensation for personal injury.
References
1. http://volokh.com/posts/chain_1202446904.shtml
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