Oklahoma's Banning of International Law and Its Relation to Business

[Pierrot Le Fou]

Somewhat similar to the issues in this thread:
http://boards.straightdope.com/sdmb/...d.php?t=584505

The new constitutional amendment:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia Law.
International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons.
The law of nations is formed by the general assent of civilized nations. Sources of international law also include international agreements, as well as treaties.
Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.

Some people read the amendment as banning the use of any foreign law.

This is one of the stupidest things that Oklahoma could have done.

What is going to happen to contracts that have choice of law provisions that choose foreign law or international agreements? What happens to cases that come before Oklahoma courts where the parties understood their dealings to under customary international business law? Will businesses and investors stay away from Oklahoma if their business involves international issues?

Here is a blog post that present six possible scenarios:

First, state courts will be prohibited from relying on international or Sharia law as a tool to develop the common law or to interpret Oklahoma statutes or the Oklahoma or federal constitutions. Second, governing law clauses in contracts that rely on international law or Sharia law will not be enforceable. Third, the provision prohibiting state courts from addressing “legal precepts of other nations or cultures” may preclude courts from enforcing foreign choice of law provisions. Fourth, the enforcement of foreign judgments that rely on foreign law as the rule of decision may also run afoul of the prohibition on looking to the “legal precepts of other nations or cultures.” Fifth, the enforcement of foreign arbitral awards that rely on international, Sharia, or foreign law may also now be suspect in Oklahoma state courts, although such a state law provision would be preempted under the FAA and the New York Convention, which must be applied in state courts under Southland. Sixth, as Julian Ku has noted earlier, foreign investors will now be wary of consenting to jurisdiction in Oklahoma state courts.

http://kluwerarbitrationblog.com/blo...-state-courts/

What a clusterf*ck.

[The Second Stone]

International law is sometimes based on treaties that the US has formally joined, which makes it binding law that the states cannot ignore.

I have a good friend who lives in Oklahoma who is convinced that the state is populated with morons.

[Whack-a-Mole]

Originally Posted by Pierrot Le Fou

What is going to happen to contracts that have choice of law provisions that choose foreign law or international agreements? What happens to cases that come before Oklahoma courts where the parties understood their dealings to under customary international business law? Will businesses and investors stay away from Oklahoma if their business involves international issues?

Federal law trumps state law.

I would be shocked if any judge in Oklahoma ever decides a case with this new law as its basis. If they do I suspect it will be overturned in a higher court without sweat.

As such I think business will march along fine knowing there is really nothing there to be worried about (except, perhaps, realizing they are doing business in a state where the majority are morons but then that might be a good thing...fools and their money being easily parted and all that).

[Pierrot Le Fou]

Originally Posted by Whack-a-Mole

Federal law trumps state law.

I would be shocked if any judge in Oklahoma ever decides a case with this new law as its basis. If they do I suspect it will be overturned in a higher court without sweat.

As such I think business will march along fine knowing there is really nothing there to be worried about (except, perhaps, realizing they are doing business in a state where the majority are morons but then that might be a good thing...fools and their money being easily parted and all that).

Is there anything in federal law that requires a state to enforce a choice of law provision that violates a state's public policy? There is an excellent argument that provisions that require following foreign law, customary international law, international agreements, or treaties* now violate Oklahoma public policy.

*excluding treaties that the US entered since they are federal law

[Skald the Rhymer]

Originally Posted by Pierrot Le Fou

Is there anything in federal law that requires a state to enforce a choice of law provision that violates a state's public policy? There is an excellent argument that provisions that require following foreign law, customary international law, international agreements, or treaties* now violate Oklahoma public policy.

*excluding treaties that the US entered since they are federal law

McCulloch v. Maryland is the first thing that comes to mind, but I'm sure an actual lawyer will come along and school me.

[Pierrot Le Fou]

Originally Posted by Skald the Rhymer

McCulloch v. Maryland is the first thing that comes to mind, but I'm sure an actual lawyer will come along and school me.

What exactly do you think McCulloch has to do with the Oklahoma amendment? McCulloch was about Congress's power to form a bank and that Maryland did not have the power to destroy the bank with a tax. I see no relevance.

The Oklahoma amendment allows for the use of federal law. I do not think there is a federal law that requires a state to enforce a choice of law provision that violates that state's public policy.

[Todderbob]

Forgive me -- I don't understand the problem here. It basically states "Judges are forbidden from using the following in consideration of their cases..." right?

It goes on to list a few things, we'll ignore what they are for now.... My question is how frequently were these hinges being used in court considerations in the past? Any treaty the US entered into is US law, not international. And seriously? Separation of church and state -- fuck sharia law, I no more want my courts ruling on that then I want them ruling on Catholic... Whatever rules they have.

[Pierrot Le Fou]

Originally Posted by Todderbob

Forgive me -- I don't understand the problem here. It basically states "Judges are forbidden from using the following in consideration of their cases..." right?

Contracts that involve international business issues often invoke foreign law, customary international law, and treaties and agreements that may not be part be of federal law. These contracts can end up before state courts.

[AK84]

Forgeting legal arguements for a bit, but politically sub national entities which attempt to hinder international obligations usually find themselves in deep deep deep trouble.

[Chronos]

Here's a twist on this: What if some other country adopts some bit of US law or Oklahoma law? It looks to me like Oklahoma has effectively just given everyone else in the world veto power over their laws: If Hackysackistan doesn't like some Oklahoma law, all they have to do is enact that same law themselves, thereby making it international and forcing Oklahoma courts to ignore it.

This isn't entirely hypothetical, either: I've heard, for instance, that some developing nations have adopted the US building codes. Does this mean that Oklahoma is now required to disregard the building codes?

[Odesio]

Originally Posted by Chronos

Here's a twist on this: What if some other country adopts some bit of US law or Oklahoma law? It looks to me like Oklahoma has effectively just given everyone else in the world veto power over their laws: If Hackysackistan doesn't like some Oklahoma law, all they have to do is enact that same law themselves, thereby making it international and forcing Oklahoma courts to ignore it.

I don't think that's much of a twist. Let's say Whatthefuckistan has the exact same contract laws as Oklahoma. It doesn't really matter because the Oklahoma courts are going to look at state & federal laws in regards to contracts rather than the laws of Whatthefuckistan.

[Todderbob]

Originally Posted by Pierrot Le Fou

Contracts that involve international business issues often invoke foreign law, customary international law, and treaties and agreements that may not be part be of federal law. These contracts can end up before state courts.

How are contracts that cite international law (that isn't part of US law) or treaties that aren't in force in the US enforceable within the US right now anyway?

Are you saying that I am/could theoretically be held accountable/liable/responsible under laws that my representative(s) held no part in crafting? If so, I'd support a federal ban of this sort (basically saying that judges may only consider US law, US caselaw, treaties the USA is entered into or case law/common law from colonial days (for instance, innocent until proven guilty, iirc, isn't codified, but common law -- it stays).

Originally Posted by AK84

Forgeting legal arguements for a bit, but politically sub national entities which attempt to hinder international obligations usually find themselves in deep deep deep trouble.

I don't see how oaklahoma is trying to hinder international obligations. Just trying to prevent non-US codified laws/regulations from being enforced in their state.

[Skald the Rhymer]

Originally Posted by Pierrot Le Fou

What exactly do you think McCulloch has to do with the Oklahoma amendment? McCulloch was about Congress's power to form a bank and that Maryland did not have the power to destroy the bank with a tax. I see no relevance.

Which part of "I'm sure an actual lawyer will come along & school me" was unclear?

Anyway, I was thinking tha't McCulloch established the supremacy of federal over state law where the two conflict.

[Todderbob]

Originally Posted by Skald the Rhymer

Which part of "I'm sure an actual lawyer will come along & school me" was unclear?

Anyway, I was thinking tha't McCulloch established the supremacy of federal over state law where the two conflict.

That was actually established in the constitution iirc. Or are you talking about case law confirmation?

Edit:

Found it.

THE SUPREMACY CLAUSE Article. VI. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.

[tomndebb]

Originally Posted by Pierrot Le Fou

Contracts that involve international business issues often invoke foreign law, customary international law, and treaties and agreements that may not be part be of federal law. These contracts can end up before state courts.

Originally Posted by Todderbob

Are you saying that I am/could theoretically be held accountable/liable/responsible under laws that my representative(s) held no part in crafting? If so, I'd support a federal ban of this sort. . . .

If you enter into a contract with an entity outside the U.S., you have chosen to place yourself under the laws that govern that contract. This is not the case of some Oklahoma citizen suddenly being held accountable to some foreign power. If you actually wish to impose a federal law imposing such restrictions, you are merely saying that you want the U.S. to cease all foreign trade, both import and export, (because no foreign company is going to operate under conditions in which its own laws have no say, whatsoever).
That is being pretty silly.

Originally Posted by Todderbob

I don't see how oaklahoma is trying to hinder international obligations. Just trying to prevent non-US codified laws/regulations from being enforced in their state.

They are not trying to hinder international obligations; they are simply engaging in a bit of baseless paranoid xenophobia, but the unintended consequences of their stupidity may reach a bit further than they intended.

[Todderbob]

Originally Posted by tomndebb

If you enter into a contract with an entity outside the U.S., you have chosen to place yourself under the laws that govern that contract. This is not the case of some Oklahoma citizen suddenly being held accountable to some foreign power. If you actually wish to impose a federal law imposing such restrictions, you are merely saying that you want the U.S. to cease all foreign trade, both import and export, (because no foreign company is going to operate under conditions in which its own laws have no say, whatsoever).
That is being pretty silly.

They are not trying to hinder international obligations; they are simply engaging in a bit of baseless paranoid xenophobia, but the unintended consequences of their stupidity may reach a bit further than they intended.

I understand a little better, tomndebb, thank you. However, I'm unclear as to why, if the contract was entered into out of the USA or under a jurisdiction that isn't the American, why American courts would be ruling? Wouldn't that relegate the American Court system arbitrator of foreign laws? Doesn't it make more sense to have the claimant/defendant do their legal business in the country in question, do their legal stuff via proxy (in said country) or simply have them use a non-judicial arbitrator?

I'm not trying to be intentionally obtuse, but I'm genuinely baffled as to why it's so important that judges on the bench in the USA be allowed to to rule on foreign laws.

[Spoons]

Originally Posted by Todderbob

I understand a little better, tomndebb, thank you. However, I'm unclear as to why, if the contract was entered into out of the USA or under a jurisdiction that isn't the American, why American courts would be ruling? Wouldn't that relegate the American Court system arbitrator of foreign laws? Doesn't it make more sense to have the claimant/defendant do their legal business in the country in question, do their legal stuff via proxy (in said country) or simply have them use a non-judicial arbitrator?

I'm not trying to be intentionally obtuse, but I'm genuinely baffled as to why it's so important that judges on the bench in the USA be allowed to to rule on foreign laws.

Contracts often contain a clause stating that the contract will be governed by the law of _____ (insert the parties' chosen jurisdiction in the blank). In other words, the contract states that in case of dispute, the parties have agreed to settle the dispute using the laws of _____. As a tech-savvy consumer, you've no doubt seen this kind of clause a lot in software EULAs, but it certainly is not exclusive to those agreements.

Speaking in very general terms, if you took a contract with such a clause to a court not in the stated jurisdiction, the court typically will refuse to resolve the dispute. After all, the contract is evidence that the the parties agreed to its terms and conditions--including agreeing that the jurisdiction of _____ would resolve the dispute. But this is not necessarily always the case, depending on a number of circumstances; and of course, if such a clause is not inserted in a contract, a party with a contractual problem can take it to whatever jurisdiction he or she feels is best. Who may or may not hear it; again, depending on circumstances.

I think your question is really dealing with what are known as "conflict of laws" situations. These are situations where, for example, a resident of jurisdiction A has a dispute with a resident of jurisdiction B over an event that occurred in jurisdiction C. Whose laws govern the resolution of such an event? Sometimes, a court in jurisdiction A is indeed called upon to resolve a dispute using the laws of jurisdictions B or C. But determining whether or not this can happen can be difficult. As the link should demonstrate, Conflict of Laws can be an extremely complex topic; and as such, your question is not easy to answer here.

[Whack-a-Mole]

Seems to me it comes down to enforceability.

If I am doing business with someone in the UK and I sue them in the US and I win I doubt the UK is going to accept a letter from my attorney to seize some assets of one of their citizens. If I want to get recompense I need to sue the person in the UK. (I suppose if the person in the UK has assets in the US then the US could go after that without involving UK courts).

Likewise if this person wants to sue me and expect to recover then they need to do it in the US.

That said I am willing to bet international contracts often specify what court in what country is applied if there is a dispute.

I guess I need a lawyer here to walk me through the following as it would be in Oklahoma with its new law:

Imagine a sign a contract with someone in Whathefuckistan to provide Product-X and the contract stipulates that Product-X comports with Sharia Law.

I fail to abide by the terms of the contract and get sued (remember I am in Oklahoma).

Now, on the one hand we have contract law. I would think Oklahoma, despite their new law, would tell me I agreed to provide Product-X and I did not do that as stipulated in the contract. Therefore I lose.

But then does the OK law extend to this? Does the OK court say, "Well, the Sharia Law part of the contract, even though you agreed to it, is unenforceable in Oklahoma so we are tossing that part. Therefore Whack-a-Mole is not in breach of contract."

(Again note I am asking...I do not know)

[Todderbob]

Originally Posted by Whack-a-Mole

Seems to me it comes down to enforceability.

If I am doing business with someone in the UK and I sue them in the US and I win I doubt the UK is going to accept a letter from my attorney to seize some assets of one of their citizens. If I want to get recompense I need to sue the person in the UK. (I suppose if the person in the UK has assets in the US then the US could go after that without involving UK courts).

Likewise if this person wants to sue me and expect to recover then they need to do it in the US.

That said I am willing to bet international contracts often specify what court in what country is applied if there is a dispute.

I guess I need a lawyer here to walk me through the following as it would be in Oklahoma with its new law:

Imagine a sign a contract with someone in Whathefuckistan to provide Product-X and the contract stipulates that Product-X comports with Sharia Law.

I fail to abide by the terms of the contract and get sued (remember I am in Oklahoma).

Now, on the one hand we have contract law. I would think Oklahoma, despite their new law, would tell me I agreed to provide Product-X and I did not do that as stipulated in the contract. Therefore I lose.

But then does the OK law extend to this? Does the OK court say, "Well, the Sharia Law part of the contract, even though you agreed to it, is unenforceable in Oklahoma so we are tossing that part. Therefore Whack-a-Mole is not in breach of contract."

(Again note I am asking...I do not know)

I don't think your example holds. The idea that the product has to meet certain criteria is okay (even if that criteria is determined by Sharia law) is seems kosher (from the sound of the law... I could be wrong). What you can't do is have the contract under sharia law.


Also, US/UK tend to honor each others judicial rulings... Don't they? If a company has it's assets frozen/seized in the states, isn't there a treaty between the US & most other countries (that we have good diplomatic relations with) like extradition?


What I still don't get here is why US judges should be ruling on contracts that are written under foreign laws? Why not simply force all foreign contracts to be funneled through an arbitration process? US judges should be... I don't know, working on US law, no?

[Spoons]

Originally Posted by Todderbob

Also, US/UK tend to honor each others judicial rulings... Don't they? If a company has it's assets frozen/seized in the states, isn't there a treaty between the US & most other countries (that we have good diplomatic relations with) like extradition?

International treaties generally don't cover things like private agreements between individuals or companies. Unless the US government is a party to the contract, it won't step in and try to enforce a private individual's contractual rights in a foreign jurisdiction--this involves the concept of privity of contract. Again, I'm speaking very generally, and there are exceptions to the privity principle.

Understand the difference between private law and public law. Public law involves disputes between states and/or people and governments: criminal law and constitutional law are the perfect examples. Private law is law between individuals (and note I'll consider a company to be an individual, and a government also if it is party to a contract). Contract law and tort law would be examples of private law. In my post above, I mentioned "conflict of laws," and it is worth noting that the topic is sometimes called private international law. This is a better descriptor, I think, because it clearly indicates that governments have little if any involvement in private international contracts.

That being said, however, some jurisdictions do have agreements in place to recognize (and enforce) the judgments of other jurisdictions. For example, the Canadian province of Alberta reciprocates with the American state of Montana in recognizing and enforcing each other's judgments (cite). But even when this is necessary, procedure must be followed: generally, the foreign judgment must first be registered with a court in the jurisdiction where it is to be enforced. This is a simple procedural step, but a necessary one, as it allows enforcing creditors (for example) to prove to debtors, bailiffs, and necessary others that the local court is aware that a foreign judgment will be enforced in its jurisdiction. But that's all the local court will do; as I mentioned above, it has no power to call upon the local government to enforce the foreign judgment on behalf of the enforcing party.

[Pierrot Le Fou]

Here is a common situation. A German company and an American company enter a shipping contact. They choose to have British law applied to the contract (British law is considered to very sophisticated in shipping law and is commonly applied in international shipping contracts). British will not have jurisdiction over the contract despite the parties' choosing British law (British courts might have jurisdiction for some other reason).

There are now numerous courts which may have proper jurisdiction. If there is a breach, the American party (assume they are Oklahoma company) can bring the case in their state and assuming the German company does business in Oklahoma, Oklahoma is a proper jurisdiction. Normally, the state court would apply the choice of law provision unless it the violates state's public policy. Now it appear all use of foreign law violates Oklahoma's public policy.

And are numerous other choice of law provisions that now appear to violate Oklahoma public policy.

[Pierrot Le Fou]

Originally Posted by Spoons

Speaking in very general terms, if you took a contract with such a clause to a court not in the stated jurisdiction, the court typically will refuse to resolve the dispute.

We are discussing a choice of law provision, not a forum selection clause. If the court has proper jurisdiction, it has proper jurisdiction. It might transfer the case for under a forum non conveniens analysis, but assuming the parties have chosen a nation's laws that does not have jurisdiction over the contract, there might not be any reason to transfer the case. For example, a contract where a German company and an American company select British law.

[Whack-a-Mole]

Originally Posted by Pierrot Le Fou

We are discussing a choice of law provision, not a forum selection clause. If the court has proper jurisdiction, it has proper jurisdiction. It might transfer the case for under a forum non conveniens analysis, but assuming the parties have chosen a nation's laws that does not have jurisdiction over the contract, there might not be any reason to transfer the case. For example, a contract where a German company and an American company select British law.

So if I and another party decide to have Groovefunkistan's laws apply to our contract, even if neither of us otherwise has any business or citizenship with Groovefunkistan, the Groovefunkistan judicial system will be happy to try the case?

Seems weird.

Particularly since it seems a way to skirt laws you find inconvenient. Just decide on a country with laws favorable to you. Doubtless some tin pot dictatorships would be happy to arrange things favorably for your business assuming you provide some nice incentives.

[Pierrot Le Fou]

Originally Posted by Whack-a-Mole

So if I and another party decide to have Groovefunkistan's laws apply to our contract, even if neither of us otherwise has any business or citizenship with Groovefunkistan, the Groovefunkistan judicial system will be happy to try the case?

No. A court with proper jurisdiction will apply Groovefunkistan's laws.

Keep in mind that with an international contract, multiple courts might have proper jurisdiction. A choice of law provision assures that the same law will be applied no matter which court an action is brought brought before.

[Pierrot Le Fou]

Originally Posted by Whack-a-Mole

Particularly since it seems a way to skirt laws you find inconvenient. Just decide on a country with laws favorable to you. Doubtless some tin pot dictatorships would be happy to arrange things favorably for your business assuming you provide some nice incentives.

The other party probably will not enter that contract. Further, a court can refuse to apply foreign law if it violates its jurisdiction's public policy (which apparently all foreign and international does in Oklahoma.)

[Whack-a-Mole]

Originally Posted by Pierrot Le Fou

The other party probably will not enter that contract. Further, a court can refuse to apply foreign law if it violates its jurisdiction's public policy (which apparently all foreign and international does in Oklahoma.)

How does that work then? (Note I am not trying to bust your chops...I am genuinely confused which is nothing new.)

The US has all sorts of public policies in place for things like worker's rights (e.g. child labor laws, worker safety, pollution, etc.) that Groovefunkistan may not care about. They may be happy to let little kids work for a pittance in unsafe conditions and dump toxic waste into the nearest river.

How would, say, a US court apply Groovefunkistan laws when so much of their public policy is at odds with ours?

As an example say the contract specifies that worker wages should be kept below $0.50/day and the only people who can do the job are 6-8 year olds whose hands are small enough to do the required work (in WWII Germany used little kids in munitions production because they had little hands so such things happen). The company decides to buy an expensive machine to do the work and a contract dispute ensues in US court.

What happens then?

[Pierrot Le Fou]

Originally Posted by Whack-a-Mole

How would, say, a US court apply Groovefunkistan laws when so much of their public policy is at odds with ours?

As an example say the contract specifies that worker wages should be kept below $0.50/day and the only people who can do the job are 6-8 year olds whose hands are small enough to do the required work (in WWII Germany used little kids in munitions production because they had little hands so such things happen). The company decides to buy an expensive machine to do the work and a contract dispute ensues in US court.

What happens then?

Those provisions would be void.

International business contracts don't really do things like that with choice of law provisions. The parties are sophisticated enough to not pick laws that will just be void. What they are trying to do is assure that when multiple courts have proper jurisdiction that the same law will be applied no matter which court an action is brought brought before. Other wise, they cannot assess the contract's risk.

[Pierrot Le Fou]

Now, one thing parties can do is always choose Oklahoma law for any contract that might come before an Oklahoma court. But parties do not just pick British law for shipping contracts because they like British law; they do it because British law has a huge body of law that involves shipping issues. This makes it easy to determine the risk involved in the shipping contract. Oklahoma might have few decisions that address shipping, leaving multiple issues that will be matters of first impression. Again, this makes it difficult to assess the contract's risk.

This problem will apply to multiple contract types.

[Whack-a-Mole]

Originally Posted by Pierrot Le Fou

The parties are sophisticated enough to not pick laws that will just be void. What they are trying to do is assure that when multiple courts have proper jurisdiction that the same law will be applied no matter which court an action is brought brought before. Other wise, they cannot assess the contract's risk.

If they pick language that will be adjudicated the same no matter where the law is heard then why the need to pick a given country at all?

You noted the UK has an extensive body of law on shipping but presumably their law is not at odds with anyone else's. They just have more caselaw to point to for precedent. I would think a US court faced with the same issue that does not have a precedent in the US would look elsewhere and say, "Well, the UK is similar to us and they have been down this road before so we will look to it for guidance and apply it here as long as it is in line with US law."

If the foreign law is so at odds with US law then you are back at square one and the US will have to make it up as it goes regardless of what law you wish to apply.

FWIW I suspect this is all very complex and a matter of several law courses in school. A forum probably is not conducive to hashing out the fiddly points but hopefully some sense can be made of it here.

[astorian]

The Oklahoma legislation probably wasn't necessary, but it DIDN'T come out of nowhere, nor are the concerns addressed completely spurious.

For starters, several U.S. Supreme Court justices HAVE cited the practices of other countries in support of their decisions.

http://www.msnbc.msn.com/id/4506232

I suspect that, given the makeup of the SDMB regulars, most Dopers would APPROVE of the opinions delivered. But millions of Americans were outraged.

The death penalty may be right or wrong, it may be Constitutional or it may not be. Lawyers can and do make strong cases for both sides. By all means, a Supreme Court justice should rule that the electric chair is cruel and unusual, if that's what he believes. But when he tries to argue that "The death penalty should be abolished because Canada, France and the UK have abolished it," I think he's way out of line.

You want to legalize gay marriage? Get out there and launch a petition drive. But if you're trying to get the Supreme Court to impose it by fiat, on the grounds that Sweden and Holland have already legalized gay marriage, you're way out of line.

American court decisions should be based on American law, period.


As for sharia, there probably wasn't much danger of its widespread use in Oklahoma... but sharia HAS been spreading around the world, often by stealth.

http://news.bbc.co.uk/2/hi/americas/4236762.stm

In many Western countries, efforts HAVE been made to introduce sharia as a supplement/complement to secular law. In Ontario, for instance, the attorney general recommended allowing Muslims to use sharia instead of secular, Canadian courts for a host of matters.

No,. it didn't happen- but MANY people around the world were horrified by the concept.

The people of Oklahoma don't want foreign laws (be they Dutch or Islamic) to be imposed upon them by courts. That's NOT unreasonable, in my opinion.

[Pierrot Le Fou]

Originally Posted by Whack-a-Mole

If they pick language that will be adjudicated the same no matter where the law is heard then why the need to pick a given country at all?

It will only be adjudicated the same way if the same law is applied.

You noted the UK has an extensive body of law on shipping but presumably their law is not at odds with anyone else's.

This assumption is almost surely wrong. Every jurisdiction's law varies in subtle and significant ways.

They just have more caselaw to point to for precedent. I would think a US court faced with the same issue that does not have a precedent in the US would look elsewhere and say, "Well, the UK is similar to us and they have been down this road before so we will look to it for guidance and apply it here as long as it is in line with US law."

Oklahoma courts cannot do this anymore.

If the foreign law is so at odds with US law then you are back at square one and the US will have to make it up as it goes regardless of what law you wish to apply.

The foreign law is only void if violates public policy. Requiring child labor violates public policy. But for something like determining the period a shipper is responsible for goods, there is no public policy. So if a New York court was looking at a contract that chose British law, they would not find a British law void on determining the period a shipper is responsible for goods even if New York and British law disagree. They will apply British law.

Foreign law can only violate public policy on deeply held convictions: slavery, child labor, legal wage, discrimination.

[Pierrot Le Fou]

Originally Posted by astorian

The people of Oklahoma don't want foreign laws (be they Dutch or Islamic) to be imposed upon them by courts. That's NOT unreasonable, in my opinion.

What do you think about this amendment's effect on business contracts?

[smithsb]

You are overthinking this ballot question. It actually reads (in the minds of my fellow Okie morons); "blah, blah, blah, screw international law, blah, blah, screw muslims". That's how it was voted on. Most of the international law issues already have court president. Yes, it won't do much for enticing foreign investments but we don't like "furriners" any way. This measure was mostly for expressing Islamophobia.

Another example of the fear and hate from the ballot measure writers - English will be the only language used for all state business. Forget accomodation of minorities. "Whoops, we forgot our Indian tribes that we have treaties and agreements with - I guess we'll make exception for twenty or thirty native american languages but we sure as hell won't allow Spanish or Tex-mex or whatever the hell all them illegal immigrants are speaking."

Another example. Ballot measure to fight "Obamacare". Another easy pass even though an independant analysis indicated the state would save money and cover more citizens.

Still more but you get the picture. Fear and loathing in Oklahoma. I can't wait to retire and get the hell out. In many respects, its more backward here then in my previous stateside residence - Alabama. Perhaps it's a tie at the bottom.
There were no sanity rallies held in this state.

[Rand Rover]

Just to provide some historical context--every law student can tell you about several cases in which the Oklahoma supreme court looks like complete idiots. Two that come to mind are as follows:

1. A guy buys a Volkswagen in New Jersey, drives it to Oklahoma, and the Volkswagen blows up. The guy sues everyone that had anything to do with the Volkswagen in an Oklahoma court. Can the lawsuit impose a binding judgment on these people, even though they have nothing to do with Oklahoma? The Oklahoma supreme court says yes, SCOTS says no.

2. Oklahoma decides that the legal drinking age for men is 18 and women is 21. The Oklahoma supreme court is OK with that, SCOTUS is not.

So, dumbassery in the law in OK ain't a new thing.

[UDS]

Does the amendment fall foul of the equal protection and/or establishment clauses? I mean, it forbides OK courts from considering Sharia law, but not from considering, e.g., Jewish customary law, or the canon law of any Christian denomination. Is that not a problem?

[Todderbob]

Originally Posted by Pierrot Le Fou

We are discussing a choice of law provision, not a forum selection clause. If the court has proper jurisdiction, it has proper jurisdiction. It might transfer the case for under a forum non conveniens analysis, but assuming the parties have chosen a nation's laws that does not have jurisdiction over the contract, there might not be any reason to transfer the case. For example, a contract where a German company and an American company select British law.

Originally Posted by Pierrot Le Fou

Now, one thing parties can do is always choose Oklahoma law for any contract that might come before an Oklahoma court. But parties do not just pick British law for shipping contracts because they like British law; they do it because British law has a huge body of law that involves shipping issues. This makes it easy to determine the risk involved in the shipping contract. Oklahoma might have few decisions that address shipping, leaving multiple issues that will be matters of first impression. Again, this makes it difficult to assess the contract's risk.

This problem will apply to multiple contract types.

Thank you, Pierrot Le Fou, for the explanation.

I still don't disagree with the law. It may not make a ton of sense -- or have a hell of a lot of effect -- but it doesn't on it's face violate any moral, legal or ethical standards. It makes things more difficult for contract negotiations regarding business... But (IMO) in a perfectly acceptable way. It's entirely within Oaklahoma, or any states rights (again, IMO) to only allow business contracts (rather, only enforce contracts) within the state that reflect state/federal law.

It might result in protectionist-esque economic results... But it is within the states rights, at least seems like it should be.

[tomndebb]

Originally Posted by UDS

Does the amendment fall foul of the equal protection and/or establishment clauses? I mean, it forbides OK courts from considering Sharia law, but not from considering, e.g., Jewish customary law, or the canon law of any Christian denomination. Is that not a problem?

Actually, it singled out Sharia, but its inelegant wording precluded any law that was not indigenous to U.S. statue or culture--prompting the parallel thread that asked whether the citizens of Oklahoma had just screwed themselves out of judicial decisions that invoked the Ten Commandments.

[Pierrot Le Fou]

Originally Posted by Todderbob

It might result in protectionist-esque economic results... But it is within the states rights, at least seems like it should be.

I don't see any obvious reason they cannot do it. I just think it is a stupid thing to do. I don't think they considered the effect the amendment would have on international contracts.

[ruadh]

Originally Posted by astorian

But if you're trying to get the Supreme Court to impose it by fiat, on the grounds that Sweden and Holland have already legalized gay marriage, you're way out of line.

There's a difference between trying to impose a foreign interpretation by fiat, and finding support for an interpretation in a foreign one. Gay marriage is a good example because opponents of it have often said "But marriage is SUPPOSED to be between a man and a woman". Showing that many other jurisdictions don't apply such a limited interpretation undermines this argument - it demonstrates that the definition of marriage is not, in fact, inevitably what opponents say it is.

I'm sure state courts do this sort of thing all the time. It's certainly done all the time in the common law world. Decisions of the British courts are not binding on Irish or Canadian courts, but they're often cited as persuasive authority and frequently do have an influence on the decision that judges in those countries make. The judges are equally free to decide that the British decisions are wrong or incompatible with domestic law.

The idea that US courts should never look to foreign law is just another example of US exceptionalism, and of how Americans need to get over ourselves.

[Spoons]

Originally Posted by Whack-a-Mole

FWIW I suspect this is all very complex and a matter of several law courses in school. A forum probably is not conducive to hashing out the fiddly points but hopefully some sense can be made of it here.

You're right about that. A course in Conflict of Laws was mandatory at my law school; and after studying the topic, I doubt that we can hit all the nuances in this forum.

Originally Posted by astorian

For starters, several U.S. Supreme Court justices HAVE cited the practices of other countries in support of their decisions.

[link omitted; look above for it]

I suspect that, given the makeup of the SDMB regulars, most Dopers would APPROVE of the opinions delivered. But millions of Americans were outraged.

They should not be surprised. The courts of all common-law countries frequently find cases decided in other common-law countries to be persuasive (though not binding) on their decisions. When stare decisis is used, as it is in common-law precedents, it would be inconsistent for one country's courts to decide something that is completely at odds with a situation that has identical facts and a given decision in another country. (Constitutional questions can provide reasonable differences of opinion, however; owing to different wording in different constitutions.) In terms of private law, though, the sad fact, as you or other Americans may regard it, is that stare decisis rules: like decides like, and one common-law country cannot insulate itself from the decisions of another.

The death penalty may be right or wrong, it may be Constitutional or it may not be. Lawyers can and do make strong cases for both sides. By all means, a Supreme Court justice should rule that the electric chair is cruel and unusual, if that's what he believes. But when he tries to argue that "The death penalty should be abolished because Canada, France and the UK have abolished it," I think he's way out of line.

I agree. But this is not a matter for courts--it is a matter for legislatures, for Congress, for Parliaments. They are the ones who debate and pass statutes regarding this, and other, issues. If Congress, or for that matter, the legislature of (for example) California, passes a statute allowing the death penalty, then no amount of "Canada doesn't do it, France doesn't do it," and so on, should hold any sway. In the various states of the US, the death penalty is legal, and no common-law or statutory precedent from a foreign common-law jurisdiction will override the statutes legally passed by the state in question.

That being said, I will admit that I, personally, find the death penalty abhorrent. However, I also recognize the legal existence of the jurisdiction in question (e.g. again, California); and if the legislature of the state in question decides to legally (i.e. through a democratically-elected legislature or similar) have the death penalty on its books; well, then, not much I can say about that. I am a Canadian lawyer, only licensed to practice in the province of Alberta; but I have no legal standing in California, or indeed, any state of the Union.

American court decisions should be based on American law, period.

Here's where I disagree. Sure, American law is fine, as long as it upholds the principles that have descended from English law through the centuries. But I doubt very much that an American court would find that the principles in, for example, Lampleigh v. Braithwaite (1615) Hobart 105, 80 ER 255, should be overturned simply because "they're not American law." Lawyers would revolt if any court tried!

Beyond that though, I will admit that you have a point. But only insofar as any jurisdiction has a body of law that can decide its own cases. To the best of my knowledge, American law students still study Carlill v. Carbolic Smoke Ball Company, [1892] EWCA Civ 1, which is an England and Wales Court of Appeal case that lays down the principles underlying unilateral contracts. If you want to rely on an American decision regarding a unilateral contract that does not somehow refer to Carbolic Smoke Ball, well, good luck finding a case that does not hearken back somehow to Carbolic Smoke Ball. Similarly, I think that no American court should shy away from at least considering other common-law jurisdictions' decisions, if the facts are substantially similar. You may disagree, but I'd guess that even American lawyers would admit that Americans are not so unique that decisions regarding them must be adjudicated differently, especially in matters of private law.

In many Western countries, efforts HAVE been made to introduce sharia as a supplement/complement to secular law. In Ontario, for instance, the attorney general recommended allowing Muslims to use sharia instead of secular, Canadian courts for a host of matters.

No,. it didn't happen- but MANY people around the world were horrified by the concept.

So were Ontarians; and indeed, all Canadians. As a result, all religious-based arbitration methods (including Jewish arbitration methods, which had been in place for quite some time) were disallowed.

Not disagreeing with you overall; just trying to put more informed information into the discussion, and clear up any misconceptions and correct any misinformation that may be prevalent in your circle.

[UDS]

Originally Posted by Spoons

As a result, all religious-based arbitration methods (including Jewish arbitration methods, which had been in place for quite some time) were disallowed.

Wasn't aware of the Ontario experience, but when I saw the OK amendment my immediate thought was "How does this affect a Beth Din?"

[Spoons]

Originally Posted by UDS

Wasn't aware of the Ontario experience, but when I saw the OK amendment my immediate thought was "How does this affect a Beth Din?"

In Canada, the Beth Din's decision would likely be disallowed, unless both parties agreed to its decision in front of a judge of a neutral court: provincial or Queen's Bench/Superior Court, as appropriate. If one party disagreed with the religious body's decision in front of the judge, it would not stand; and I'd guess that the matter would have to be decided upon by the (neutral) Court; or by a neutral, non-religious, arbitrator.

Note that this is only my guess; I have no experience in these matters.

[Todderbob]

Originally Posted by ruadh

The idea that US courts should never look to foreign law is just another example of US exceptionalism, and of how Americans need to get over ourselves.

I'm as, or more, anti-American exceptionalism as the next guy, but the idea that American judges should use American laws and precedents in our court cases isn't American exceptionalism. It's the same reason we don't let Ohioans vote in Californian elections. Not Californian exceptionalism, but Californian Government isn't the same as Ohioan Government.

Sure, they are very similar (far more than two separate countries), but they're not the same. There's nothing inherent wrong with citing a foreign decision, but it's absolutely not necessary or preferred.

[Ionizer]

Its been blocked already. See here

From the article:
U.S. District Judge Vicki Miles-LaGrange handed down the order after an Oklahoma man filed a lawsuit claiming the amendment stigmatized his religion and would invalidate his will, which he said is partially based on Islamic Law, also known as Sharia Law.

"My constitutional rights are being violated through the condemnation of my faith," said Muneer Awad, executive director of the Council on American-Islamic Relations in Oklahoma. "Islam was the target of this amendment. This amendment does not have a secular purpose."


I hope this carries some legal 'weight', but I have no idea at all. Just posting it here for those 'in the know' to comment upon...

[BrainGlutton]

Originally Posted by The Second Stone

International law is sometimes based on treaties that the US has formally joined, which makes it binding law that the states cannot ignore.

I have a good friend who lives in Oklahoma who is convinced that the state is populated with morons.

Empedocles the Cretan says all Cretans are liars.

[Todderbob]

Originally Posted by Ionizer

Its been blocked already. See here

From the article:
U.S. District Judge Vicki Miles-LaGrange handed down the order after an Oklahoma man filed a lawsuit claiming the amendment stigmatized his religion and would invalidate his will, which he said is partially based on Islamic Law, also known as Sharia Law.

"My constitutional rights are being violated through the condemnation of my faith," said Muneer Awad, executive director of the Council on American-Islamic Relations in Oklahoma. "Islam was the target of this amendment. This amendment does not have a secular purpose."


I hope this carries some legal 'weight', but I have no idea at all. Just posting it here for those 'in the know' to comment upon...

Now there is an interesting, unintended consequence.

Although I don't see how/why that would invalidate his Will, unless he was nonspecific in who got what in his will and just said "divide it up according to Sharia Law."

[Whack-a-Mole]

Originally Posted by Todderbob

Although I don't see how/why that would invalidate his Will, unless he was nonspecific in who got what in his will and just said "divide it up according to Sharia Law."

Well, if the guy on his own said, "Item-A goes to my wife, Item-B goes to my son, etc." and that was in compliance with Sharia law no court would care. He can give his stuff away as he sees fit for whatever reasons he wants.

However, if the guy says, "I want my assets sold in compliance with Sharia law and divided up in these percentages to these people/groups also in compliance with Sharia law" then presumably the OK courts would have to ignore that. Particularly if the will is contested.

[UDS]

Originally Posted by Todderbob

Now there is an interesting, unintended consequence.

How is it unintended? If the amendment is not aimed at preventing people from regulating their affairs by reference to Sharia principles, then what is it for?

[E-Sabbath]

And, I rather suspect this gentleman rewrote his will recently to make it specific about sharia law, in order to be able to file suit.
Good on 'im.

[ruadh]

Originally Posted by Todderbob

I'm as, or more, anti-American exceptionalism as the next guy, but the idea that American judges should use American laws and precedents in our court cases isn't American exceptionalism. It's the same reason we don't let Ohioans vote in Californian elections.

Bad analogy. As I and another poster have pointed out, the use of decisions from other jurisdictions as persuasive authority is a feature of the common law world. I'm not aware that you can say the same about allowing non-residents to vote in elections.