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:
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
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.
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.
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.
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.
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?
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.
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).
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.
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.
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.
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.
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.”
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?
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.