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.
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.
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.
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.
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.
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.
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.
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.
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.
It will only be adjudicated the same way if the same law is applied.
This assumption is almost surely wrong. Every jurisdiction’s law varies in subtle and significant ways.
Oklahoma courts cannot do this anymore.
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.
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.
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:
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.