The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[Contrary to the view of some, this is not what happens when California courts use the law of a foreign country—even when it is based on Islamic law—under normal choice-of-law principles.]
[A.] First, a bit of background: Say that I live in Oklahoma, and work at a plant in Oklahoma, where I'm exposed to some injurious chemicals (say, asbestos). Some years later, I move to California and then get sick, allegedly because of this exposure.
I sue in California court—a logical place, since this is where now I live, and (let's assume) where the defendants have their principal place of business, so it's not unfair to subject them to California courts' jurisdiction. But California tort law is considerably more plaintiff-friendly than Oklahoma tort law in various ways. Should California courts decide the case applying California law or Oklahoma law?
Generally speaking (though with some potential exceptions), the answer is Oklahoma law, as the California Supreme Court held in McCann v. Foster Wheeler LLC (Cal. 1994). (Most other states take the same view.) Businesses that are dealing with Oklahomans in Oklahoma should be able to rely on their conduct being evaluated under Oklahoma law, regardless of where the Oklahomans might later move. And Oklahoma courts and legislators should be able to assure businesses that, if they locate in Oklahoma, they will be subject to the Oklahoma-specified standards of liability (as modified by federal law, if federal law applies):
Because a commercial entity protected by [a particular Oklahoma statute] has no way of knowing or controlling where a potential plaintiff may move in the future, subjecting such a defendant to a different rule of law based upon the law of a state to which a potential plaintiff ultimately may move would significantly undermine Oklahoma's interest in establishing a reliable rule of law governing a business's potential liability for conduct undertaken in Oklahoma.
The same applies if I'm a Frenchman working in France, or a Dominican Republic citizen working in the Dominican Republic. (McCann favorably cites cases involving conduct in both countries.) California courts would have to then apply French law or Dominican Republic law—that may not always be easy, since the laws are unfamiliar and in a foreign language, but courts would be able to consult experts or treatises, and do the best they can. Indeed, foreign law will often apply even when a tort is committed against a California citizen in a foreign country, but the matter is more complex there, which is why I'm focusing in this post on a tort committed against a foreign country's citizen in that country.
[B.] In late October, a California court applied the same approach with regard to Iranian law, and I think the decision is a very good illustration of how these things should be done. (The case has only recently hit the news, and I learned about it thanks to Blaise Scemama of the L.A. Daily Journal.) Here is the heart of the decision, titled "Ruling on Iranian Law," Sabetian v. Air & Liquid Sys. Corp. (L.A. Superior Ct. Oct. 24, 2018):
Plaintiffs allege Houshang Sabetian suffered asbestos exposures while working at oil refineries and oil fields in Iran from 1959 to 1979. The refineries and oil fields were owned by the Iranian Government.
At issue here are two motions to apply Iranian law filed by Foster Wheeler, LLC, Exxon Mobil Corporation, and ExxonMobil Oil Corporation. The motions seek application of Iranian law to the negligence standard of care, strict liability, joint and several liability, compensatory damages, and punitive damages….
The court cited the McCann v. Foster Wheeler case I discussed above, and concluded that it should generally apply Iranian law, because "the state [or country] where the tort occurs possesses the predominant interest in having its law applied," especially when the plaintiff was a citizen of that state or country at the time the tort was committed. It then went on to discuss the particular legal rules that might be relevant:
While [Iranian] laws differ in some ways from those of California, they do not seem out of touch with laws for compensation in other Civil Law jurisdictions. Moreover, the Government of Iran would have had a strong interest in applying its own laws to a refinery it owned and an employee that it employed. At the time of his alleged exposure to asbestos, Mr. Sabetian and his wife were citizens of Iran, and he worked for the Iranian-owned National Iranian Oil Company…. California has little interest in legislating behavior at such refineries and oil fields.
The greatest difficulty in applying Iranian law in this case … is presented by the differences in language and the two systems, and the comparatively lesser development of Iranian law in the context of a jury trial. Moreover, the Court is naturally impaired in understanding the law of a foreign jurisdiction. The Court will address each question as to which the Defendants seek to apply Iranian law.
[1.] Negligence Standard of Care. The competing experts seem to agree that Iran's standard of care is based on "custom and usage," rather than the reasonable person standard as articulated in CACI Instruction 401. Nevertheless, the Court declines to apply this aspect of Iranian Law. Although it is boldly and clearly stated in Iran's Civil Code, there is a lack of authoritative decisional or explicative law that could explain just what is meant by "custom and usage." Does this mean the "custom and usage" of the reasonably careful person, or the reasonably careful oil professional in Iran? Can the custom and usage of the industry worldwide be considered? The evidence does not present a clear enough distinction to formulate jury instructions that will provide answers to these and other questions under Iranian law. While resort could be had to a treatises on Iranian law, the Court is not comfortable placing as great a reliance on such treatises as Iranian lawyers apparently do. The Court therefore declines to apply this aspect of Iranian law.
[2.] Strict Liability. Defendants' expert … establishes that there is no strict liability in Iran, certainly not during the relevant time period. Plaintiffs' expert does not present persuasive contrary evidence. The Court can apply this law by not submitting strict liability claims to the jury. The Court accepts this application of Iranian law.
[3.] Joint and Several Liability. [Both sides' experts] seem in agreement that Iranian law does not provide for joint and several liability unless there is an explicit statutory exception. [Plaintiff's expert] argues that the there is an explicit statutory exception for persons determined to be "employers" under the Civil Responsibility Act, and this is not disputed by Defendants. It seems practical for the Court to make a post-verdict determination of whether there has been a showing of whether any of the Defendants were joint "employers" such that this provision comes into play. The Court accepts this application of Iranian law.
[4.] Punitive Damages. The Court is persuaded by [the defense expert's] declaration that Iranian law does not provide for punitive damages. [Plaintiff's expert's] contrary opinion appears to speculate about bilateral treaties affecting this determination, but he does not offer concrete evidence of a treaty that would affect [this] case. The Court accepts this application of Iranian law.
[5.] Monetary Limit on General Damages. Although the experts do not appear in disagreement that there is some sort of monetary cap on general damages, the Court declines to apply it in this case. Apparently the cap is set by reference to a memorandum prepared by unnamed Iranian government lawyers who have the power to alter the cap as they see fit. Defendants did not produce a sample determination for the Court, leaving the Court in doubt as to what the cap was and how it is determined. The cap also varies by season of the year. As such, the Court is left unsure that the cap is not so arbitrary in nature and application that it would offend fundamental due process if applied in an American court.
[6.] Prohibition on Loss of Consortium Damages. The Court was initially concerned that this limitation might also violate fundamental due process because it was applied in a manner that arbitrarily limited damages by sex. At the hearing, defense counsel persuasively argued that a prohibition on loss of consortium could apply to either sex. Nevertheless, the Court is worried that Iran does not neatly define loss of consortium in the same way that California does, and that the damages could be considered in other categories under Iranian law. Therefore, the Court finds that this prohibition is not established with sufficient clarity in Iranian law to allow for application in this case….
Where the Court is unable to ascertain Iranian law with clarity, the Court will apply California law based on California's interest as the forum state.
The Court is cognizant that this ruling differs from prior rulings in this JCCP [Judicial Council Coordination Proceeding, a set of related cases that are being litigated before different judges]. While prior courts were worried about the religious influence on Iranian law, these provisions of law appear well-established, civil, and secular in nature. All laws of civil redress have root in some religious tradition, and these laws do not radically or offensively differ from traditions in the law of the various United States.
The Court considers the question of whether to apply Iranian law to be a separate question of whether there would be a remedy for Mr. Sabetian in Iran….
I think this is generally the right approach, though, as the judge points out, some other decisions have rejected the use of Iranian law. As I wrote in late 2014,
Los Angeles Superior Court Judge Emilie Elias, however, has recently concluded that this doesn't apply when the foreign law is the law of Iran—and the rationale potentially applies to other countries that use Islamic law, including Saudi Arabia, the United Arab Emirates, Qatar and others. In Alkhas v. A.W. Chesterton Co., and, most recently, Sarooie v. Foster Wheeler, the judge reasoned that (1) because Iranian law partly incorporates Islamic law, California courts may not apply it, and (2) because "Iran is run by mullahs and lacks an independent judiciary and due process of law," Iranian law should not even be applied in California courts. Rationale 1 would squarely apply to Saudi law; rationale 2 might, too, especially since the judge stresses that the concern behind rationale 2 remains that "Iranian law, through utilization of Islamic law, fails to afford a remedy."
For an amicus brief that several law professors and I filed back then, arguing in favor of the result that the judge in Sabetian has now reached (and against the result in the Alkhas and Sarooie cases), see the last portion of my 2014 post. The amicus brief supported appellate reversal of the Sarooie case, but the Court of Appeal declined to review that order, I think likely because it was just a pretrial decision; perhaps the Sabetian case will eventually go up on appeal, and we might get an appellate decision resolving the controversy.