The Volokh Conspiracy

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Foreign Law in American Courts

United Arab Emirates Sharia-Based Judgments in American Court

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Back when the debate about foreign law—including especially Islamic law—in U.S. courts was in the news, I blogged quite a bit about it. I also wrote two law review articles on the subject, see Foreign Law in American Courts and Religious Law (Especially Islamic Law) in American Courts. My basic view was that:

  1. American courts often rightly do consider foreign law and foreign judgments, because American law calls on them to do that; and it would generally be senseless for American law to categorically block American courts from doing that.
  2. That sometimes includes the judgments of religious courts, and judgments of foreign courts applying religious law that is part of the foreign legal system.
  3. In some situations, American courts should refuse to apply foreign or religious law, or enforce the judgments of foreign or religious courts—but existing American law already has the tools needed for that.

Here's a recent illustration of this (especially item 3) from CSHK Dubai Contracting LLC v. Ali, decided last week by a Texas Court of Appeals (opinion by Justice Dana Womack, joined by Justices Elizabeth Kerr and Dabney Bassel):

This dispute—which spans multiple decades, continents, and court systems—arises out of Appellant CSHK Dubai Contracting LLC's contract with Trident International Holdings FZCO to build a residential tower in Dubai. After a dispute arose between CSHK and Trident regarding Trident's payments under the contract, CSHK initiated several legal proceedings in Dubai against Trident and Trident's founders, Appellees Sadruddin Enayat Ali, Abdul Sultan Jamal, and Wazir Ali Daridia Ultimately, CSHK obtained a judgment (the Dubai Judgment) from a Dubai court awarding it … roughly $50 million …. Because Appellees resided in Texas following the entry of the Dubai Judgment, CSHK filed a lawsuit in the Texas trial court asking that the court recognize the Dubai Judgment under the Uniform Foreign-Country Money Judgments Recognition Act (the Act). See Tex. Civ. Prac. & Rem. Code Ann. § 36A.001 et seq.

So far, makes perfect sense: Texas law generally calls for enforcing foreign judgments, which is eminently sensible in our transnational commercial system. Texas courts must do this, not because of some abstract international law principles, but because they're faithfully following the command of the Texas Legislature.

But Texas law provides that sometimes a court may conclude that a foreign judgment shouldn't be enforced, including (to oversimplify slightly) when "the defendant in the foreign-court proceeding did not receive notice of the proceeding in sufficient time to enable the defendant to defend itself," "the judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment," or "the specific proceeding in the foreign court leading to the judgment was not compatible with the requirements of due process." And the court concluded that these exceptions were indeed present here:

[Expert witness Herbert] Wolfson also explained the important and unique role of experts in the Dubai court system. He stated that while parties may agree on the selection of an expert, the "normal practice is for the court to choose the expert, without input from the litigants, by assigning the case to the next name in line on a list of experts maintained by the Dubai [c]ourts." Indeed, according to Wolfson, Dubai courts are "under no obligation to consider or give weight to the testimony of a party-appointed expert," and "in the absence of agreement by all litigants, a person or firm that is not registered on the list of experts would not normally be permitted to provide expert testimony in a Dubai court."

Notably, Wolfson explained that "courts in Dubai typically adopt the report of court-appointed experts without scrutiny, copy-pasting findings of fact and even legal conclusions into the court's judgment." Wolfson stated that under this system, "even if the court-appointed expert has no legal training, their report generally winds up being outcome-determinative not only as to questions of fact but often as to questions of law." …

Wolfson also explained the role of Islamic law—or shari'a—in the Dubai court system. He stated that "the Constitution of the [U.A.E.] states that Islamic law is a principal source of legislation in the [U.A.E.]." He noted that the civil code relied on by CSHK in the underlying Dubai proceedings "requires judges to apply shari'a principles in cases where there is no express provision in the statutory text." He cited a provision in that code requiring judges to "adjudicate according to the Islamic [s]hari'a taking into consideration the choice of the most appropriate solutions in the schools of Imam Malek and Imam Ahmad Ben Hanbal and, if not found there, then in the schools of Imam El Shafe'i and Imam Abou Hanifa, as the interest so requires." He cited another provision in the civil code that provided that "[i]n understanding, interpreting[,] and construing the text [of a statute], the rules and fundamentals of Islamic doctrine shall be followed." {Wolfson also stated that judges in Dubai "must be Muslim" and "must have a degree in law, or in shari'a and law."} …

Here, the CASD Proceeding [a particular phase of the UAE court process] and the appointment of [Dr. Redha Darwish] Al Rahma as an expert in that proceeding was a critical moment in the various Dubai proceedings…. [Yet] Appellees were not served with process in that proceeding. During the CASD Proceeding, Al Rahma repeatedly met with CSHK's counsel and representatives but did not meet with Appellees. Al Rahma then made an expert report and a supplemental expert report, giving CSHK's counsel advanced copies of the report for review. Cf. Restatement (Fourth) of Foreign Relations Law § 484 cmt. j ("A pattern of ex parte contacts between the court and one side to the dispute or similar one-sided interventions might demonstrate a lack of fundamental fairness."). In his report, Al Rahma concluded that Appellees were responsible for the decline in Trident's assets and CSHK's inability to collect its two arbitration awards.

With Al Rahma['s] report in hand, CSHK filed suit in the Dubai CFI [Court of First Instance] and ultimately obtained the 2020 Judgment…. Appellees "were never permitted to submit a controverting expert report or assert defenses." They also indicated that they "were never permitted to litigate the merits of the claims asserted against [them]" and that they had "never been afforded the opportunity to interact" with Al Rahma. See Goldberg v. Kelly (1970) ("In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses."). And while Appellees retained an expert to controvert Al Rahma's findings, they stated that their expert "was not allowed to submit his report to the court for consideration." And there is no question that Al Rahma's report played a significant role in the Dubai Judgment….

Based on those facts, we do not think that the trial court erred or abused its discretion by finding that the specific Dubai proceedings raised doubt about the integrity of the court rendering the Dubai Judgment, were not compatible with the requirements of due process, and provided inadequate notice to Appellees.

I don't know the details of the case enough to tell whether the Texas courts made the right decision on these facts. But the general framework strikes me as quite right:

  1. American law authorizes American courts to consider foreign judgments, including ones from countries which rely on Islamic law as part of their legal system. Such judgments may often be enforceable, and that makes perfect sense.
  2. American courts won't insist that the foreign legal system mirror ours. (For instance, most foreign civil justice systems don't use juries.)
  3. But American courts do require, because American law so specifies, that the foreign processes include sufficient procedural protections; and when those protections are missing, then American courts will find the foreign judgments unenforceable.