Shariah Law and American State Courts: An Assessment of State Appellate Court Cases

14. In re Marriage of Shaban, 105 Cal. Rptr. 2d 863  (Cal. Ct. App.  2001).

Shariah: Highly Relevant   TCSN; ACSN

Ahmad  (husband) and Sherifa  (wife) were married in Egypt in 1974; moved to the United States in the early 1980s; and filed for divorce in 1998.  Ahmad argued that a document signed by him and Sharifa’s father, as her proxy, constituted the parties’ pre-marital agreement to have Islamic law govern any property settlement following a divorce.  The document recited that the marriage had been concluded in accordance with Islamic law and that the two parties were aware of the legal implications of the marriage.  The trial court found the document was not a prenuptial agreement, but instead was a marriage certificate.  The trial court applied California law to the division of property.  The appellate court recognized that the document was vague about the material terms to which the husband and wife were allegedly agreeing, that there are multiple schools of Islamic legal thought that could govern the agreement, and that no particular school of Islamic legal thought was selected by the parties.  The appellate court held that the pre-marital document did not provide sufficient information about the parties’ agreement to constitute a valid pre-marital agreement.  As a result of the appellate court’s holding, California law was applied to the property division and the wife took an interest in the marital property.  The wife would have accumulated no interest in these assets under Islamic law since property acquired by a spouse during marriage remains that spouse’s separate property.

15. Saudi Basic Indus. Corp. v. Mobil Yanu Petrochem. Co., Inc. and Exxon Chem. Arabia, Inc., 866 A. 2d (Del.  2005).

Shariah: Highly Relevant   TCSY; ACSY

Saudi Basic Industries Corporation  (SABIC) entered into two joint venture agreements—one with Mobil and the other with Exxon.  Both joint venture contracts provided that the parties’ only source of profits would be from the operations of the joint ventures.  The contracts further provided that the parties would pass-through costs to the joint venture entities—without mark-up—for any technologies that were purchased from a third party and then sublicensed to the joint ventures.  However, in the year 2000, ExxonMobile discovered that SABIC had procured technology from Union Carbide, sublicensed the technology to both joint venture entities, and overcharged both joint ventures for the technology that SABIC had sub-licensed to the joint ventures.  Exxon and Mobile sued SABIC alleging that the overcharges were a breach of the joint venture agreements and a violation of the Saudi law against usurpation (ghasb). After consulting with five experts on Saudi Arabian law to determine how the law of usurpation (ghasb) would be applied in Saudi Arabia, the trial court applied Saudi law and found SABIC liable for usurpation and breach of the joint venture agreements.  The trial court awarded  $416 million to Exxon and Mobile on their usurpation claim,  $324 million of which were “enhanced” damages.  On appeal, SABIC argued that the trial court failed to properly study and understand Saudi law; and thus, erroneously instructed the jury on the Saudi law of usurpation (ghasb).  The appellate court noted that the trial court engaged in a meticulous effort to understand Islamic law as it would have been applied in Saudi Arabia and that the trial court properly considered expert testimony regarding the law of usurpation (ghasb) as it would have been applied in Saudi Arabia. The appellate court affirmed the trial court’s judgment against SABIC.

16.      Akileh v. Elchahal, 660 So. 2d 246 (Fla. Dist. Ct. App.  1996).

Shariah: Highly Relevant   TCSN;  ACSY

Akileh (wife), her father, and Elchahal (husband) agreed that, in return for Akileh’s hand in marriage, Elchahal would enter into an antenuptial  agreement called a “sadaq.”  Under the terms of the sadaq, Elchahal was to pay Akileh $50,001—$1 was paid immediately and the remaining $50,000 was deferred to an uncertain, later date.  After the sadaq was signed, Akileh and Elchahal were married in December 1991.  In 1993, Akileh filed for divorce after she contracted a venereal condition from Elchahal.  The issue of whether Elchahal was liable to pay the remaining $50,000 to Akileh under the terms of the sadaq was to be decided at the couple’s divorce trial.  Akileh testified it was her understanding that the wife forfeits her sadaq only if she cheats on her husband.  Elchahal testified that he believed the sadaq is forfeited if the wife initiates the divorce.  The trial court ruled that the sadaq was unenforceable because the parties had failed to agree on the sadaq’s essential terms.  The trial court further stated that if the parties had agreed on the essential terms of the sadaq, then the court would essentially agree with Elchahal’s version of when the sadaq is forfeited and not order Elchahal to pay the deferred amount because the court would find that the purpose of the sadaq was to “protect the wife from an unwanted divorce.” Under the trial court’s ruling, Akileh would forfeit the deferred $50,000 because she initiated the divorce.  The appellate court held that the sadaq was enforceable and the terms of the sadaq required Elchahal to pay the deferred portion to Akileh upon divorce.  The appellate court ordered the trial court to enter judgment in Akileh’s favor.