The Los Angeles County Superior Court denied a request to apply Iranian law in an asbestos wrongful death action in August, 2014. We have previously discussed that decision on this blog and explained that the court was concerned that the application of Iranian law would not be permissible because mullahs administer the law, and Shi’ite Islamic law may be used to decide the case. The court invited appellate review of thedecision, acknowledging that the question of whether to apply Iranian law is a controlling question of law as to which there are substantial grounds for difference of opinion. Recently, five California law professors wrote an amici curie letter brief to the Second District Court of Appeal arguing the Superior Court failed to conduct the appropriate choice of law inquiry.
Professors Eugene Volokh of UCLA, Alan Brownstein of UC Davis, Michael Helfand of Pepperdine University, Clyde Spillenger of UCLA and Jonathan Varat of UCLA, urged the Appellate Court to take one of the following two steps: either conduct the choice of law inquiry without categorically rejecting the possibility of applying Iranian law, or issue a writ of mandate, disapproving of the Superior Court’s categorical rejection of Iranian law and requiring the Superior Court to conduct the conventional California choice of law inquiry.
The professors address the trial court’s concerns directly and argue that it would not need “to decide theological questions, such as which school of Islamic law is sound, or whether the law is really the word of God.” Rather, the court would need to decide, with the help of an expert witness, what Iran’s legal system prescribes. American courts have refused to enforce foreign rules when the foreign law is “seen as improperly discriminatory based on sex or religion,” and American courts can refuse to enforce a judgment based on an improperly discriminatory foreign rule. Therefore, the professor argue, even if some Iranian rule was contrary to specific California policies or seen as improperly discriminatory, the trial court should reject only that rule and not refuse to apply Iranian law more broadly. The professors contend that “the mere fact that Iranian legal rules are based on Islamic law does not make them contrary to California public policy.”
Additionally, the professors argue that considering expert testimony on the content of Saudi or Iranian law, even if that means interpreting Islamic law, serves “the secular purpose of promoting international comity, predictability of business relations, and application of the law that the parties would have reasonably expected to see applied.”
Finally, in an attempt to show the Appellate Court that interpreting Islamic law is nothing new, the professors site numerous cases in which American courts apply the laws of Islamic countries including, Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Inc., 866 A.2d 1, 29-40 (Del. 2005) and McGhee v. Arabian American Oil Co., 871 F.2d 1412, 1424-26 (9th Cir. 1989).