As reported in The Transcript (Sept. 25), State Question 755 if passed will prohibit Oklahoma’s courts from looking to the “precepts of other nations or cultures” or considering “international law or Sharia law.” This unnecessary proposal poses substantial risks of harm to Oklahoma’s economy and confusion in the courts.
International trade advances vital sectors of Oklahoma’s economy, including agriculture, manufacturing, and natural resources development. According to the Oklahoma Manufacturers’ Association, firms in the state exported goods valued at $5.1 billion in 2008. In 2009, the Oklahoma Department of Commerce declared that “Oklahoma exports remain an engine of growth for the state economy.”
Why does SQ 755 pose a threat? It is because successful international business transactions require, and benefit from, a firmly-established legal infrastructure that provides adequate comfort — legal certainty — for those who wish to participate in the global marketplace.
A seller of goods faces risks that something will go wrong with the transaction. For example, a buyer might refuse to pay. These risks become even more acute when sales are made across borders. To protect themselves, businesses rely on contracts that will be enforced, if necessary, by the courts. But when buyers and sellers are from different countries, questions will arise about the proper body of law for the court to apply. Here, Oklahoma courts and contracting parties benefit from established precedent and decades of experience in deciding these matters. In some cases, like all U.S. courts, they must apply an international treaty on contracts for the sale of goods in order to do this.
By prohibiting Oklahoma courts from considering foreign or international law, SQ 755 threatens to undermine this system of precedent and the contractual expectations of businesses and their foreign partners. No one wants Oklahoma courts to develop a reputation for inability to enforce contracts. However, if I were representing a foreign client, I would advise that client to think twice before entering into a contract with an Oklahoma business in these circumstances.
SQ 755 also would place Oklahoma and its courts in conflict with the U.S. Constitution and directives of the U.S. Supreme Court. The U.S. Constitution states that treaties shall be, along with the U.S. Constitution and Laws, the “supreme Law of the Land.” In 1900, the Supreme Court ruled that “international law is part of our law,” and U.S. courts must take it into account in relevant cases.
In the Sept. 25 Transcript, SQ 755’s author, state Rep. Rex Duncan, is quoted as saying that “there is no logical reason why a court would look to the law of France or Saudi Arabia.” But just last May, the U.S. Supreme Court looked not only to French courts, but also those in Australia, Austria, Canada, Germany, Israel, South Africa, and the United Kingdom in interpreting a treaty on international child abduction. Justice Antonin Scalia, one of the Court’s majority in that decision (Chief Justice John Roberts was another), earlier wrote in a 2004 case that the Court should follow courts in Australia and the United Kingdom in interpreting a treaty on the liability of international air carriers.
Rep. Duncan acknowledges that he is not aware of any Oklahoma courts that have ruled in the manner that SQ 755 seeks to prevent. Instead, he has stated that his proposal is a “preemptive strike” to ward off this speculative and remote harm sometime in the future. Given the very real risks that SQ 755 poses to Oklahoma, this unnecessary effort at prevention would come at too high a cost.
The sponsors of SQ 755 undoubtedly do not want these negative results for Oklahoma’s economy or courts. It is regrettable that they apparently did not think through the consequences of this proposal. On Nov. 2nd, Oklahoma voters should rescue them from this dilemma by rejecting SQ 755.
Law professor Peter Krug lives in Norman.