As our last two articles noted, last fall, Oklahoma voters adopted State Question 755, amending the Oklahoma Constitution. However, whether the amendment violates federal law is now being decided by the Tenth Circuit Court of Appeals. 

 

     The portion of State Question 755 at issue provides courts “shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.”

 

     As we have discussed, it is unclear what this amendment means. For instance, does it preclude consideration not only of treaties, but all foreign laws? Does that include judgments of other nations’ courts? What about Oklahoma statutes requiring compliance with international treaties? Have these statutes now been repealed by implication? Very possibly, the answer to all these questions is yes.

 

     Our refusal to honor treaties may affect the ability of Oklahoma businesses to engage in international trade. For instance, treaties define and protect the property or rights of United States corporations operating in other countries. The United Nations Convention on Contracts for the International Sale of Goods, the Inter-American Convention on International Commercial Arbitration, and so on, facilitate and define rights and duties related to international trade. If U.S. courts like Oklahoma’s refuse to enforce these treaties, will foreign courts reciprocate by refusing to do so? Will refusal of Oklahoma’s and other states’ courts to enforce these treaties, here, impact U.S. citizens’ ability to invoke treaty protections outside the United States?

 

     Moreover, one should not assume an Oklahoma company will prefer to negotiate contracts based on Oklahoma law rather than the law of another country in which it operates. And, if Oklahoma will not recognize foreign law, companies with whom Oklahoma businesses want to contract will almost certainly refuse to agree to litigate in Oklahoma, but will insist on a requirement that litigation must occur elsewhere.