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Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.1/14/2005
(a) The Trial Court's Use of The Ijtihad Methodology To Determine Saudi Law
We first address SABIC's fifth argument, because it challenges the methodology that the trial court employed to determine Saudi law, and, thus by its very nature, assails the procedural foundation of all of the challenged substantive Saudi law rulings. In essence, SABIC claims that the ijtihad process that the trial judge employed to determine Saudi law was "free wheeling," "standardless," and a "bare 'guess' as to the correct content of Saudi law." We reject these contentions, because the record clearly establishes that the trial judge went to extraordinary lengths to understand the applicable Saudi law and to make rulings that were consistent with the numerous Saudi law sources presented to her. To understand how and why that is so, a prefatory discussion of the Saudi system of jurisprudence, and of the Saudi ijtihad analytical approach, is helpful.
In Saudi Arabia, Islamic law (shari'a), which is a fundamentally religious law based on both the Q'uran and the model behavior of the Prophet Muhammed, is the law of the land. Although early Islamic law scholars eventually coalesced into various guilds or schools, only four of those guilds have survived in modern times: the Hanbali, the Hanafi, the Shafi'i and the Maliki. In Saudi Arabia, the judges are instructed to rule exclusively in accordance with the teachings of the Hanbali guild.
The Saudi law system differs in critically important respects from the system of legal thought employed by the common law countries, including the United States. Perhaps most significant is that Islamic law does not embrace the common-law system of binding precedent and stare decisis. Indeed, in Saudi Arabia, judicial decisions are not in themselves a source of law, and with minor exceptions, court decisions in Saudi Arabia are not published or even open to public inspection.
The trial judge was keenly mindful of this distinctive characteristic of Saudi law and of the problems that it created for defining the elements of, and remedies for, ghasb and for how to instruct the jury on those issues. The court observed:
SABIC's arguments ignore the simple truth that the circumstances under which ghasb (usurpation) damages are available under Saudi law are not well known, much less defined, because Saudi law is not based on precedent or stare decisis. Contrary to the implication of SABIC's briefing on this issue, the reality is that one cannot simply consult a statute book or a case reporter to find the elements of, or damages available for, the Saudi law tort of ghasb. Nor can one point to one definition of, or a given set of circumstances giving rise to, ghasb. To illustrate the extreme difficulty of discerning and interpreting Saudi law, the Court notes that none of the Saudi law experts who testified agreed on the proper elements of ghasb..
Finally, because Saudi law decisions are not published, even if the decisions had precedential value (which all the experts agree they do not) the Court could not look to decisions of Saudi judges to determine the proper elements or define the recoverable damages.
Instead of relying upon statutes or decisional precedent to discern the law applicable to a particular case, judges in Saudi Arabia must "first and last.navigate within the boundaries" of the Hanbali school's authoritative works, which are the scholarly treatises primarily consulted by Saudi judges. Using these scholarly writings as guides, Saudi judges identify a "spectrum of possibilities on any given question, rather than a single 'correct' answer."
Thus, in this highly different legal environment, the p
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