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Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.1/14/2005
Saudi law issues. It is one thing for SABIC to argue that one or more specific decisions resulting from the trial judge's inquiry are legally erroneous. On this record, however, it is not fair for SABIC to contend that the trial court's analytical process itself was arbitrary, unprincipled or lawless.
We turn next to the specific legal errors that SABIC claims the trial judge made in her ghasb liability and damages determinations and jury instructions.
(b) The Claim That The Trial Court Determined The Legal Elements of Ghasb Erroneously
After considering the extensive documentary and testimonial evidence of Islamic law pertaining to ghasb, the trial court determined that:
In order to establish a claim for usurpation, Mobil or Exxon must show, by a preponderance of the evidence, that SABIC wrongfully exercised ownership or possessory rights over the property of another without consent, which means with blatant or reckless disregard for those property rights. The conduct need not be intentional.
SABIC does not dispute that ExxonMobil factually established each of those elements. Rather, SABIC argues on appeal, as it did in the Superior Court, that the trial court's formulation of the tort of usurpation is erroneous because ghasb includes two additional elements that the trial court ignored: (1) SABIC's taking of the joint ventures' property must be "open and obvious," and (2) the taking must be "intentional and without any color of right." Thus, SABIC argues that it cannot be adjudicated as a usurper so long as its seizure of its partners' property was surreptitious, as distinguished from being open and obvious.
The trial judge rejected this argument on the ground that SABIC's two additional proffered elements find no support in the Hanbali works, as explicated by the Saudi law experts whose testimony she found to be credible. Having reviewed the extensive record developed on this issue, we conclude that the trial judge's legal rulings, and the intermediate evidentiary and factual rulings upon which they are grounded, are correct.
Bearing importantly on this issue, as the trial judge found, is that " Mr. Wolfson opined.there is no single binding definition of ghasb, 'but rather a range of possibilities.'" Dr. Vogel testified that.there is "no single 'binding definition of usurpation [or ghasb].'" Not surprisingly, all three experts "differed on the proper elements of a ghasb claim." That being the case, the trial judge had no alternative but to decide which expert's testimony to accept or reject. The trial court determined to accept the opinion testimony of Professor Hallaq and Mr. Wolfson, and to reject that of Dr. Vogel. The court found:
ExxonMobil points out that Dr. Vogel's "varying and inconsistent" definitions of ghasb only confirm that there is no one correct definition. The Court is inclined to agree. Each time he opined on the subject, Dr. Vogel's definition ghasb seemed to change..
The Court does not find Dr. Vogel's latest definition of ghasb persuasive. Having had the opportunity to watch Dr. Vogel testify, observe his demeanor on the witness stand when his interpretation of Saudi law was challenged, and review his latest affidavit as well as his prior affidavits and deposition testimony, the Court finds he has become (or been exposed as) more of an advocate than an objective scholar of Islamic law. His relentless attacks on Dr. Hallaq's qualifications and expertise further undermine his credibility in the Court's eye. The Court is concerned about Dr. Vogel's objectivity.
That finding is entitled to deference on appeal. Based upon the testimony of Mr. Wolfson (and even,
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