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Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.1/14/2005
damages in a contract case such as this one," because "enhanced damages are unprecedented in contract cases, even where the elements of ghasb are otherwise present."
SABIC presented that same argument to the trial judge, who concluded that "SABIC's argument that damages for ghasb are rarely awarded in the Saudi legal system and are virtually unprecedented[,] is unsubstantiated, unverifiable and irrelevant.."
As the trial court explained:
imply because SABIC's expert is unable to name a case in which a Saudi judge awarded damages for usurpation is of little import to this Court considering that Saudi law does not recognize stare decisis and Saudi law opinions are not published. To say that usurpation damages are "highly unusual" presumes that there are Saudi law cases where judges refuse to award damages for usurpation even when the elements have been clearly established. No such case law was provided to the Court, nor could it be, given the nuances of the Saudi law system. Moreover, whether a form of damages is "unprecedented" is also irrelevant if such damages are available according to the authoritative Hanbali texts which are the primary works consulted by Saudi judges to determine the law applicable to the type of dispute raised in this case.
SABIC makes no effort to confront the trial judge's reasoning in its briefs. Instead SABIC strives to create the impression that all the Saudi law experts, including Mr. Wolfson, agreed that a Saudi judge would be unlikely to award so-called "enhanced damages" in a contract action. That argument, besides being legally irrelevant, is factually wrong. A claim for ghasb lies in tort, not in contract. Mr. Wolfson testified that compensatory damages for the tort of ghasb, whichincludes repayment of both the actual overcharged amounts and the actual past profits obtained by SABIC's use of those amounts in its business operations, finds solid support in the Hanbali treatises. Even Dr. Vogel acknowledged that "the Hanbalis have made a point of.trying to pursue that usurper for all conceivable profits." Accordingly, no basis has been shown for SABIC's claim that the trial court committed legal error by submitting the "enhanced damages" issue to the jury.
(e) The Claim That The Trial Court Instructed The Jury Erroneously On The Question of Enhanced Damages
SABIC's final argument is that it is entitled to a new trial on enhanced damages, because the trial judge instructed the jury that it "may" award enhanced damages for ghasb, yet provided no guidance to cabin the jury's discretion in awarding such damages. That "total lack of guidance," SABIC urges, was not only "prejudicial and reversible error," but also a denial of due process of law, because the instruction granted "unfettered.discretion.without any consideration by the jury of the factors that would be taken into account by a Saudi Court."
Implicit in SABIC's position, but never straightforwardly argued to us or to the trial court, is the premise that this case should never have been tried to, or decided by, a jury. We address that implicit premise first. Had SABIC taken this position frontally and from the outset of the case, that argument might have considerable force. The reason is that in an American jury trial, the division of labor between judges and juries does not readily lend itself to the ijtihad methodology that Saudi Arabian jurists are required to employ. A jurist deciding a case under Saudi law would have wide discretion that, as the Superior Court found, differs significantly from that which is normally vested in an American jury. A Saudi jurist is empowered-although not legally required-to consider all equities that might
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