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Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co.1/14/2005
bear on what, if any, damages the Saudi jurist, unconstrained by American rules of evidence, might choose to award.
To put it in different terms, had SABIC brought this case in Saudi Arabia, the litigation would have been not unlike a proceeding in equity before a jurist having capacious authority to make factual and legal determinations, including shaping a remedy in accordance with the jurist's sense of equity, circumscribed and influenced by the traditions of Islamic law that he would bring to bear on the dispute. In such a proceeding, the Saudi jurist would have had complete discretion to conclude that an award requiring SABIC to disgorge the profits it earned from the wrongfully retained overcharges was equitable. Unlike the division of labor inherent in an American jury trial, the Saudi jurist's application of ijtihad, and his resulting remedial decision, would not neatly divide between determinations of law and fact.
But, this case was not brought in Saudi Arabia. Instead, SABIC voluntarily brought this case in an American court of law, where SABIC knew there is a division of labor between the judge (whose duty is to determine the applicable law) and the jury (whose duty is to determine the facts). Nor did SABIC ever seek to avoid a jury trial at the outset of the case, which it could have done. Instead, SABIC waited until only a few weeks before the trial to file a motion to strike ExxonMobil's jury trial demand. Even then, the basis for SABIC's motion was not that a jury was inherently incapable of deciding Saudi law claims, but rather that the war in Iraq and the other events unfolding in the Middle East would prejudice the jury against SABIC. The trial judge denied that motion and SABIC's post-verdict motion for a new trial (arguing the same ground). The trial court ruled that ExxonMobil was constitutionally entitled to have a jury decide its counterclaims. Moreover, the court had taken extraordinary precautions to identify, and to afford SABIC an opportunity to strike, any potentially prejudiced jurors. SABIC has not challenged that ruling on appeal.
Having chosen an American forum whose adjudicatory processes SABIC knew were different from those of Saudi Arabia, SABIC cannot fault the trial court for having followed those procedures. That is especially true where, as here, SABIC presented the trial judge very little by way of helpful proposed instructions, and where the instructions it did propose were reasonably found to be not well grounded in Saudi law. Having rationally taken into account the unusual (from a Saudi law standpoint) procedural posture in which she was functioning, and having grounded her instructions to the jury upon a well-reasoned distillation of the Saudi principles articulated by the foreign law expert whose testimony she was entitled to credit, the trial judge did all that could have fairly been expected.
Turning to the specifics of SABIC's claim, our review of a challenged jury instruction focuses "'not on whether any special words were used, but whether the instruction correctly stated the law and enabled the jury to perform its duty.'" Jury instructions "need not be perfect," but they "must give a correct statement of the substance of the law and must be 'reasonably informative and not misleading.'"
We conclude that the instruction given to the jury as to awardable ghasb damagessatisfies those standards. The jury was instructed as follows:
I will now explain to you an additional element of damages that you may award only if you find that SABIC is liable for usurpation, a claim I defined for you earlier.
If you find in favor of Exxon or Mobil on the claims for usurpation, then you may awar
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