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Author Topic: Archbishop of Canterbury seeks adoption of Islamic law  (Read 3228 times)
Soldier4Christ
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« on: February 07, 2008, 10:31:48 PM »

Archbishop of Canterbury seeks adoption of Islamic law
'It is not as if we are bringing in an alien and rival system'

The chief of the 70-million-strong worldwide Anglican Communion advocates the establishment of Islamic law in Britain, drawing a rebuke from Prime Minister Gordon Brown, who suggested that perhaps British law would serve better.

In a recent interview with BBC Radio 4's "The World At One Today," Archbishop of Canterbury Rowan Williams confirmed adoption of sharia "seems unavoidable."

"As a matter of fact, certain conditions of sharia are already recognized in our society and under our law, so it is not as if we are bringing in an alien and rival system," Williams said.

"We already have in this country a number of situations in which the internal laws of religious communities is (sic) recognized by the law of the land as justifying conscientious objections in certain circumstances," he said.

However, according to published reports, Brown was of a different opinion.

"Our general position is that sharia law cannot be used as a justification for committing breaches of English law, nor should the principles of sharia law be included in a civil court for resolving contractual disputes," a spokesman for Brown's office said.

"If there are specific instances like stamp duty, where changes can be made in a way that's consistent with British law and British values, in a way to accommodate the values of fundamental Muslims, that is something the government would look at," the spokesman continued.

"In general terms, if there are specific instances that can be looked at on a case-by-case basis, that is something we can look at. But the prime minister believes British law should apply in this country, based on British values," the spokesman said.

In the BBC interview, William advised the UK to "face up to the fact" that some residents do not relate to the British legal system and that Muslims could choose to have marital disputes or financial matters handled by a sharia court.

"There is a place for finding what would be a constructive accommodation with some aspects of Muslim law as we already do with aspects of others kinds of religious law," Rowan continued.

"Nobody in their right mind would want to see in this country the kind of inhumanity that has sometimes been associated with the practice of the law in some Islamic states: the extreme punishments, the attitudes to women," he said, according to a Times report.

"But there are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them," he said.

Williams claimed Orthodox Jewish courts already are in operation in Britain, and the pro-life views of Catholics and other Christians are "accommodated within the law."

However, Alistair McBay of the National Secular Society said Rowan's comments "directly undermine" the concept of citizens being equal under the law.

"We have segregated schools, segregated scout groups and even segregated toilets for Muslims, and now the archbishop says we should have different laws. It's madness," he said.

"This is a Christian country with Christian laws," added Stephen Green, national director of Christian Voice. "If Muslims want to live under sharia law then they are free to emigrate to a country where sharia law is already in operation.

"Any accommodation with sharia law does nothing to help social cohesion. Christian law has been eroded by secularism and this country was founded on Christian values," he said.

Ramadhan Foundation chief Mohammed Shafiq welcomed the comments, advocating for such attempts "by both our great faiths to build respect and tolerance."

"Sharia law for civil matters is something which has been introduced in some western countries with much success; I believe that Muslims would take huge comfort from the government allowing civil matters being resolved according to their faith," he said.

A Ministry of Justice expert told the London Independent there's nothing to prevent people from following sharia now, so long as "an activity prescribed by sharia law does not contravene the law of England and Wales."

Sharia is the Islamic religious law that operates in many Muslim countries around the world, including Libya and Sudan. Egypt's constitution also defines sharia as the source of its law. Some nations also have secular codes that operate alongside, but mostly subservient to, sharia.

On the Times' online forurm, a reader wrote, "Sharia law is yet another gob of grease on the slippery slope that we do not want, need or deserve."

Added Bill Paoli of Oakland, Calif., "Didn't Henry II settle this nonsense some time ago?"

"Williams would make a great running mate with Sen. Obama or Hillary in our upcoming presidential election," John Carey, of Philadelphia, added to the This London forum.

Nor is it the first controversy for the Anglican church, which is in turmoil over the practice of its American branch, the Episcopal Church, of advocating for homosexuality.
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« Reply #1 on: February 08, 2008, 10:31:16 PM »

'Resign,' clergy tell Archbishop of Canterbury
Call for Williams to quit part of backlash over sharia comments

A senior clergyman in the Church of England is calling for the resignation of the Archbishop of Canterbury, Rowan Williams, because of his comments promoting Islamic sharia law in Britain.

The comments were reported by the Times Online, which said the reaction from the "long-standing member of the church's governing body, the General Synod," was just a part of the backlash against Williams over his comments.

WND has reported that Williams, chief of the 70-million strong worldwide Anglican Communion, has advocated for establishment of Islamic law, drawing a rebuke from Prime Minister Gordon Brown, among others.

The Times Online reported the Synod member, who insisted on anonymity, reported, "A lot of people will now have lost confidence in him. I am just so shocked, and cannot believe a man of his intelligence could be so gullible. I can only assume that all the Muslims he meets are senior leaders of the community who tell him what a wonderful book the Quran is."

"I don't suppose he will take any notice, but yes, he should resign," he told the newspaper.

The report said the Bishop of Southwark, the Right Rev. Tom Butler, also challenged the idea, saying it would take "a great deal more thought and work" before he could find the idea acceptable.

The controversy follows the developing split in the Anglican Community over homosexuality, as up to a quarter of the 800-plus Anglican bishops worldwide plan to boycott the church's annual Lambeth Conference this year. The church's American branch, the Episcopal Church, has adopted a pro-homosexual agenda, leading some U.S. congregations to abandon their national leadership if favor of more conservative leaders from Africa.

The report said besides criticism from within his church, there's been more adverse reaction from governmental leaders, including David Blunkett, the former Home Secretary.

Formalizing sharia "would be wrong democratically and philosophically but it would be catastrophic in terms of social cohesion," he said.

The report said the only group to have supported Williams was the Islamist group Hizb ut-Tahrir, which said those who have objections are exhibiting "vitriolic hatred."

Williams had said, "It seems unavoidable and, as a matter of fact, certain conditions of sharia are already recognized in our society and under our law, so it is not as if we are bringing in an alien and rival system."

In an interview months ago with a Muslim lifestyle magazine, Williams compared Muslims in Britain to Good Samaritans, and praised the Islamic ritual of praying five times a day. He also has argued the 9/11 terrorists should not be described as evil, the report said.

"There are real human rights issues under sharia – women are not equal with men," Alan Craig, a councilor who has campaigned against a mega-mosque planned in East London. "If he is accepting that sharia could be ingrafted in British law, it can only be ingrafted if it complies with British law in which case there's no pointing ingrafting it."

On the newspaper's forum, Louisa, from Winchester, was blunt.

"This is BRITAIN, I live in ENGLAND and we should live under ENGLISH law, no other. This is getting totally ridiculous."

"If the Archbishop of Canterbury means that Muslims can choose to have certain disputes settled according to their own law, by binding arbitration [what some call a sharia court]. then they can do this now, in the same way that some Jewish people have their disputes settled in the Beth Din," added David Pannich, a human rights lawyer.

"But such transfer of jurisdiction is subject to public policy considerations. That means that the fundamental standards of fairness, of human rights which underpin our laws cannot be abrogated. … If the archbishop is saying this, then that is fundamentally wrong."

According to the Daily Mail, Williams has explained he wanted to "tease out some of the broader issues around the rights of religious groups within a secular state."

Mike Judge, of the Christian Institute, told the Daily Mail he was appalled by the idea.

"The idea that you can have the moderate bits without the nasty bits coming along at a later time is naïve," he said.

Anne, of Herefordshire, summed up the opinion of many on the Daily Mail forum site, stating, "What planet is he on?"

Williams' comments came in an interview with BBC Radio 4's "The World At One Today."

"We already have in this country a number of situations in which the internal laws of religious communities is (sic) recognized by the law of the land as justifying conscientious objections in certain circumstances," he said.

A spokesman for the Prime Minister's office, however, disagreed.

"Our general position is that sharia law cannot be used as a justification for committing breaches of English law, nor should the principles of sharia law be included in a civil court for resolving contractual disputes," a spokesman for Brown's office said.

In the BBC interview, William advised the UK to "face up to the fact" that some residents do not relate to the British legal system and that Muslims could choose to have marital disputes or financial matters handled by a sharia court.

Sharia is the Islamic religious law that operates in many Muslim countries around the world, including Libya and Sudan. Egypt's constitution also defines sharia as the source of its law. Some nations also have secular codes that operate alongside, but mostly subservient to, sharia.
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« Reply #2 on: February 08, 2008, 10:57:40 PM »

A fool and his folly.
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« Reply #3 on: February 08, 2008, 11:06:05 PM »

I can only say the world has truly gone mad and that the return of Our LORD and Savior, Jesus Christ, cannot far from coming to pass!
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« Reply #4 on: February 08, 2008, 11:27:23 PM »

Sharia Approved in Texas...

The Second Court of Appeals of the State of Texas has rendered a ruling on the enforceability of shari'a judgments rendered by imams. According to the Texas appeals court, it's all good.

You've heard of the Texas Courts. Ladies and gentlemen, make way for the Texas Islamic Courts!!!

    The parties will ask the courts to refer the cases for arbitration to Texas Islamic court within "Seven Days" from the establishment of the Texas Islamic Court panel of Arbitrators. The assignment must include ALL cases, including those filed against or on behalf of other family members related to the parties. Each party will notify the other party, Texas Islamic Court, and their respective attorneys, in writing of the assignment of all the above Cause Numbers from the above appropriate District Court to Texas Islamic Court.

In general, private arbitration agreements are enforceable by government courts. Shari'a arbitration agreements are one type of private arbitration agreement. Without a theory as to why shari'a arbitration agreements shouldn't be enforced by the courts, I'm not sure what else the appeals court could have done in this case. Still, this is not a welcome development.
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« Reply #5 on: February 09, 2008, 12:01:58 AM »

Unbelievable.  When I think of Texas I think of cowboy hats and Longhorns not turbans and prayer mats.
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« Reply #6 on: February 09, 2008, 12:09:13 AM »

Now we can think of space cadets on cows.

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« Reply #7 on: February 09, 2008, 12:11:12 PM »

Now we can think of space cadets on cows.



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« Reply #8 on: February 09, 2008, 10:16:26 PM »

That doesn't make ANY sense at all(of course what at this time).
Sharia Law says that anyone who is not a Muslim,is an Infidel. So
ALL Catholics would be considered Infidels. I am not going to
even BEGIN to say what they think of Jews.They don't much more
highly of Christians either.


                               Yours in Yeshua,
                               Curious
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« Reply #9 on: February 10, 2008, 04:42:42 PM »

Archbishop's sharia plan
Sun Feb 10, 2008 4:44pm GMT

By Tom Heneghan, Religion Editor

PARIS (Reuters) - Headlines may scream about stoning and hand-chopping, but the main question about sharia law in any western country is whether Islamic courts should judge Muslims in cases such as divorce, inheritance or business.

Archbishop of Canterbury Rowan Williams caused uproar by suggesting British law adopt some sharia law. Critics decried the idea as barbaric, citing the gruesome punishments meted out in strict Muslim countries like Saudi Arabia.

The archbishop clearly stated in his speech on Thursday that he ruled out such punishments and only wanted some aspects of Muslim personal law, as a way to accommodate Muslims who felt torn between their Islamic and British identities.

But "the devil is in the detail," as the saying goes.

Sharia law is not a single written code -- there are four schools of interpretation for Sunnis, one for Shi'ites and disagreements within them. Men can enjoy more rights than women, a stand that clashes with western concepts of equality.

"Even in a city like Bradford, you have four different schools of sharia law, so which are you going to accept?" Baroness Haleh Afshar, a law professor, told the BBC.

Sharia is a legal code based on the Koran, the sayings of the Prophet Mohammad and centuries of Islamic jurisprudence, or fiqh. It is meant to help Muslims in daily life know what Islam says they can, cannot, should or should not do.

The vast bulk of cases handled by sharia courts -- both in Muslim and western countries -- judge whether marriage, divorce, inheritance and business cases adhere to Islamic precepts.

Williams suggested that verdicts in such cases be accepted as legal, as long as they do not contradict British civil law and sharia does not become "some kind of parallel jurisdiction."

SUPERFLUOUS JURISDICTION?

Many routine sharia verdicts would be ruled out under these conditions or be irrelevant to the civil law system, whose demands the defendants would have to comply with anyway.

In a divorce, for example, a couple must end its marriage in a civil court regardless of any other rules its faith imposes. If believers have stricter rules, such as a bar on remarriage in church for divorced Catholics, that is their private matter.

"What Dr Williams is talking about in practical terms is either superfluous ... or it runs the risk of compromising his other key principles," Simon Barrow, director of the British religious think-tank Ekklesia, argued in an analysis.

The principles of equality and individual rights would rule out many sharia verdicts common in Muslim countries.

In many traditional sharia courts, a woman's testimony is worth half that of a man and a daughter has a right to only half the inheritance that a son gets. In child custody cases, men and Muslims usually have priority over women and non-Muslims.

ORTHODOX JEWISH PRECEDENT

While the storm gathered around Williams, several Muslim leaders have thanked him and urged a cooler examination of his proposals, without making clear how they would work.

"His recommendation is confined to the civil system of sharia law and that only in accordance with English law and agreeable to established notions of human rights," said Muhammad Abdul Bari, secretary general of the Muslim Council of Britain.

Williams noted Orthodox Jewish rabbinical courts in Britain can already have their verdicts recognised by law. But they must comply with British law and can be overturned by a civil court.

Britain requires Orthodox Jews to dissolve a marriage in a "Beth Din" court before they can get a civil divorce. This was to stop husbands from blocking a religious divorce, which means wives cannot remarry in a synagogue.

Archbishop's sharia plan
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« Reply #10 on: February 17, 2008, 02:55:23 PM »

Islamic Law Applied In US Courts

PROFESSOR Fadel wrote for States of Islam last year. The case was in a NJ federal courts where two corporations had agreed to use Saudi-Sharia law to decide disputes.

    An excellent example of the continued relevance of legal orientalism among at least some American judges is the case of National Group for Communications and Computers Ltd. v. Lucent Technologies International Inc., 331 F.Supp.2d 290. In this case, the judge concluded that the contractual doctrine in Islamic law that renders contracts with gharar – uncertainty or risk – unenforceable, precluded the plaintiff from recovering the going concern value of an enterprise that was forced to liquidate as a result of the defendant’s breach of contract. Accordingly, the court concluded that the plaintiff could recover only the book value of the liquidated firm’s assets.

    I do not want to underestimate the difficulty an American judge may have in construing a doctrine such as gharar in a contemporary commercial setting. To my knowledge, there are no modern authoritative treatises of Islamic law as there was in the pre-modern era, and for that reason, any application of Islamic law to a current dispute inevitably requires a judge to engage in a certain amount of hypothetical reasoning, always a difficult task in even the best circumstances. I am critical, however, of the judge’s premises regarding the radical otherness of Islamic legal principles, assumptions that obviously colored the judge’s determination of to apply the doctrine of gharar to the dispute. As a colleague of mine who brought this case to my attention pointed out astutely, the judge, having concluded that Islamic law is “fundamentally different from that of the United States,” id. at 294, obviously decided that the “right” result in this case must be the “wrong” result in the US, as though Islamic law and US law exist in alternate universes, with Islamic law representing all the alternatives rejected by US law.

    Of course, the doctrine of gharar while it may be legitimately criticized as being overly formalistic and therefore obsolete in the modern context (at least in many cases), is not radically “other” at all. In fact, the common law of contracts shares with classical Islamic law the refusal to enforce contracts when there is uncertainty as to material terms of the contract, especially price. The problem in this case was that there was no uncertainty in price: a third party had purchased 25% of the liquidated firm’s equity prior to the breach, thereby giving a precise, bargained for price term for the firm.

    The court rejected this method for calculating the plaintiff’s damages by giving the doctrine of gharar unprecedented scope: according to the court’s reasoning, any bargain involving consideration whose value is speculative is unenforceable in Islamic law, even in circumstances where the parties themselves have settled on a fixed price. Thus, the court accepted that a contract for the purchase of shares in a corporation could not be enforced in Saudi Arabia, even when the contract fixes the purchase price. According to the classical Islamic law of contracts, however, so long as the consideration is fixed and known, there is no gharar, although there may be disappointment if the deal sours. For that reason, there is no objection to the sale of a plantation, even though the law prohibited an owner of a fruit tree from selling the fruit of her tree prior to the time it had become edible. If, on the other hand, the parties wish to enter into a contract with a contingent pay-off structure, e.g. the sale of a company for a price to be determined in whole or in part by the firm’s future earnings post-sale, as in the case of a partial earn-out, for example, then the doctrine of gharar would be relevant, but even in this case, it would not be dispositive. Because gharar was considered to be relative, only contracts with material uncertainty were unenforceable on that score. In any case, the doctrine has absolutely nothing to do with the fact that only God knows the future, as contracts for future delivery of goods – so long as the price, quality and delivery conditions are clear – are absolutely enforceable, even though there is uncertainty as to the ability of the obligor to perform her obligation in the future. Accordingly, the only uncertainty that Islamic law concerns itself with is uncertainty in the terms of the contract, not the actual value of the consideration.

    The court, however, is not disturbed in the least by the apparently absurd result it attributes to Islamic law: after all, Islamic law is different. Moreover, the parties to this suit were “sophisticated business enterprises well-versed in the . . . doctrines of Islamic law. They chose not to include any prophylactic choice of law clause in this case. The parties, therefore, are subject to the full application of Shari’a, however uncompromising that application may be.” Id. at 296. In effect, the court seems to be saying to the plaintiffs that you deserve this result for not opting out of that insane alternative legal universe called Islamic law.

There are at least two other cases that Volokh has picked up where US courts permitted application of Islamic Law.

In this case (see following post #1), for example, the court recognised the validity of shariah-based arbitration in a dispute over a business partnership. The contract between the two parties had an arbitration clause which read:

    Any dispute, controversy or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach hereof shall, upon the request of any party involved, be submitted to and settled by arbitration before the Arbitration Court of an Islamic Mosque located in the State of Minnesota pursuant to the laws of Islam (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved). Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or Federal, having jurisdiction. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence, and counsel.

The parties fell into dispute and sought arbitration by the Islamic Arbitration Court. The Court made a ruling and one of the parties then went to the secular court to contest that judgement. The court subsequently ruled:

    The district court properly confirmed the arbitration award under Minn. Stat., ch. 572.

Et tu, State of Minnesota?

Likewise, US courts have also recognized shariah-based arbitration in family disputes. For example, this case (see following post #2) heard by the Texan Court of Appeals.

Despite this, neither Minnesota or Texas are, as far as we can tell, Islamic theocracies. Perhaps they soon will be though.

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« Reply #11 on: February 17, 2008, 02:57:10 PM »

Post # 1 referenced above:

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1736

 

 

Mohamed D. Abd Alla, a/k/a Mohamed D. Abd-Alla,

a/k/a Mohamed D. Abdul-Allah,

Respondent,

 

vs.

 

Mohamed Mourssi, a/k/a Mohamed Morsy,

Appellant.

 

 

Filed June 1, 2004

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. CT036062

 

 

Michael W. Bertelsen, Bell, Bertelsen & Bright, 300 Harbor Place, 500 West Highway 96, Shoreview, MN 55126 (for respondent)

 

Stephen H. Berndt, 941 Hillwind Road Northeast, Suite 301, Fridley, MN 55432 (for appellant)

 

 

            Considered and decided by Schumacher, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

S Y L L A B U S

When a party moves the district court to confirm an arbitration award under Minn. Stat. § 572.18 (2002), the district court's jurisdiction is limited to confirmation of the award unless an application to vacate or modify the award is filed within the time limits prescribed by Minn. Stat., ch. 572.

O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Mohamed Mourssi, a/k/a Mohamed Morsy, appeals from the district court's order confirming the decision of the Islamic Arbitration Committee and dismissing his motion to vacate the arbitration award.  He argues he was denied his right to "appeal" to the committee and the committee exceeded its authority.[1]   We affirm.
FACTS

            In August 2001, Mourssi and respondent Mohamed D. Abd Alla, a/k/a Mohamed D. Abd-Alla, a/k/a Mohamed D. Abdul-Allah, entered into a partnership to manage and acquire restaurants.  The partnership was subject to a partnership agreement.  The partnership agreement included an arbitration clause, which provides:

Any dispute, controversy or claim arising out of or in connection with or relating to this Agreement or any breach or alleged breach hereof shall, upon the request of any party involved, be submitted to and settled by arbitration before the Arbitration Court of an Islamic Mosque located in the State of Minnesota pursuant to the laws of Islam (or at any other place or under any other form of arbitration mutually acceptable to the parties so involved).  Any award rendered shall be final and conclusive upon the parties and a judgment thereon may be entered in the highest court of the forum, state or Federal, having jurisdiction.  The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence, and counsel.

 

            At some point, the partnership acquired the Al-Bustan Restaurant.  After purchasing the restaurant, numerous disputes arose between the partners.  The parties agreed to arbitrate their difference before an Islamic arbitration committee.  In September 2002, the committee issued its decision, stating:

After many long meetings and review of all issues that occurred between [Mourssi and Abd Alla], the committee has decided in its last meeting the following:

 

1.         [T]here shall be no link between the problem related to Al-Bustan Restaurant and any other previous problem that occurred between the two parties, may it be financial problems or any other problem[.]

 

2.         teps toward the sale of Al-Bustan Restaurant shall start on September 20, 2002, with the first priority to purchase it granted to [Mourssi] at a price of $210,000, which was agreed upon by the parties.  He shall pay the full amount in a period of no more than two months from the date specified above.  In case where [Mourssi] is not interested in purchasing the Al-Bustan Restaurant, the priority shall go to his associate [Abd Alla].  In case both parties do not want to purchase Al-Bustan Restaurant, the process of selling the restaurant shall be granted to the Arbitration Committee with no interference from either of the two parties.  The Arbitration Committee then shall sell the restaurant and resolve all financial rights between the two parties.

 

The decision also states:

1.         The Arbitration Committee decides that Al-Bustan Restaurant has been acquired by [Mourssi], and he assumes full responsibility over the restaurant since May 1st, 2002.  Beginning at this date, all profits from sales shall go to [Mourssi].  Similarly, all losses, if any, shall be assumed by [Mourssi] alone.  And any problem that arise with Al-Bustan Restaurant after this date shall be the sole responsibility of [Mourssi].

 

2.         Any disagreement or issues, may it be financial or other, between the two parties, the Arbitration Committee shall have the sole right to study them, to determine the harm inherent in them, and to decree what it sees suitable.

 

3.         All decisions of the Arbitration Committee shall be binding to all parties in the dispute as is accepted by them in a written statement, and in accordance to a condition in the sale contract specifying that all disputes regarding Al-Bustan Restaurant are to be resolved according to Islamic Jurisprudence.

 

            In a letter dated November 10, 2002, Mourssi expressed his concerns to the committee regarding its decision and argued that the decision "could be considered as a frame for a possible solution but not a solution itself since there was not any issue or numbers determined or specified."  Mourssi concluded the letter stating:

cont'd
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« Reply #12 on: February 17, 2008, 02:57:37 PM »

Based on all the facts I specified above, I cannot accept the decision made by the arbitration committee, and I would urge them to reconsider looking into the issue deeper, and to allow both parties to bring in documents to be the bases for resolving all problems, or to move to the next choice in the partnership agreement by taking the whole issue to the American judicial system according to the laws of the state of Minnesota.

 

The committee did not receive the letter until April 7, 2003.   

            In April 2003, Abd Alla moved the district court to confirm the arbitration award.  On May 14, 2003, Mourssi responded that the court should deny Abd Alla's motion and vacate the arbitration award "on the grounds that it was procured by corruption, fraud or other undue means and that the Committee exceeded its authority."  During the hearing Abd Alla argued Mourssi had not timely contested the arbitration award and therefore could not now contest the award.   Mourssi argued that under Islamic law there is no set time for appeal.

The district court remanded the matter to the committee to determine whether Mourssi had requested the committee to reconsider its decision in a timely manner, and if he did, was the decision "procured by corruption, fraud or other undue means and/or did the Committee exceed its authority."  The committee responded that no right to reconsideration existed, the committee did not exceed its authority, and the decision was not procured by corruption, fraud, or other undue means.  After receiving the committee's response, the district court confirmed the arbitration award.
ISSUE

Can the district court consider Mourssi's motion to vacate the committee's arbitration award?
ANALYSIS

On appeal, neither party contests whether the district court had jurisdiction to consider Mourssi's motion to vacate the arbitration award.  Therefore, we must independently determine the extent of the district court's jurisdiction in this case.  See Herubin v. Finn, 603 N.W.2d 133, 137 (Minn. App. 1999) ("Subject matter jurisdiction cannot be conferred upon the court by consent of the parties.").

            Although the arbitration in this case was conducted pursuant to Islamic law, judicial review of any arbitration award is limited to those matters where jurisdiction is statutorily granted.  Univ. of Minn. v. Woolley, 659 N.W.2d 300, 308 (Minn. App. 2003) (stating aggrieved school employee who choose to submit matter to arbitration is only entitled to limited judicial review under chapter 572), review denied (Minn. Jun. 17, 2003); see also Park Const. v. Indep. Sch. Dist. No. 32, 216 Minn. 27, 33, 11 N.W.2d 649, 653 (1943) ("In the absence of statute . . . the decisions of common-law arbitrators are not subject to judicial review and supervision.").

            Abd Alla sought judicial confirmation of the arbitration award.  Chapter 572 provides:  "Upon application of a party, the court shall confirm an award, unless within the time limits hereinafter imposed grounds are urged for vacating or modifying or correcting the award, in which case the court shall proceed as provided in sections 572.19 and 572.20."  Minn. Stat. § 572.18 (2002).  Section 572.18 unambiguously requires the district court to confirm the arbitration award unless grounds to vacate or modify the award are properly brought before the court.  See Mut. Serv. Cas. Ins. Co. v. League of Minn. Cities Ins. Trust, 659 N.W.2d 755, 760 (Minn. 2003) ("[W]here the intention of the legislature is clearly manifested by plain and unambiguous language, [courts] have neither the need nor the permission to engage in statutory interpretation."); Minn. Stat. § 645.44, subd. 16 (2002) (stating "'shall' is mandatory").

Mourssi moved to vacate the award on the grounds that the award was procured by fraud, corruption, or undue influence and that the arbitration committee exceeded its authority.  Even though Mourssi's motion to vacate was filed in response to Abd Alla's application to confirm the award, the motion is still subject to the time requirements of chapter 572.  See Component Sys., Inc. v. Murray Enters., 300 Minn. 21, 24-25, 217 N.W.2d 514, 516 (Minn. 1974) (rejecting appellants assertion that 90-day time limit does not prevent hearing on motion to vacate when it is asserted in answer in proceeding to confirm arbitration award). 

Chapter 572 provides a court may consider vacating an arbitration award upon the application of a party where

(1)       The award was procured by corruption, fraud or other undue means;

 

            (2)       There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;

 

            (3)       The arbitrators exceeded their powers;

 

            (4)       The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 572.12, as to prejudice substantially the rights of a party;  or

 

            (5)       There was no arbitration agreement and the issue was not adversely determined in proceedings under section 572.09 and the party did not participate in the arbitration hearing without raising the objection;

 

            But the fact that the relief was such that it could not or would not be granted by a court of law or equity is not ground for vacating or refusing to confirm the award.

 

Minn. Stat. § 572.19, subd. 1 (2002).

Section 572.19 also provides that an application to vacate an arbitration award "shall be made within 90 days after delivery of a copy of the award to the applicant, except that, if predicated upon corruption, fraud or other undue means, it shall be made within 90 days after such grounds are known or should have been known."  Minn. Stat. § 572.19, subd. 2 (2002).  Failure to file an application to vacate an arbitration award within 90 days when the application is not predicated on fraud, corruption, or other undue means prevents judicial review of the award.  Wacker v. Allstate Ins. Co., 312 Minn. 242, 249, 251 N.W.2d 346, 349-50 (1977).

Here, the committee's decision was issued on September 23, 2002.  It is clear from the record that Mourssi had received a copy of the arbitration award by November 10, 2002.  Mourssi moved the district court to vacate the arbitration award on May 14, 2003, considerably more than 90 days after he received a copy of the award.  Thus, Mourssi is not entitled to judicial consideration unless his application to vacate was predicated on fraud, corruption, or other undue means.

Mourssi claims that the award was procured by corruption, fraud, or other undue means because "one of the arbitrators . . . was meeting with a potential buyer prior to the issuance of the September 23, 2002 award."  Arbitration awards are strongly favored and a reviewing court must exercise "[e]very reasonable presumption" in favor of the arbitration award's finality and validity.  State, Office of the State Auditor v. Minn. Ass'n of Prof'l Employees, 504 N.W.2d 751, 754 (Minn. 1993).   

In light of the presumptions favoring an arbitration award, an application to vacate an arbitration award on the grounds that it was procured by fraud, corruption, or other undue means, must present an allegation that, if true, would clearly demonstrate the award was the result of these impermissible means.  See Beebout v. St. Paul Fire & Marine Ins. Co., 365 N.W.2d 271, 273 (Minn. App. 1985) (stating before district court may consider vacating arbitration award on grounds of fraud, "[f]raud must be established by 'clear allegations and proof'" (citation omitted)), review denied (Minn. May, 31, 1985).

Mourssi's allegation that the arbitrator spoke to a "potential buyer" does not clearly demonstrate the award was result of fraud, corruption, or other undue means when the arbitration award provided Mourssi with the first opportunity to purchase the restaurant at a price that the parties agreed was appropriate.  Because we conclude that the district court was not presented with an application to vacate an arbitration award that was filed within the time limits prescribed by chapter 572, section 572.18 only granted the district court jurisdiction to confirm the arbitration award.

D E C I S I O N

            The district court properly confirmed the arbitration award under Minn. Stat., ch. 572.

            Affirmed.

[1] Mourssi's claim is more appropriately characterized as a request for the committee to reconsider its decision and not an appeal to the committee.
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« Reply #13 on: February 17, 2008, 02:58:55 PM »

Post #2 referenced above:

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-02-415-CV
 

SAADALLAH JABRI AND                                                            APPELLANTS
AIDA JABRI

V.

JAMAL QADDURA                                                                        APPELLEE

AND

 

NO. 2-02-416-CV

ROLA QADDURA                                                                        APPELLANT

V.

JAMAL QADDURA AND                                                            APPELLEES
OSAMA QADDURA

------------

FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

------------

OPINION

------------

These consolidated appeals involve the denial of Appellants' motions to stay litigation and compel arbitration under the Texas General Arbitration Act. We reverse and render judgment in favor of Appellants.

Background

The parties to this litigation:

There are five parties to these two consolidated appeals: a husband and wife, the wife's parents, and the husband's brother.

Rola Qaddura and Jamal Qaddura were married on September 3, 1993. Previously, on August 28, 1993, they had signed an "Islamic Society of Arlington Islamic Marriage Certificate" which reflects that the "dowry for the bride" was: "One-half of the value of the house located at 2206 Gladstone. This is in addition to $40,000 Fourty [sic] Thousand U.S. Dollars the payment of which is deferred."

On October 19, 1999, Rola filed for divorce. She sought sole managing conservatorship of the parties' two children, child support, division of the parties' estate, and enforcement of the terms of the Islamic Marriage Certificate. Rola subsequently sued Jamal's brother, Osama Qaddura, as a third-party defendant, alleging he was engaged in a conspiracy with Jamal whereby Jamal was wrongfully transferring community assets to Osama, including a house on Vesta Via Court.

Jamal filed a counterclaim seeking sole managing conservatorship and child support. He sought a declaration that the Islamic Marriage Certificate was unenforceable because it was induced by Rola by fraud. He also alleged a separate cause of action against Rola for "defamation and false light," in which he sought $250,000 actual damages and $1,000,000 exemplary damages.

Osama filed a counterclaim seeking a declaratory judgment that he is the sole owner of the house on Vesta Via Court (with no right of reimbursement by Rola or Jamal) and of a specific bank account.

On January 18, 2002, Jamal filed a separate suit seeking a protective order against Rola's parents (the children's grandparents), Saadallah Jabri and Aida Jabri, alleging the children had been injured while in their care.

The partial summary judgment:

On April 27, 2001, the trial court granted Jamal's motion for partial summary judgment in the divorce case. The court found: the "purported Islamic Dowry agreement" is not an enforceable agreement under Texas law, nor is it a valid or qualified premarital agreement under the Texas Family Code; the house on Gladstone Drive is the separate property of Jamal; the house on Vesta Via Court is owned by Osama; and two certificates of deposit (for $102,348 and $5,398) are currently non-existent and neither party has a claim of reimbursement for the monies. Accordingly, the trial court's partial summary judgment ordered that Rola take nothing on these claims.

The Arbitration Agreement:

On September 25, 2002, all five parties signed an "Arbitration Agreement." This document recites, in full, that the parties:

    after consultation with their respective attorneys, agree to submit all claims and disputes among them to arbitration by the TEXAS ISLAMIC COURT, 888 s. Greenville Ave., suite 188, Richardson, Texas, as follows:

        A.  Cause No. 322-291577-99, styled "In the Matter of the Marriage of Rola Jabri Qadurra and Jamal Qaddura and In the Interest of Noor Qaddura and Farah Qaddura Minor children", pending in the 322nd Judicial District Court of Tarrant County, Texas.

        B. Cause No. 76-184050-00, Styled "Jamal Qaddura Versus Saadallah Jabri", pending in the 67th Judicial District Court of Tarrant County, Texas.[(1)]

        C. Cause No. NO. 322-328238-02 (FORMERLY 325-328238-02), styled "Jamal Qaddura vs. Saadallah Jabri and Aida Jabri" pending in the 322 Judicial District Court of Tarrant County, Texas.

    1.The Parties agree to arbitrate all existing issues among them in the above mentioned Cause Numbers in the appropriate District Court, which includes the Divorce Case, the child custody of the [sic] Noor Qaddura and Farah Qaddura, the determination of each party's responsibilities and duties according to the Islamic rules of law by Texas Islamic Court.

    2.All parties agree to sign the Texas Islamic Court required legal forms, and each party pays his required fees.

    3.The panel of arbitrators of Texas Islamic Court will be formed according to the rules and regulations of Texas Islamic Court. However, the parties agree and suggest the following names for the panel:

    .Mujahid Bakhash, the Imam of the Islamic Association of Tarrant County, Fort Worth, Texas.
    .Main El-quda, the Imam of the Islamic Society of Arlington, Arlington, Texas.
    .Abdel Salam Abu-Nar, the Imam of Dar Assalam Islamic Center, Arlington, Texas

    4.Each Party will submit all of his documents, exhibits, and evidence to Texas Islamic Court.

    5.The parties agree that the Ruling of the Texas Islamic Court in the above mentioned Cause Numbers is Binding, and Final, and no party will take any appeal or future legal action of any matter afterwards.

    6.Each party will cause the above cause numbers to be abated pending the decision by the arbitrators, and submit the decision of the arbitrators for adoption by the respective courts. The parties will ask the courts to refer the cases for arbitration to Texas Islamic court within "Seven Days" from the establishment of the Texas Islamic Court panel of Arbitrators. The assignment must include ALL cases, including those filed against or on behalf of other family members related to the parties. Each party will notify the other party, Texas Islamic Court, and their respective attorneys, in writing of the assignment of all the above Cause Numbers from the above appropriate District Court to Texas Islamic Court.
       

All five parties signed this Arbitration Agreement, as did the attorneys for Jamal, Rola, and Saadallah. The document was witnessed by four other individuals whose signatures are on the document. At the hearing on Appellants' motion to compel arbitration, Appellants' attorney explained the circumstances regarding the parties' decision to submit to arbitration:

    The parties got together and approached my client, Rola Qaddura, with the proposal that they submit this to arbitration. The parties got together over the weekend. They all signed it and then directed their attorneys to take whatever legal action was necessary to enforce the arbitration.
       

On September 30 and October 3, 2002, the same five parties, and the same two attorneys, signed a document entitled "Stipulations and Agreements Covering Arbitration." This document reiterates much of the binding language of the Arbitration Agreement and specifies that the parties agree to be bound by the rules of arbitration of the Texas Islamic Court.

A dispute arose among the parties over the scope of the issues that were subject to arbitration under the Arbitration Agreement, and on October 7, 2002 Rola filed a motion in the divorce suit seeking to stay litigation and compel arbitration.(2)  Saadallah and Aida filed an identical motion in the protective order suit. Appellees did not file written objections or responses to Appellants' motions.

The hearing in the trial court:

On November 14, 2002, the trial court held a hearing on Appellants' motion to compel arbitration. The court heard argument of counsel, and Appellants established that the signatures on the Arbitration Agreement and the stipulations document were authentic.(3) The attorney representing Rola, Saddallah, and Aida and the attorney representing Jamal told the court their clients could not agree on what issues were covered by the Arbitration Agreement.

Appellants argued it covered every issue raised in the pending lawsuits, including those issues upon which the trial court had previously entered interlocutory rulings (specifically, the matters covered by the partial summary judgment, which ruling Appellants emphasized was interlocutory and subject to being changed by the court until final judgment is entered).(4) Appellants told the court that since there was a dispute about the scope of the Arbitration Agreement, pursuant to the Texas General Arbitration Act it was the court's duty to decide what the Arbitration Agreement covered.

Appellee Jamal argued in favor of arbitration but claimed the Arbitration Agreement only covered those issues that had not been previously determined by the court (that is, the Arbitration Agreement excluded the subject matter of the prior partial summary judgment). Appellee Osama's attorney stated he revoked his client's signature and consent to the Arbitration Agreement.(5)

cont'd
 
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« Reply #14 on: February 17, 2008, 03:00:27 PM »

The trial court determined the parties disagreed regarding the scope of the Arbitration Agreement and it therefore was not valid or binding. The court denied Appellants' motions to stay litigation and compel arbitration. The trial court did not make findings of fact or conclusions of law.(6) Rola, Saadallah, and Aida have appealed the court's orders refusing to compel arbitration and denying a stay of the pending proceedings.(7)

The Texas General Arbitration Act

The Texas General Arbitration Act provides:

    § 171.001. Arbitration Agreements Valid

    (a) A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that:

        (1) exists at the time of the agreement; or

        (2) arises between the parties after the date of the agreement.

    (b) A party may revoke the agreement only on a ground that exists at law or in equity for the revocation of a contract.

Tex. Civ. Prac. & Rem. Code Ann. § 171.001. A court shall order the parties to arbitrate on application of a party showing an agreement to arbitrate, and the opposing party's refusal to arbitrate. Id. § 171.021(a). If a party opposing the application denies the existence of the agreement, the court shall summarily determine that issue. Id. § 171.021(b). The court shall order the arbitration if it finds for the party that made the application. Id. An order compelling arbitration must include a stay of any proceeding subject to section 171.025. Id. §§ 171.021(b), 171.025.

A party seeking to compel arbitration must establish the existence of an arbitration agreement, and show that the claims raised fall within the scope of the agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999) (orig. proceeding). Once the party establishes a claim within the arbitration agreement, the trial court must compel arbitration and stay its own proceedings. Id.; Ikon Office Solutions, Inc. v. Eifert, 2 S.W.3d 688, 693 (Tex. App.--Houston [14th Dist.] 1999, no pet.). The trial court may summarily decide whether to compel arbitration on the basis of affidavits, pleadings, discovery, and stipulations of the parties. Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992) (orig. proceeding). The court must conduct an evidentiary hearing, however, when there are disputed material facts. See id.

In the instant case, the parties did not deny the existence of the written Arbitration Agreement, they differed over which claims fell within the scope of the Agreement. Arbitration is strongly favored under federal and state law. Cantella & Co. v. Goodwin, 924 S.W.2d 943, 944 (Tex. 1996) (orig. proceeding); Prudential Sec. Inc. v. Marshall, 909 S.W.2d 896, 898 (Tex. 1995) (orig. proceeding). Any doubts regarding the scope of an arbitration agreement should be resolved in favor of arbitration. Cantella, 924 S.W.2d at 944; Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 880 (Tex. App.--Waco 1992, writ denied). Every reasonable presumption must be decided in favor of arbitration. See Ikon, 2 S.W.3d at 693.

Standard of Review on Appeal

On appeal, we must determine whether the trial court's ruling as to the scope of the Arbitration Agreement was an abuse of discretion. See Am. Employers' Ins. Co. v. Aiken, 942 S.W.2d 156, 159 (Tex. App.--Fort Worth 1997, no writ). We must decide whether the trial court's ruling was arbitrary and unreasonable, that is, made without reference to any guiding rules or principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); S.W. Health Plan, Inc. v. Sparkman, 921 S.W.2d 355, 357 (Tex. App.--Fort Worth 1996, no writ). The trial court's legal conclusions are reviewed by us de novo. See Ikon, 2 S.W.3d at 693.

Whether the Arbitration Agreement imposes a duty to arbitrate the claims in a particular dispute is a matter of contract interpretation. See Am. Employers' Ins., 942 S.W.2d at 159; BDO Seidman v. Miller, 949 S.W.2d 858, 860 (Tex. App.--Austin 1997, writ dism'd w.o.j.) (op. on reh'g). Whether a contract is ambiguous is a question of law. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). If there is no ambiguity, the construction of the written instrument is a question of law for the court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). Our primary goal in construing a written contract is to ascertain and give effect to the intent of the parties as expressed in the instrument. See Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998); Nat'l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995). If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Nat'l Union, 907 S.W.2d at 520; Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

An ambiguity does not arise simply because parties advance differing interpretations of the terms of a contract. Columbia Gas, 940 S.W.2d at 589; Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994); Sun Oil Co. v. Madeley, 626 S.W.2d 726, 727 (Tex. 1981). For an ambiguity to exist, the language of the contract must remain uncertain or subject to two or more reasonable interpretations after applying the pertinent rules of construction. Columbia Gas, 940 S.W.2d at 589.

In construing the Arbitration Agreement, we are to examine all parts of the document and the circumstances surrounding the formulation of the contract. See id.; Nat'l Union, 907 S.W.2d at 520; Forbau, 876 S.W.2d at 133. We must consider all of the provisions with reference to the entire Arbitration Agreement; no single provision will be controlling. See Coker, 650 S.W.2d at 393; Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 132 (Tex. App.--Houston [14th Dist.] 2000, pet. dism'd). Only where a contract is determined to be ambiguous after application of the rules of construction may the courts consider parol evidence of the parties' interpretations. Nat'l Union, 907 S.W.2d at 520; Sun Oil Co., 626 S.W.2d at 732. Where there is a broad arbitration clause, arbitration of a particular grievance should not be denied unless it can be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Kline v. O'Quinn, 874 S.W.2d 776, 782 (Tex. App.--Houston [14th Dist.] 1994, writ denied), cert. denied, 515 U.S. 1142 (1995).

Discussion

In three issues Appellants contend: the Arbitration Agreement is valid and binding and encompasses any dispute or matter upon which the trial court could subsequently rule at trial, including the claims made the basis of the prior interlocutory partial summary judgment (issues one and three); and the trial court erred in holding the Arbitration Agreement was invalid for the lack of signature of Osama's trial attorney (issue two).

We summarily overrule issue two because there is no indication in the record that the trial court's ruling was based upon the lack of signature of Osama's attorney on the Arbitration Agreement.

In response to issues one and three, Appellee Jamal asserts the trial court properly denied arbitration because there was no "meeting of the minds" inasmuch as the parties could not agree on the scope of the Agreement and Appellants offered no evidence regarding the Agreement.(Cool

cont'd
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