Florida Avoids Passage of Foreign Law Ban Through Rational Compromise that Codifies Existing Case Law

Press Release by International Law Section of Florida Bar (ILS) – May 12, 2014

Florida Avoids Passage Of Foreign Law Ban Through Rational

Compromise That Codifies Existing Case Law

On May 12, 2014, Florida Governor Rick Scott signed SB 386, a bill describing the application of foreign law in Florida courts in family law and child custody cases.  The bill is a compromise measure drafted by Senator David Simmons (R – Altamonte Springs) with the help of the ILS.  The original bill, sponsored by Senator Alan Hays (R – Umatilla) was similar to proposed legislation introduced in over 30 states seeking to severely restrict the application of foreign law in state courts.  That movement grew out of an effort to ban the use of Sharia law, which includes Islamic laws and customs, in U.S. courts.  When a federal court in Oklahoma struck down that state’s legislation expressly banning the use of Sharia law on First Amendment grounds, the proponents of such legislation changed tactics and sought to essentially ban the use of any foreign law in state courts.  For example, had the original version of the bill passed, a Florida court may not have been able to enforce an Argentinian choice of law provision in a pre-nuptial agreement entered into in Argentina by an Argentinian couple who later moved to Florida and filed for divorce.

The ILS, and a coalition of legal, business, and other groups, fought passage of the original version of the bill during the last three legislative sessions.  The ILS argued that the original bill created an unworkable standard that would have prevented state courts from applying foreign law unless the court found that the foreign law in question granted the parties the “same fundamental rights” as the Florida or U.S. Constitutions.  Because even well-developed western democracies protect the rights and privileges of their citizens in different ways, the original version of the bill could have effectively eliminated, or at the very least greatly complicated, the ability of Florida courts to apply foreign law.  The ILS also argued that such legislation was unnecessary since existing Florida case law already specified a standard for applying foreign law in Florida and passage of the original bill could have damaged Florida’s well-deserved image as a cosmopolitan state that welcomes international trade and commerce.

The compromise measure drafted by Senator Simmons and signed by Governor Scott was a strike-all amendment that entirely replaced the original bill by Senator Hays.  The compromise measure simply restates in statute the existing standard in Florida case law regarding application of foreign law, which is that a state court is free to apply foreign law in a Florida proceeding unless it determines that the foreign law in question violates Florida public policy.  Accordingly, the compromise bill signed into law by Governor Scott does not change the existing law in Florida in any way.  In fact, a provision of the bill expressly provides that “[t]he purpose of this section is to codify existing case law, and that intent should guide the interpretation of this section.”

The ILS is pleased to have played a leading role in avoiding passage of a foreign law ban in Florida through the enactment of the compromise measure crafted by Senator Simmons that reaffirms existing case law regarding the application of foreign law in Florida in family law and child custody matters.