On May 12, Gov. Rick Scott signed Senate Bill 386 describing the application of foreign law in Florida courts in family law and child custody cases.

The bill was a compromise measure drafted by state Sen. David Simmons, R-Altamonte Springs, with the help of the international law section of the Florida Bar.

The original bill, sponsored by state Sen. 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, proponents of the legislation changed tactics and sought to essentially ban the use of any foreign law in state courts.

That quickly caught the attention of the ILS, which has worked hard over the last 10 to 15 years to create the necessary legal infrastructure to make Florida—and Miami in particular—one of the world’s leading centers for the practice of international law.

The ILS and a coalition of other groups fought passage of the original version of the bill during the last four legislative sessions. The section argued the language 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 crippled, or at the very least greatly complicated, the ability of Florida courts to apply foreign law.

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 prenuptial agreement entered into in Argentina by an Argentinian couple who later moved to Florida and filed for divorce.

Compromise Language

The ILS further argued that such legislation was unnecessary since existing Florida case law already specifies a standard for applying foreign law in Florida which ensures that any foreign law contrary to our core values would not be used in Florida courts.

The ILS was also opposed to passage of the original bill because of its anti-Islamic origin and the related rhetoric used by some supporters of the measure.

That is not Florida. Florida is a tolerant state with a well-deserved reputation as a cosmopolitan jurisdiction that welcomes international trade and commerce. Approval of such a measure could have damaged that image and undermined Florida’s ability to attract foreign tourism and investment.

Despite the ILS’s fierce opposition to the original bill, the legislation moved through committees in both chambers based on party-line votes with Republicans voting in support and stood a good chance of eventually passing the Republican-controlled Legislature in Florida.

In order to avoid that outcome and all the negative consequences that would flow therefrom, the ILS agreed to work with Sen. Simmons to draft the compromise bill that was enacted into law. The compromise measure drafted by Simmons and signed by Scott was a strike-all amendment that entirely replaced the original bill by 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.

The compromise bill signed into law by Scott does not change the existing law in Florida in any way.

In fact, a provision of the bill specifically provides that “the purpose of this section is to codify existing case law, and that intent should guide the interpretation of this section.”

In an effort to help ensure consistent application of existing law, the compromise bill expressly incorporates the case law used to fashion its provisions into the bill’s legislative history.

The ILS is pleased that Florida avoided enactment of a foreign law ban through passage of the compromise measure and is hopeful that this compromise legislation will serve as a model for the remaining states in the country still wrestling with this issue.