Passage Of Controversial Law Could Tarnish Florida’s Reputation As International Dispute Resolution Center

by Bilzin Sumberg
Contact Bill 58 and House Bill 351 Seek to Prohibit Florida Courts from Applying Foreign Laws in Family Law Disputes

You may not have heard of the think tank called the American Public Policy Alliance (APPA), or its “American Laws for American Courts” initiative, which “was crafted to protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Shariah Law.” But APPA has been aggressively promoting model legislation that would prevent American courts, as well arbitral tribunals sitting in the United States, from applying foreign laws or foreign legal doctrines — even if the parties themselves have chosen to have foreign law apply to the resolution of their disputes. For Miami, which is a city that is trying to establish itself as a center for international litigation and arbitration, the passage of this sort of legislation would be devastating — and it may occur during this year’s legislative session in Tallahassee.

Senate Bill 1294

A bit of context: On March 8, 2011, Florida State Senator Alan Hays (Republican — Eustis, FL) introduced Senate Bill 1294, which would have restricted or eliminated the applicability of foreign laws and foreign legal principles, including choice of law and choice of venue provisions, in nearly all cases and arbitrations pending in Florida. The Florida Senate version of the bill passed in the Florida Judiciary Committee on a 5-2 vote, and international litigation and arbitration practitioners in Florida, among other constituencies, mobilized to prevent its passage into law. Thanks in no small part on the lobbying efforts of Florida lawyers, SB 1294 died in the Commerce and Tourism Committee.

Senate Bill 58 & HB 351

Unfazed, in November 2012, Senator Hays introduced Senate Bill 58, a bill that, essentially, would create a Florida rule of civil procedure prohibiting the application of foreign laws in the context of family law disputes (including, but not limited to, disputes covered by Chapters 61 and 88 of the Florida Statutes — which govern marriage, child custody, and divorce).  A companion bill has been introduced in the Florida House of Representatives in the form of HB 351.

On December 5, 2012, SB 58 was referred to several committees. On March 6, 2013, an amended, yet still problematic, version of SB 58 was approved by the Senate Judiciary Committee and now has been referred to the Governmental Oversight and Accountability Committee, the Children, Families, and Elder Affairs Committee, and the Rules Committee. Action is required because, although the scope of SB 58 is much narrower than SB 1294, its impact on Florida’s and Miami’s reputations as places that are open for business to handle international disputes will be tarnished.

Opposition to SB 58 and HB 351

Importantly, the American Bar Association (“ABA”), as well the International Law Section of The Florida Bar, the Anti-Defamation League, the Council on American-Islamic Relations, the American Civil Liberties Union, as well as other professional, civic, and religious organizations, have opposed, and continue to oppose, proposed legislation such as SB 58 and HB 351. In its August 8-9, 2011 House of Delegates Resolution, the ABA succinctly noted that proposed laws such as SB 58 and HB 351 “are inconsistent with some of the core principles and ideals of American jurisprudence,” “are unnecessary, as existing law and judicial procedure have already proven sufficient to deal with the concerns that such [proposed laws] were designed to address,” and are “likely to have an unanticipated and widespread negative impact on business, adversely affecting commercial dealings and economic development in the states in which such a law is passed and in U.S. foreign commerce generally.”

Impact of SB 58 on Legal Community

The impact that SB 58 may have on our legal community is real. For example, let’s take the hypothetical example of an Argentine couple living in Miami. The couple wants to dissolve their marriage in Florida, but they have a prenuptial agreement (called an “antenuptial” agreement in Florida) that holds that Argentine law applies and that the dispute will be resolved by arbitration. Currently, this is not a problem — Florida law governing the dissolution of marriages states that “[t]he court may enforce an antenuptial agreement to arbitrate a dispute in accordance with the law and tradition chosen by the parties.” Fla. Stat. § 61.052(5) (emphasis added). Importantly, however, if the Florida judge or arbitrator finds that the foreign law provision that in question violates Florida’s public policy, then the judge and arbitrator need not enforce it.

If SB 58 is passed into law, the outcome may be different — SB 58 holds that “[a]ny court [or] arbitration [tribunal]. . . decision violates the public policy of this state and is void and unenforceable if the court [or] arbitration [tribunal] . . . bases its ruling or decision in the matter at issue in whole or in part on any foreign law, legal code, or system that does not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges guaranteed by the State Constitution or the United States Constitution.”

In sum, unless the Argentine body of law that governs the prenuptial agreement in question grants the Argentine couple “the same fundamental liberties, rights, and privileges guaranteed by the” Florida and U.S. Constitutions — which is highly unlikely — then a Florida court’s decision applying Argentine prenuptial law will be void and unenforceable. Leaving for another day the likely unconstitutional nature of this law as well as its sheer impracticability — our already overworked judges will have to become experts in comparative law — the impact on Miami’s reputation as an international city will be substantial. Foreign businesses and investors will think twice about coming to Florida if they believe that certain disputes, which they believed would be governed by agreed-upon foreign laws, now will be resolved according to Florida law.

International law practitioners in Florida should be concerned about the momentum that SB 58 and HB 351 have received in the Florida legislature. If you believe that passage of this legislation will impact your practice, or if you are concerned that the passage of this law will hurt Florida’s pro-international investment and business image, then you should contact your local representative or senator immediately.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bilzin Sumberg | Attorney Advertising

Written by:

Bilzin Sumberg

Bilzin Sumberg on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.