157 It also shows how the rationale for comity shifted from private interests in convenience to public interests in respecting the sovereignty of other nations, a shift that has obscured the comity basis of some doctrines. Close Frank Vibert provides an expert analysis on how this situation has arisen from a combination of changes in the relative power and position of nations and the different values behind the organisation of domestic . 90. Court for S. Dist. . See Socit Nationale Industrielle Arospatiale v. U.S. Dist. v. 1985) (noting principles of comity would require recognition of extraterritorial acts of state if consistent with U.S. policy). Close and have declined to order discovery when doing so would interfere with the foreign proceedings. 692). x+ | TRUE 6. The word prescriptive refers to jurisdiction to prescribethat is, to make [a states] law applicable to the activities, relations, or status of persons, or the interests of persons in things. 61 263 which requires a showing of exceptional circumstances after consideration of several factors. 389 As noted above, in the late eighteenth and early nineteenth centuries, some rules of the law of nations were understood to be optional and thus more akin to comity. 539, 611 (1842). 375 (1919), reprinted in Ernest G. Lorenzen, Selected Articles on the Conflict of Laws 13662 (1947) (discussing Hubers views on the conflict of laws and their influence); Hessel E. Yntema, The Comity Doctrine, 65 Mich. L. Rev. .). See supra notes 257258 and accompanying text (discussing Ninth Circuits decision in Mujica). See Jurisdictional Immunities of the State (Ger. 159 213 U.S. 347, 35558 (1909). See, e.g., The Apollon, 22 U.S. (9 Wheat.) Close at 773 (Powell, J., concurring) (I would be uncomfortable with a doctrine which would require the judiciary to receive the Executives permission before invoking its jurisdiction.); id. Kirkpatrick & Co. v. Envtl. The shift from private to public rationales for comityfrom convenience to sovereigntyhad a number of consequences. a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency). 259 See, e.g., id. Close. 284 330 endstream 32 . (We are bound to give effect to the assignment [of personal property]. See Flomo v. Firestone Nat. xS**T0T0 BiU" 414 4(c)(1). 110 See supra note 152 and accompanying text (explaining restraint was difficult to justify on basis of convenience). J. Transnatl L. 819, 835 (2011). just a decade later the Court looked to principles of prescriptive comity to limit the extraterritorial reach of American antitrust law in F. Hoffmann-La Roche Ltd. v. Empagran S.A. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (citing Story, supra note 54, 38, at 42). But whatever particular form a doctrine takes, it is a courts obligation to apply its requirements faithfully rather than treating international comity as a blank check for discretion, either by the court or by the executive branch. 395 12 188(3). . No. 30 105 Close, During the nineteenth century, American courts invoked comity repeatedly as the basis for enforcing foreign lawsfrom those governing contracts, 129 Close But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. In light of all this, the Court concluded: Considerations of international rapport thus reinforce our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the fair play and substantial justice due process demands. ONE OF THE CHARACTERISTICS OF INTERNAL REVENUE TAX IS THAT THEY ARE-(RPCPA) as well as a large number of lower court cases. Close . 203 They consistently cited mutual convenience as the basis for extending comity to foreign laws, subject to the proviso that they do not produce injury to the rights of [the] government or its citizens. <>>>/BBox[0 0 377.76 588]/Length 47>>stream which may be defined as deference to foreign courts. They recognize the judgments of foreign courts and limit the jurisdiction of American courts. + Like Huber and Story, Gray noted the territorial sovereigns discretion not to enforce foreign law against its own interests. and the enforcement of foreign judgments in the United States. Since Intel, lower courts have recognized international comity as the underlying basis of 1782, Close Id. Because enforcement of arbitration clauses does not involve deference to foreign government actors, it is not a doctrine of international comity but rather reflects deference to private autonomy. Law Inst., Preliminary Draft No. Close 179 Even when adjudicative comity operates as a principle of restraintthe area in which international comity doctrines like forum non conveniens most frequently take the form of standardsmore rule-like alternatives exist. Intl L.J. Close L. Rev. 70 See 11 U.S. (7 Cranch) 116, 147 (1812) (Marshall, C.J.) 2014) (We also review the district courts decision to dismiss based on international comity for abuse of discretion.); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 755 (9th Cir. 192 As State Department Acting Legal Adviser Charles Brower testified, We at the Department of State are now persuaded. Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations, The result is the first comprehensive account of international comity applied by U.S. courts. This Articles definition of international comity differs from Hiltons in several respects. See Samantar, 130 S. Ct. at 2292 (noting immunity of foreign official was properly governed by the common law). Id. Close 5 0 obj But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.); supra notes 2631 and accompanying text (discussing Hilton). 1. Close, Finally, even when American courts have personal jurisdiction and decide to exercise it, they sometimes employ adjudicative comity as a principle of restraint to moderate that exercise. Much more problematic is judicial deference to the Executive with respect to the outcomes of particular cases. Harv.Int'l. LJ, 32, 1. . But it is critical to emphasize that Chevron deference is deference to the interpretation of a statute to be applied across a whole range of cases, and not deference with respect to how any particular case should be resolved. is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns.); The Santissima Trinidad, 20 U.S. (7 Wheat.) See, e.g., Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Lower courts have sometimes engaged in a case-by-case balancing of interests under section 403 of the Restatement (Third) of Foreign Relations Law. Lower courts applying the doctrine of foreign state compulsion in antitrust cases have noted its basis in comity. 281 These different ways of exercising adjudicative comity can best be viewed as parts of a larger whole. This suggestion drew a sharp dissent from Justice Kennedy, who noted that judicial independence. (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). Close Justice Scalia, in particular, seems to treat them as interchangeable. Justice Ginsburg noted that general jurisdiction under the Brussels I Regulation is limited to the place where the defendant is domiciled and that expansive U.S. views of general jurisdiction had impeded the negotiation of international agreements on jurisdiction and judgments. 391 . 373 41 5/30/2019 1 International Comity after the Tax Cuts and Jobs Act of 2017 (Part I) The NY State Bar Association - Tax Section Summer Meeting Chair: Lawrence Garrett, Ernst & Young LLP John Merrick, Internal Revenue Service Michael Mollerus, Davis Polk & Wardwell LLP Ansgar Simon, Covington & Burling LLP June 1, 2019 . (1) Actions in courts of other states. 317 and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. . Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. Samson v. Daway (Case Digest. 18 0 obj See Cohen, supra note 34, at 436 (Special deference to the Executive on foreign affairs now seems ill-placed.). xs 366 Prescriptive comity has an adjudicative counterparthere called adjudicative comity Practice in International Law 1017 (1977). Yes, with respect to all properties held by the educational institution. most famously in Hilton v. Guyot. <>stream x+ | Such a statute is effective as domestic law but does not relieve the United States of responsibility for the international law violation. The court applied the Eleventh Circuits test from Ungaro-Benages, engrafting onto it the reasonableness factors for prescriptive comity articulated in section 403 of Restatement (Third) of the Foreign Relations Law and giving significant weight to the view of the U.S. executive branch that the case should be dismissed. Close 178 National Internal Revenue Code as of its amendment by PD 69. The same could be said of other areas in which comity has been employed as a standard rather than a rule. 589, 606 (2011))). 387 See Restatement (Third) of the Foreign Relations Law of the United States 403 cmt. 4(b). International comity in taxation; reasons A practice of showing courtesy among nations. 401 201 Semantic Scholar is a free, AI-powered research tool for scientific literature, based at the Allen Institute for AI. at 1177 (Our argument also implies greater deference to the executive when it intervenes in private litigation.); id. Id. 251 See Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) (It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting privilege of bringing suit had been denied only to governments at war with the United States. x+ | 44 0 obj Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). . Which is not among the three (3) inherent powers of the state? Under customary international law, for example, the United States may apply its law extraterritorially only if it has a basis for jurisdiction to prescribe. See Paul, Comity in International Law, supra note 17, at 27 (examining how courts in other legal systems use either the classical doctrine or the broader notion of comity to manage conflicting public policies between sovereign states); Spencer Weber Waller, A Unified Theory of Transnational Procedure, 26 Cornell Intl L.J. 56 318 or to allow foreign governments to bring suit as plaintiffs in U.S. courts. 110 Close 281 Close In summary, adjudicative comity operates in American law through limits on personal jurisdiction as well as doctrines like forum non conveniens (and others of more doubtful status) that allow courts to dismiss cases over which they have jurisdiction. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. 20 Rep. No. 2004) (noting decision whether to grant antisuit injunction must take account of considerations of international comity); Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 366 (5th Cir. When an American court recognizes a foreign judgment, it restrains the exercise of its own authority to decide the merits of that case. Many states exercise jurisdiction to adjudicate on bases that other states find exorbitant, 9, 2432 (1966) (discussing Hubers conception of comity and comparing it to others). Kirkpatrick & Co. v. Envtl. (forthcoming 2016) (manuscript at 3364) (on file with the Columbia Law Review) (examining reasons for Courts deference to views of foreign sovereigns who file amicus briefs). 1987) (concluding factors favoring antisuit injunction are not sufficient to overcome the restraint and caution required by international comity). 16 320 2004) (holding even if Palestine met international law criteria, it should not be considered foreign state under FSIA unless recognized by United States); cf. 393 Close v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. Id. Close Apr. 11 Court for S. Dist. International comity has performed a variety of functions in American law. 194 Va. 1799) (No. As a principle of restraint, adjudicative comity finds expression in a number of doctrines. endstream Similarly, when an American court uses international comity as a principle of restraint, it is often because that court recognizes a foreign court as the more appropriate forum, a foreign lawmaker as a more appropriate source of rules, or a foreign government as a sovereign coequal with the United States. 109 H 151 23 0 obj Wash. L. Rev. endstream The American Law Institutes proposed federal judgments statute, on the other hand, would require reciprocity. 3 Joseph H. Beale, A Treatise on the Conflict of Laws 71, at 1965 (1935); see also A.V. endstream 756, 757 (C.C.D. 2011) (en banc) (plurality opinion) (McKeown, J.) Id. art. 236 This problem has assumed great importance recently, especially since the war, due in the first instance to the fact that in every country taxation . Erie R.R. Simply put, the notion that comity must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule, No.148420), Sasot v. People (Case Digest. Subscribe/renew. Close endobj 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), 2012 O.J. No. See supra notes 379380 and accompanying text (discussing Chevron). and deference to foreign governments as litigants is sovereign party comity. See W.S. . 232 Close Close endobj Close In the areas of prescriptive and adjudicative comity, one finds a mix of rules and standards. endobj 27 519, 589 (1839); see also The Sapphire, 78 U.S. (11 Wall.) 83), Bar exam flops = failure of law profs? Lower federal courts have used international comity as an abstention doctrine to defer to parallel proceedings in foreign courts, See 28 U.S.C. Law Inst. a. Id. + 87, 100 (2003) ([T]he Arospatiale decision improperly de-emphasized system values as compared to particular interests raised in individual cases, and. 84 There is certainly an aspect of discretion in the public policy exception, but that discretion is limited by the Acts requirement that the foreign judgment be repugnant to the public policy of this state or of the United States, a rather high bar. 400 See Guar. Hubers third maxim was different in two ways. <>stream Close 1919) (1689), reprinted in Lorenzen, supra note 71, at 164 (citations omitted). as a reasonable assumption about the focus of congressional concern in most cases. 280 114 But the courts are free to draw for themselves its legal consequences in litigations pending before them. 358 Close . 208 . at the expense of the interests of other countries. Posner & Sunstein, supra note 33, at 1182. 14 Asia Brewery v. CA (Case Digest. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 50712 (1947) (recognizing authority of district court to dismiss on grounds of forum non conveniens). and so Justice Holmes adopted a territorial approach using comity instead: For another jurisdiction, if it should happen to lay hold of the actor, to treat him according to its own notions rather than those of the place where he did the acts, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. Although Justice Scalia argued for a balancing of interests in Hartford, 509 U.S. at 81819 (Scalia, J., dissenting), he retreated in Spector to a more characteristic preference for categorical rules. endstream As with the recognition of foreign law, INTERNATIONAL COMITY AND INTERNATIONAL LAW. 1350 (2012). Id. <> (misquotation). A state courts recognition of a foreign judgment did not raise a federal question. See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). Under the doctrine of head-of-state immunity, immunity from suit follows automatically from the executive branchs recognition of a particular person as a foreign head of state, head of government, or foreign minister. 301 39 0 obj Close Does it operate as a principle of recognition to recognize foreign law, foreign courts, and foreign sovereigns as litigants? A panel of the Ninth Circuit later applied the doctrine to an expropriation claim brought under the FSIA, though that decision was later vacated when the case was reheard en banc. Close 19 Residence-based taxation The City of Manila, claiming that it can impose taxes under the Local Government Code, imposed a tax on banks (in addition to the percentage tax on banks (in Internal Revenue Code). Close 237 endobj xs endobj <>>>/BBox[0 0 377.76 588]/Length 46>>stream Posner and Sunstein consider only a limited number of comity doctrines. 248 193 H Close See supra notes 7491 and accompanying text (discussing Huber and Story). 263 337 J. Comp. Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). 1999] International Comity and the Foreign Ta:r: Credit 85 is the failure to allow the crediting of taxes collected by foreign governments pursuant to provisions that might fairly be described as integral to a general income tax but which do not conform to a conception of income taxation as developed by the United States. Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. on Admin. As this territorial view of sovereignty weakened, however, comity came to play new roles in American law. Close See WestlawNext, http:// 275 See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010) ([Schooner Exchange] was interpreted as extending virtually absolute immunity to foreign sovereigns as a matter of grace and comity. (quoting Verlinden, 461 U.S. at 486)); Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) ([Schooner Exchange explained] that as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign . Co. of N.Y. v. United States, 304 U.S. 126, 137 (1938) (What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government.). 342 (minus the reciprocity requirement). . See id. Close Close, In other areas, there is no international law core, and the rules mediating the relationship of the U.S. legal system with other countries are entirely rules of international comity. As Part III explains, international comity is not just distinct from international lawit is deference to foreign government actors that is not required by international law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity. 285 . These opinions also assumed that international law required exhaustion. Close For a recent discussion of domestic comity doctrines, see Gil Seinfeld, Reflections on Comity in the Law of American Federalism, 90 Notre Dame L. Rev. 212 Forum non conveniens, prudential exhaustion, international comity abstention, and the granting of antisuit injunctions all require a case-by-case weighing of factors and are reviewed on appeal for abuse of discretion. 202, 21523 (2010) (discussing distinction between voluntary and customary law of nations). What principles are included in international comity? 141 180 American Banana, 213 U.S. at 356. See Klaxon Co. v. Stentor Elec. . 2, April, 1923) The problem of international double taxation is one of the most serious ques-tions that engages the attention of econo- The Supreme Court did not expressly hold that the common law governing immunity was federal common law, but that is how the opinion has been read. 577, 579 (C.C.D. and international comity abstention, As noted above, 56 0 obj 254 35 Close See id. menuDrawerCloseText menuDrawerOpenText Home. Other doctrines of international comity expressly reject a reciprocity requirement. Close Law Inst. 283, 353 (1822). Close See infra notes 406409 and accompanying text (discussing legislative history of FSIA). . 140 Immunity of Foreign States: Hearing on H.R. at 165 ([A]ll transactions and acts, in court as well as out,. Close Close . INS v. Chadha, 462 U.S. 919, 951 (1983) (The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.). International comity Territorial jurisdiction 21. 1987) (States. 411 It may also depend on the good faith of the person raising the defense. See Joel R. Paul, Comity in International Law, 32 Harv. 260 L-19201. 350 283 271 See 28 U.S.C. endstream 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. The President also has statutory authority under the Second Hickenlooper Amendment to invoke the act of state doctrine in cases where the statute would otherwise make the doctrine inapplicablespecifically where property expropriated in violation of international law is brought to the United States. 299 The author is grateful to Mary Kay Kane for this point. Story, supra note 54, 38, at 41. With these new roles came new justifications for comity, specifically public interests in sovereignty and fostering friendly relations with other nations, which ultimately eclipsed comitys original rationale of commercial convenience serving private interests. treat it as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the consequence of violation.). 42 0 obj All kinds of hybrid combinations are possible.). Close 31 0 obj Close See, e.g., Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 65051 (N.Y. 2006) (characterizing 1962 Uniform Act as adoption of well-settled comity principles); Kwongyuen Hangkee Co. v. Starr Fireworks, Inc., 634 N.W.2d 95, 97 (S.D. Id. 332 29 0 obj 55 Close but there were important differences between Hubers first two maxims and his third. 191, 20510 (2003) [hereinafter Slaughter, A Global Community of Courts] (discussing emergence of judicial comity). See 28 U.S.C. Probs., Summer 2008, at 19, 20 (Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches.). 164, 167 (1870) (allowing foreign sovereign to bring suit in U.S. courts because [t]o deny him this privilege would manifest a want of comity and friendly feeling). See Socit Nationale Industrielle Arospatiale v. U.S. Dist. Close When push comes to shove, the domestic forum is rarely unseated. The doctrine of foreign state compulsion, for example, restrains the application of U.S. law but depends on a prior recognition that foreign law requires the conduct that U.S. law would prohibit. . See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. It has served as the basis for recognizing foreign laws, foreign judgments, and the privilege of foreign governments to bring suit in U.S. court. 173 34 . 83 227 See Restatement (Third) of the Foreign Relations Law of the United States 441 (restating doctrine of foreign state compulsion); see also Anthony J. Colangelo, Absolute Conflicts of Law, 91 Ind. Close, In the area of prescriptive comity, one finds both rules and standards. See Lori Fisler Damrosch et al., International Law 816 (5th ed. endobj Close, 2. 1994). See 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. Close, Developments in the area of adjudicative jurisdiction mirrored those in the area of prescriptive jurisdiction as America moved from the nineteenth century to the twentieth. No. Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (applying presumption against extraterritoriality to legislation of Congress). The author is grateful to Steve Bundy and David Sloss for these points. The question, the Ninth Circuit wrote in Timberlane, was whether American authority should be asserted in a given case as a matter of international comity and fairness. Co., 517 U.S. 706, 723 (1996). Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. . 261. Close 2000e-1(b) (2012); see also Age Discrimination in Employment Act, 29 U.S.C. See supra note 45 and accompanying text (describing additional rationale for presumption against extraterritoriality). 146 A characteristic of taxes which means taxes are assessed with some reasonable rule of apportionment A. endstream 316 xs .); Answers in Genesis of Ky., Inc. v. Creation Ministries Intl, Ltd., 556 F.3d 459, 467 (6th Cir. 339 The Executive rarely intervenes in such comity cases, and even when it does so, its views appear to receive no deference. Close. Close 100 As a general matter, [d]ue process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant. 148 Co., 517 U.S. 706, 723 (1996). In some areas of foreign relations law todaylike foreign sovereign immunity and prescriptive jurisdictionone may think of an international law core and a comity penumbra, while in other areas all of the rules are rules of comity alone. Although Chief Justice Marshall did not use the word comity, Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade later that the doctrine expounded in that case stands upon principles of public comity and convenience. Close depends upon what our greatest jurists have been content to call the comity of nations); see also Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (noting spirit of comity lies behind enforcement of foreign judgments). A pragmatic assessment of those decisions adopting an interest balancing approach indicates none where United States jurisdiction was declined when there was more than a de minimis United States interest. 73 Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. 83 <>>>/BBox[0 0 377.76 588]/Length 46>>stream Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. 376 377 Continue reading 8 FALSE 8. Mujica v. Airscan Inc., 771 F.3d 580, 609 (9th Cir. Am. xs No. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 38 0 obj 394 Close This Article takes a different approach. H 95 One might think of the FSIA as an exercise of international comity by Congress, but it is meant to be applied by the courts. For a country to treat a defendant according to its own notions rather than those of the place where he did the acts, Justice Holmes wrote, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. w3TPI2T0 BC#=3\. <>stream . 240 Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, . Close Milbank LLP New York City Peter H. Blessing, Esq. 51 0 obj Recognition automatically confers the privilege of bringing suit in U.S. courts as a matter of comity, at least in the absence of a state of war with the United States. 409 145 .); Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 (Haw. (rejecting Securities and Exchange Commissions (SEC) argument that district court misapplied doctrine). 36 endstream 229 13 107 ,.. For consideration of international comity in other countries in the specific context of competition law, see generally Cooperation, Comity, and Competition Policy (Andrew T. Guzman ed., 2011) (discussing comity and antitrust in laws of the European Union, Brazil, Japan, and Israel, among others). This provoked a strong dissent from Justice Scalia, who thought the case should have been dismissed on the basis of prescriptive comity: the respect sovereign nations afford each other by limiting the reach of their laws. The Supreme Court has repeatedly emphasized the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. .). 277 w3TPI2T0 BC#=C3\. See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. endobj Close 11 Under 28 U.S.C. Close 45 Geo.LJ, 80, 53. Doctrines of prescriptive comity that federal courts use as principles of restraint apply only to federal statutes. Id. .). 290 at 761 n.19 (citing Perkins v. Benguet Consol. See infra notes 372374 and accompanying text (discussing executive recognition and immunity under FSIA). In summary, prescriptive comity operates as a principle of recognition in American law through state conflicts rules and the federal act of state doctrine. 193 Why are some comity doctrines state law, 13 0 obj Section 2(b) of the Torture Victim Protection Act imposes an exhaustion requirement by statute for human rights claims brought under that act. Id. 273 See id. The following are the inherent powers of the state except one. As with prescriptive comity and adjudicative comity, sovereign party comity operates in American law both as a principle of recognition and as a principle of restraint. Close With a number of these international comity doctrines, the Supreme Court has emphasized that the determination is committed to the sound discretion of the trial court. G.R. at 70. 315 U.S. courts have long invoked a spirit of comity to recognize foreign judgments at common law. (internal citation omitted). 160 See, e.g., In re Microsoft Corp., No. . . Today, recognition of foreign judgments in the United States is governed by state law, and most states do not impose a reciprocity requirement. Close, Sometimes, U.S. courts are asked to address the possibility of parallel foreign proceedings not by dismissing the U.S. suit but by enjoining the foreign proceeding. Close 42 U.S.C. Section 403 of the Restatement (Third) of Foreign Relations Law adopted Timberlanes interest balancing approach. But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. As a Principle of Restraint. Storys reference to the comity of courts was simply a rhetorical flourish to emphasize that courts exercise comity not on behalf of themselves but on behalf of their sovereign. The modern presumption against extraterritoriality, for example, has two rationales: (1) [i]t serves to protect against unintended clashes between our laws and those of other nations which could result in international discord; or elusive. Even in Storys day, Samuel Livermore called the comity of nations a phrase, which is grating to the ear, when it proceeds from a court of justice. Thisprinciple is based on the sovereign equality among states under international law, by virtue of which one state cannot exercise itssovereign power over another. 2005 Uniform Act, supra note 106, 4(c)(3) (emphasis added). 291 31, pages 262-262. Id. And while W.S. Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) ([P]ublic convenience seems to require that a question, which has once been fairly decided, should not be again litigated between the same parties. (W.W.L.) 214 . to those respecting the ownership of personal property, Justice Douglas once made the point more colorfully in an act-of-state case, writing that such discretion makes the court a mere errand boy for the Executive Branch which may choose to pick some peoples chestnuts from the fire, but not others. Close . Tectonics Corp., Intl, 493 U.S. 400, 405 (1990) (noting act of state doctrine bars U.S. courts from declar[ing] invalid the official act of a foreign sovereign performed within its own territory). at 733 n.21 (mentioning exhaustion as a further potential limitation). 414 153 . 383 362 163 but the Court leaned heavily on comity in Kiobel v. Royal Dutch Petroleum Co. to limit the federal-common-law cause of action for human rights violations under the Alien Tort Statute (ATS), emphasizing that the presumption serves to protect against unintended clashes between our laws and those of other nations which could result in international discord. If comity is neither a matter of absolute obligation. Choong Yong, 837 F.2d 33, 37 (2d Cir. . Eric Posner and Cass Sunstein have argued that courts should defer to the Executive in applying international comity doctrines because the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary. + 187 (Collector v. Goodrich International (b) In case of property held in trust . In Robinson v. Bland, Mansfield wrote that the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. Id. Justice Gray began by restating the traditional rule of strictly territorial sovereignty: No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. L. Rev. Prescriptive comity is comity to lawmakersoften legislatures, but sometimes courts or executive branch officials. endstream There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. 164, 167 (1870). See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. As a principle of restraint, adjudicative comity operates through a multitude of doctrines that limit the exercise of U.S. courts jurisdiction, often with the aim of avoiding multiple proceedings. Close 1350 note (Torture Victim Protection) (A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.). 25, at 31. Close xs 319 38, at 42. 172 d. Exemption of government entities recognized. Close One court recently observed that [a]lthough comity eludes a precise definition, its importance in our globalized economy cannot be overstated. But under the modern view of customary international lawa general and consistent practice of states followed by them from a sense of legal obligation 1 (K.B. The possibility of case-specific deference to the Executive under the FSIA is considered below. Although the alleged fraud occurred in the United States, the Court applied the presumption, reasoning that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States. Morrison, 130 S. Ct. at 2884. This Article also omits enforcement of arbitration clauses, which Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. said rested in part on concerns of international comity. 473 U.S. 614, 629 (1985). 113 Watson speculates that Mansfield was deliberately ignoring Huber in order to reach his decision, Watson, supra, at 68, and that the attorneys for Somersets owners must not have raised Huber since that would have forced Mansfields hand, id. Close. The principle of comity is manifested in a large number of American doctrines that mediate the relationship between the U.S. legal system and those of other nations. 2005). Close Whether or not rules of foreign sovereign immunity properly fell into the defeasible category, Marshalls opinion in The Schooner Exchange certainly treated them that way. *zgSL=/\., *BMdxVV lC8z6c^q; x/2@3P#yx,%WX[-LttDb c?/iI July 4, 2012 (690 Phil. . Close 102 Close See Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (noting foreign sovereign immunity is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 40809 (1964) (Under principles of comity governing this countrys relations with other nations, sovereign states are allowed to sue in the courts of the United States. Close Close See, e.g., In re Vitamin C Antitrust Litig., 810 F. Supp. 186 Close. This approach reflects the supposition that courts using the term have the sense, however inchoate, that a common principle lies behind certain doctrines. at 1205. (Applied prospectively, federal courts evaluate several factors, including the strength of the United States interest in using a foreign forum, the strength of the foreign governments interests, and the adequacy of the alternative forum.). Close Leather Co., 246 U.S. 297, 30304 (1918). Close See 28 U.S.C. Having briefly surveyed the historical development of international comity, this Article now looks in greater detail at the uses of international comity in American law today. 2015) (Understood correctly, however, the prior opinion imposed an exhaustion requirement that limits where plaintiffs may assert their international law claims. .). 351 at 789 (Brennan, J., dissenting) (arguing executive branch cannot by simple stipulation change a political question into a cognizable claim). 1827) (Porter, J.)) . 2011) (noting foreign state compulsion doctrine acknowledges comity principles by accommodating the interests of equal sovereigns and giving due deference to the official acts of foreign governments); Trugman-Nash, Inc. v. N.Z. See id. It is not the comity of the courts, but the comity of the nation. International comity b. w3TPI2T0 BC#=C3\. xS**T0T0 BiU" ` 52 .). Close See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 138 (2d Cir. 266 [T]he argument for deference to the executive is that it has more expertise than the courts in foreign relations and that the executives accountability for foreign relations is more important than the courts independence from political pressure. Choong Yong, 837 F.2d 33, 37 (2d Cir. See infra notes 404410 and accompanying text (discussing passage of Foreign Sovereign Immunities Act). After the Peace of Westphalia in 1648, the world was understood to be divided into separate and independent states whose territorial sovereignty was deemed to be exclusive and absolute. B. . 1984). 16 0 obj With the increased use of comity as a principle of restraint, however, more public rationales like respect for foreign sovereignty and the fostering of friendly relations took over. The Court has held that federal courts may stay their proceedings in deference to other federal courts. Close The same is true of foreign discovery under Arospatiale, which requires a particularized analysis of the respective interests of the foreign nation and the requesting nation. The panel quoted Sosa in support. A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide. Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. . 415 This Article uses adjudicative as counterpart to prescriptive, but no difference in meaning is intended. B. I and II only. Although doctrines of international comity sometimes overlap with rules of international law, the comity doctrines are domestic law and are generally not required by international law. a, at 132 (2006) (Declination of jurisdictionwhether via lis pendens or via forum non conveniensis closely related to recognition and enforcement of foreign judgments.); see also Calamita, supra note 37, at 650 (placing doctrines along continuum). x+ | 201 147 In the ATS context, an exhaustion requirement might be justified as an exercise of the federal courts authority to shape the federal common law cause of action. 1080, 1102 (1995) (In enforcing the antitrust laws, the Agencies consider international comity.); see also The Paquete Habana, 175 U.S. 677, 69394 (1900) (characterizing Executives decision not to seize coastal fishing vessels as prizes of war, prior to its evolution into rule of customary international law, as exercise of comity); United States v. Rauscher, 119 U.S. 407, 41112 (1886) (noting decision to deliver fugitive to foreign government in absence of extradition treaty was act of comity). 405 During the first half of the twentieth century, as international law moved away from a strictly territorial view of jurisdiction, comity began to play new roles, restraining the reach of U.S. laws and the jurisdiction of U.S. courts. 47252. 1782). 130 77 Huber, supra note 74, at 164. 54 308 94-1487, at 7 (1976), reprinted in 1976 U.S.C.C.A.N. Tectonics Corp., Intl, 493 U.S. 400, 409 (1990) (The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.). As this Article defines it, international comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law. 3 0 obj 2012). But the appropriateness of having the President make the status determination on which the doctrines turn does not depend on whether the doctrines are ones of comity or of international law. 296 267 29 the Ninth Circuit held that in ATS cases where the United States nexus is weak, courts should carefully consider the question of exhaustion, particularlybut not exclusivelywith respect to claims that do not involve matters of universal concern. 2005 Uniform Act, supra note 106; 1962 Uniform Act, supra note 106. 3227, 500 U.N.T.S. (International Comity. See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. 371 And doctrines that defer to foreign government actors as litigants, like a foreign governments privilege of bringing suit as a plaintiff and its immunity from suit as a defendant, are forms of sovereign party comity. Close 244 The Executives action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, the Court noted. 352 But this separation of powers rationale ultimately rests on comity, for it reflects the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this countrys pursuit of goals both for itself and for the community of nations as a whole in the international sphere. See Cohens v. Virginia, 19 U.S. (6 Wheat.) (3) Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. The finality of an award is a key feature and attraction of arbitration as a method of dispute resolution. Each of the international comity doctrines may be placed in one of the resulting boxes. Today, host countries generally hold primary jurisdiction to tax the active income 18 that is earned in their territories by foreign or domestic firms with permanent establishments. This Article contributes to the ongoing debates over the shape of those doctrines by showing that international comity may be expressed in rules rather than standards and may be exercised by courts rather than the Executive. See Hilton v. Guyot, 159 U.S. 113, 16364 (1895) (Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. Close, The label prescriptive comity also fits Hubers and Storys conception of comity as the recognition of foreign law. 164 . See, e.g., Doe v. Exxon Mobil Corp., 654 F.3d 11, 58 (D.C. Cir. 368 See id. 380 280 2934, 2012 O.J. 144 Compare Paul, Comity in International Law, supra note 17, at 20 (Storys intention in formalizing the doctrine was to enshrine comity as a mediating principle between free and slave states and thereby save the republic.), with Watson, supra note 89, at 40 (finding no evidence slavery was in the forefront of Storys mind on this matter). Leather Co., 246 U.S. 297, 30304 (1918))). See Sabbatino, 376 U.S. at 423 ([The act of state doctrine] expresses the strong sense of the Judicial Branch that. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. xS**T0T0 Bid]" Y International comity, on the other hand, does not bind the United States on the international plane or give rise to international responsibility. at 164. In the area of sovereign party comity, the Supreme Court has adopted a rule that any government recognized by the United States, and not at war with it, may bring suit in U.S. courts, Kirkpatricks approach was more rule-like than the approach in Sabbatino, where the Court suggested a case-by-case balancing of factors. But in the private-interest context there may be other factors that cut in favor of standards. But the Court also faulted the Ninth Circuit for ignoring the risks to international comity its expansive view of general jurisdiction posed. L. Rev. The substance over form doctrine is typically a "one-sided sword" used for the IRS's benefit. Third, this Article uses its categorization of international comity doctrines to challenge two enduring myths about comity: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. The statute expressly says that a district court may order a person within its district to provide evidence. Law Inst. 353 50 In Sabbatino, Justice Harlan observed that [o]ften the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. States in the United States have adopted a variety of methodologies for choosing the law to apply in a case that touches more than one jurisdiction. at 41011 (rejecting argument that unfriendliness, including severance of diplomatic relations, should lead to denial of privilege). 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