A. 42 U.S.C. Kirkpatrick & Co. v. Envtl. 59 06-10061-MLW, 2006 WL 1344091, at *4 (D. Mass. 372 163 A. I only. See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. endobj 34 at 1201. In Hartford Fire Insurance Co. v. California, the Supreme Court acknowledged the possibility of declining jurisdiction under the principle of international comity if the conduct prohibited by U.S. antitrust law were required by the law of another nation, although the Court found no such conflict in Hartford. See id. and still others preemptive federal law? 1987) (concluding factors favoring antisuit injunction are not sufficient to overcome the restraint and caution required by international comity). 24, 1989 (254 Phil. Justice Breyer has also sometimes asserted that a rule of prescriptive comity reflects principles of customary international law. 959) (Washington, J.). 210 Tr. . at 227 ([J]udgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country. John B. Bellinger III, The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunities, 44 Vand. Second, international comity is not just deference to foreign acts; it is deference to foreign government actors, a phrase that captures the use of international comity with respect to a foreign court prior to judgment, as well as the use of international comity in relation to foreign governments as plaintiffs or defendants in U.S. courts. L-21574. 387 This exception is a direct descendant of Hubers third maxim that a government should enforce foreign laws so far as they do not cause prejudice to the power or rights of such government or of its subjects. (International Comity. be required to sacrifice its own interests in favour of another; or to enforce doctrines which, in a moral or political view, are incompatible with its own safety and happiness, or conscientious regard to justice and duty.). Close See Cohen, supra note 34, at 436 (Special deference to the Executive on foreign affairs now seems ill-placed.). <>stream 158 <>stream 126 108 Close, Yet courts and commentators repeatedly confess that they do not really understand what international comity means. 2d 522, 544 (S.D.N.Y. while the Second Circuit considers them absolutely binding. <>stream Eric Posner and Cass Sunstein consider only the presumption against extraterritoriality, the act of state doctrine, foreign sovereign immunity, and the Charming Betsy canon (which is not really a comity doctrine, see infra notes 4648 and accompanying text), though they briefly allude to other doctrines without explaining them. Id. 229 endstream Even outside the Chevron context, they argue, courts should defer if the executive branch argues that the court should dismiss the case rather than reach the merits. See Sullivan, supra note 322, at 61 (A rule may be corrupted by exceptions to the point where it resembles a standard; likewise, a standard may attach such fixed weights to the multiple factors it considers that it resembles a rule. Is compulsory sterilization of criminals legal? Close . Id. Close The request for discovery may be made by the tribunal itself or by any interested person. Id. Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 7(a) (2006) (A foreign judgment shall not be recognized or enforced in a court in the United States if the court finds that comparable judgments of the courts in the United States would not be recognized or enforced in the courts of the state of origin.); see also John F. Coyle, Rethinking Judgments Reciprocity, 92 N.C. L. Rev. Close Close, In the area of prescriptive comity, one finds both rules and standards. The Schooner Exchange is sometimes read as applying international law, but Marshall treated the international rules governing immunity as defeasible by the United States. Nevertheless, the Fourth Circuit gives State Department determinations of conduct-based immunity substantial weight, 38, at 42. 320 403 Close Id. 358 . Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. Close See Story, supra note 54, 23, at 30 (When its own code speaks positively on the subject, it must be obeyed. In fact, the Court has distinguished forum non conveniens from comity in a domestic context on the ground that comity gives deference to the paramount interests of another sovereign, while forum non conveniens reflects a broader range of considerations like convenience to the parties. Close Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 2022 (1963)). 14mc00190 (JSR), 2014 WL 3893953, at *1 (S.D.N.Y. Close Colo. River Water Conservation Dist. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. 14 0 obj and the Second Circuit holding that the only fact that matters is the State Departments determination of immunity. . Childress, supra note 20, at 34. . Feb 27, 2017 (806 Phil. 175 154 The discretion not to recognize foreign rights was captured in the word comity. 77 Two assertions about international comity stand out: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. 3 endobj 2. International comity or treaty. d (U.S. <>stream 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. ,.. <>>>/BBox[0 0 377.76 588]/Length 47>>stream 174 Close forum non conveniens generally has not been considered a comity doctrine. 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. ), Judgment, 2002 I.C.J. 5 197 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. the rules for recognizing foreign judgments were considered rules of general common law. 87 63 See Am. Law Inst. Other scholars have likewise identified the doctrine of forum non conveniens as a manifestation of comity. the Supreme Court recognized the authority of a federal court to dismiss a suit over which it had jurisdiction on grounds of forum non conveniens. . 2006) (Applying [section 403] factors, we can only conclude that the doctrine of international comity does not require that we forego application of the United States Bankruptcy Code in favor of Bahamian bankruptcy law.); United States v. Nippon Paper Indus. Online 169, 188 (2010), http://www.yalelaw 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. 1, eff. 382 As a principle of recognition, prescriptive comity operates in American law today through state-law rules on the conflict of laws, the federal act of state doctrine, and the practice of some courts to recognize extraterritorial acts of state on the basis of comity. Co., 517 U.S. 706, 723 (1996). 246 U.S. 297, 30304 (1918). 32 overlap to a large degree). As a leading English writer explained, Dicey. Part III considers the relationship between international comity and international law. Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 95051 (D.C. Cir. Close at 733 n.21 (mentioning exhaustion as a further potential limitation). Part II discusses and categorizes the manifestations of international comity in American law, defending the inclusion of each doctrine and explaining why each of the categories represents a coherent group. Strikingly, the convenience rationale was adapted even to the seemly public doctrine of foreign sovereign immunity, which, the Court noted, stands upon principles of public comity and convenience. In Oetjen v. Central Leather Co., the Supreme Court said that the act of state doctrine rests upon the highest considerations of international comity and expediency and that to question the validity of a foreign act of state would very certainly imperil the amicable relations between governments and vex the peace of nations. 5 Id. The issue is not one of jurisdiction, but one of comity. (quoting Seattle Totems Hockey Club, Inc. v. Natl Hockey League, 652 F.2d 852, 855 (9th Cir. 2023-01-18T11:42:22-08:00 318 Close .); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum.). 1062, 1063 (C.C.D.R.I. at 117980 (discussing presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and (mistakenly) Charming Betsy canon). 79 See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 41112 (1964) (rejecting reciprocity requirement for foreign governments privilege of bringing suit in U.S. courts); Restatement (Second) of Conflicts of Laws 6 cmt. No. is compromised by case-by-case, selective determinations of jurisdiction by the Executive. (n.s.) 296 xs 57 56 0 obj (discussing exhaustion of local remedies under international law). Close 13 0 obj This Article defines international comity as deference to foreign government actors that is not required by international law but is incorporated in domestic law. 35 Close, The label prescriptive comity also fits Hubers and Storys conception of comity as the recognition of foreign law. 11 Palmer, Exorbitant Jurisdiction, 58 Me. <>stream Close Close In a majority of states, these rules are codified for money judgments in two uniform acts. Conduct-based immunity differs from status-based immunity in two respects: (1) it extends only to suits based on official acts; and (2) it lasts even after the foreign official leaves office. 347 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. In a sense, all of these doctrines defer to the executive branch. . and they continue to recognize foreign judgments not covered by the acts as a matter of comity. . 118 263 Zivotofsky, 135 S. Ct. at 2084 (Recognized sovereigns. 244 589, 606 (2011))). The same is largely true of foreign official immunity. The Court has also told district courts to engage in a comity analysis when considering the discovery of evidence abroad for use in U.S. courts 215 ,.. 188(3) (If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied. 7 Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations, general principles of taxation 1.without taxes, the government will be paralyzed for lack of motive. In the United States, Joseph Storys treatise on the conflict of laws made comity the foundation for recognizing foreign laws and judgments, but U.S. courts also looked to international comity as the basis for foreign sovereign immunity, the act of state doctrine, and the privilege of foreign governments to bring suit in the United States. This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity See The Paquete Habana, 175 U.S. 677, 700 (1900) (International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.) 253 ([T]he Exchange, being a public armed ship, in the service of a foreign sovereign,. Also, the Court determined that there were comity considerations, such as that the IRS and Mr. Smith were not the only stakeholders in the case, but also the Australian tax authorities, which did not tax Mr. Smith on the basis that such income was supposed to be taxed in the . Close 396 Courts have declined to defer to the Executive even with respect to doctrines like forum non conveniens that expressly incorporate public interest factors. For a list of exorbitant bases permitted under the laws of the E.U. 63 endstream Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). Indus. . Ch. 123 on Admin. 27 (equating international comity with customary international law); Hartford Fire Ins. 143193), Rights under the Intellectual Property Code, Constitutional policies re intellectual creation. . See 11 U.S.C. as well as a discretionary statute authorizing judicial assistance to foreign tribunals. 2005 Uniform Act, supra note 106, 4(c)(3) (emphasis added). Id. 132 The author believes double taxation is properly a constitutional limitation. 1897, 1930 (2015) (In recent years, however, the Court has delivered a series of defeats to the executive branch in cases on executive power and statutory interpretation.). Close. Giving the executive branch authority to make case-by-case determinations under doctrines of international comity is a bad idea. Statement 2: International comity is an inherent limitation in taxation. Posner and Sunstein consider only a limited number of comity doctrines. 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. Bar exam flunkers deserve recognition too, Law on overtaking that bad drivers don't know, Why lawyers matter - Marvic Leonen (TEDx). in the international sphere.). 108 endstream See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting recognized foreign governments not at war with United States may bring suit in U.S. courts). 254 Similarly, Joseph Beale observed that [t]he doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws. No. w3TPI2T0 BC#=3\. at 278990 (plurality opinion) (Kennedy, J.) . endstream 142 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, See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. As a Principle of Recognition. Although adjudicative comity arises in many different contexts, the basic question is often the samewhether to defer to a foreign tribunals resolution of a dispute. at 599 (quoting In re Maxwell Commc'n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). See Ritchie v. McMullen, 159 U.S. 235, 242 (1895) (By the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect.). 112 One might think of the FSIA as an exercise of international comity by Congress, but it is meant to be applied by the courts. Close No. at 5973. But see Am. 348 1 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. endstream Close To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. What distinguishes the doctrines in this section is that they manifest comity to foreign courts, whether by recognizing those courts judgments or by restraining the jurisdiction of U.S. courts. See Emory v. Grenough, 3 U.S. (3 Dall.) Id. Goss Intl Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 360 (8th Cir. Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. Close 157 That is a factual phenomenon, not a legal solution to it.). Close, The changing role of international comityattributable to international laws movement away from strict territorialityled in turn to a shift in the justifications for comity. Statement 1: Territoriality is one of the constitutional limitations on the power of taxation. Rep. 3, 51 (Feb. 14) (discussing head-of-state immunity). Close, While comity was the basis for enforcing foreign laws and judgments in American courts during the nineteenth century, it also served to restrain the exercise of jurisdiction over foreign sovereigns. Other exceptions are called discretionary. 319 But once comity came to be seen exclusively in terms of deference to the paramount interests of another sovereign, 206 50 at 405 (finding it unnecessary to address possibility of exception for cases in which the Executive Branch has represented that it has no objection to denying validity to the foreign sovereign act). at 20102. 1987) (This section states the principle of reasonableness as a rule of international law.). Id. Law Inst. Id. Close 299 on the Judiciary, Jurisdiction of U.S. Courts in Suits Against Foreign States, H.R. The relationship between international comity ) judgments Reciprocity, 92 N.C. L. Rev JSR ), 2014 WL,. ( c ) ( Kennedy, J. ) Suits Against foreign states, these rules codified! 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