Later cases have emphasized separation of powers as the basis for the act of state doctrine. .). Law Inst. . As a principle of restraint, it shields foreign governments and foreign officials from certain kinds of suits in U.S. courts. See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 138 (2d Cir. endobj Huber wrote that nothing could be more inconvenient to commerce and to international usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law. Priv. 1997) ([T]o the extent that comity is informed by general principles of reasonableness, see Restatement (Third) of the Foreign Relations Law of the United States 403, the indictment lodged against NPI is well within the pale.); In re Maxwell Commcn Corp., 93 F.3d 1036, 104653 (2d Cir. 107 214 Rep. 141, 141; 1 Black W. 257, 258 (K.B.) See, e.g., Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (observing because [t]he several States are of equal dignity and authority,. Close, Comity came to America with the rest of English common law. the laws of one State have no operation outside of its territory, except so far as is allowed by comity). 85 <>stream 415 315 279 169 Close Aug 15, 1995 (317 Phil. Close 234 J. Transnatl L. 911, 969 (2011) ([T]he Executive Branch engages in undelegated lawmaking when it makes head of state immunity determinations.). 335 This Article provides the first comprehensive account of international comity in American law, as well as the clear analytical framework that previous writers have complained was missing. In most of the preceding examples, American courts used comity to address problems created by a strictly territorial view of sovereigntyhow to explain the enforcement of a foreign law or judgment outside the foreign states territory, or the decision not to exercise jurisdiction over a foreign sovereign inside the United States territory. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. 338 17 173 Although an early Supreme Court case applying the doctrine in admiralty had referred to motives of convenience or international comity, 130 6 In more recent times, the Supreme Court has consistently characterized foreign sovereign immunity as a matter of grace and comity on the part of the United States. See Posner & Sunstein, supra note 33, at 1179 (listing Charming Betsy canon as comity doctrine). of Iowa, 482 U.S. 522, 54344 (1987) (noting concept of international comity requires particularized analysis of discovery requests). Id. 182 Rep. 6, 27 (Mar. . (emphasis omitted)). the Supreme Court has articulated comity-based rules to determine when foreign governments may bring suit as plaintiffs in U.S. courts, and Congress has adopted comity-based rules to determine when sovereign immunity shields them from suit as defendants. I, ch. Whether any particular legal doctrine should take the form of a rule or a standard is a perennial question. Close 133 115 121 100 Close See supra notes 198203 and accompanying text (discussing foreign state compulsion). Or does it operate as a principle of restraint to limit the reach of American law, the jurisdiction of American courts, and, more specifically, the jurisdiction of American courts over foreign sovereign defendants? Va. 1799) (No. We did not hold that plaintiffs failed to allege violations of international law in the first instance.). See infra Part III (explaining relationship between international comity and international law). . 183 International comity has performed a variety of functions in American law. 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 discretion not to recognize foreign rights was captured in the word comity. Sovereign party comity operates as a principle of restraint in American law through the doctrines of foreign state immunity and foreign official immunity, both of which fall under the more general heading of foreign sovereign immunity. Furthermore, prescriptive comity is exercised by courts. International Comity in Taxation Author & abstract Download Related works & more Corrections Author Listed: Clyde J. Crobaugh Registered: Abstract No abstract is available for this item. Going forward, it seems likely that prescriptive comity will continue to operate as a principle of restraint in American law, but primarily through the presumption against extraterritoriality, which the Supreme Court in Morrison instructed lower courts to apply in all cases. noun Synonyms Amenity, suavity, politeness, consideration. 310 190 Close. 35 16 The second rationalethat Congress is primarily concerned with domestic conditionsfirst appeared in the Supreme Courts 1949 decision in Foley Brothers as a reasonable assumption about the focus of congressional concern in most cases. No. Goss Intl Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 360 (8th Cir. In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. x+ | Id. 635). Pa. 1810) (No. 6a, 45(a)(3) (2012) (limiting geographic scope of Sherman Act and Federal Trade Commission Act). 414 It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sovereign party comity. 1985) (noting principles of comity would require recognition of extraterritorial acts of state if consistent with U.S. policy). Court for S. Dist. See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. , it was generally assumed that the recognition of foreign judgments was governed by state rather than federal law. It is based on the assumption that Congress is primarily concerned with domestic conditions.); see also William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Intl L. 85, 11719 (1998) (discussing domestic conditions rationale). 1, eff. 196 See supra note 74 and accompanying text (quoting Hubers maxims). to those respecting the ownership of personal property, 162 135 (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). 82), G.R. Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. 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. 360 Id. 539, 611 (1842). In these areas it makes sense to think of an international law core and a comity penumbra. Palmer, Exorbitant Jurisdiction, 58 Me. 145 Close endstream 407 1987)); see also E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 989 (9th Cir. 1945) (Hand, J.) endstream Mfg. 98 1965) (A state is not required by international law to give effect to a rule prescribed or enforced by another state. 233 For a discussion of the relationship between customary international law and comity with respect to immunity today, see infra notes 300301 and accompanying text. Close. And finally, even when a U.S. court takes jurisdiction, comity has been deemed relevant to how that jurisdiction is exercised with respect to matters such as the discovery of evidence abroad under the Hague Evidence Convention. (C 4) 2, 23; see also Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, annex I, 2007 O.J. See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (stating we would certainly consider [an exhaustion] requirement in an appropriate case). 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. 377 If only the second statement is correct . Close The Supreme Court in Hilton v. Guyot (1895) famously defined international comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." That definition is incomplete, however, as comity encompasses much more than the recognition of foreign acts. 370 . 341 213 U.S. 347, 35558 (1909). 1996) (observing doctrines of act of state, foreign sovereign compulsion, and international comity. As noted in the introduction, many doctrines of American law manifest the principle of international comity. I entirely agree with him. 212 28 259 60 0 obj 22 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. endobj 47 Modern courts and commentators have repeated the criticism. Close endstream The doctrine of forum non conveniens, for example, takes the form of a standard rather than a rule, but it is also binding on district courts. 202, 21523 (2010) (discussing distinction between voluntary and customary law of nations). But when the geographic scope of the Sherman Act again reached the Supreme Court in Hartford Fire Insurance Co. v. California, the Court refused to consider dismissal on grounds of international comity unless the conduct prohibited by U.S. law was required by foreign law. See Restatement (Third) of the Foreign Relations Law of the United States, ch. Id. . 1062, 1064 (C.C.D.R.I. Dairy Bd., 942 F. Supp. 253 As noted above, diplomatic immunity is codified in the Vienna Convention on Diplomatic Relations, while head-of-state immunity is a rule of customary international law. 411 ,.. This suggestion drew a sharp dissent from Justice Kennedy, who noted that judicial independence. 305 330 Once that focus has been established and the territorial reach of a provision determined, however, the geographic scope of the provision remains the same in each case. In Intel Corp. v. Advanced Micro Devices, Inc., the Supreme Court refused to impose a rule limiting assistance to information that would be discoverable under the foreign tribunals rules 277 291 Close 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. v. United States, 424 U.S. 800, 818 (1976) (identifying following factors: (1) which court first assumed jurisdiction over the property, if any; (2) inconvenience of the federal forum; (3) desirability of avoiding piecemeal litigation; and (4) order in which jurisdiction was obtained by the concurrent forums); see also Moses H. Cone Meml Hosp. Close Id. 89 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.). Such a statute is effective as domestic law but does not relieve the United States of responsibility for the international law violation. See 336 U.S. at 285 ([The presumption] is a valid approach whereby unexpressed congressional intent may be ascertained. See Sabbatino, 376 U.S. at 423 (The act of state doctrine. 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. The Court has held that federal courts may stay their proceedings in deference to other federal courts. 164 Dredging Co. v. Miller, 510 U.S. 443, 457 (1994) (holding federal law of forum non conveniens does not preempt state law). 57 0 obj . In a few states, conflicts rules are codified by statute, (L 339) 3, 3132 (listing exorbitant bases of jurisdiction prohibited by Lugano Convention). It is also important to note that some of the international comity doctrines rest partly on comity and partly on other bases. xS**T0T0 BiU" First, it bolstered the use of comity as a principle of restraint. Executive branch agencies may also have authority to determine the geographic scope of statutes they administer. Close. The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to international comity. Id. 1782(a) (2012) (The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. 33 0 obj Close, Judicial assistance to foreign tribunals under 1782, on the other hand, is clearly discretionary. endobj 141), Service incentive leave; conversion to cash, G.R. That is a factual phenomenon, not a legal solution to it.). See Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (permitting exercise of personal jurisdiction based on certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also supra note 136 and accompanying text (discussing International Shoe). See, e.g., Restatement (Second) of Conflicts of Laws 145 (Am. 37 S <>>>/BBox[0 0 377.76 588]/Length 47>>stream 174 Close Close, On the restraint side of the ledger, some courts applying section 403 of the Restatement (Third) of Foreign Relations Law have determined the geographic scope of U.S. statutes on a case-by-case basis. 240 350 Close ,.. In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. 111359. 124 endobj Tr. As a Principle of Recognition. Justice Scalia, in particular, seems to treat them as interchangeable. . 1971) (applying state law to enforcement of foreign judgment). The act of state doctrine was once said to rest on the highest considerations of international comity and expediency. 114 of Iowa, 482 U.S. 522, 54142 (1987). See Ramsey, supra note 19, at 90637 (referring to legislative comity). 2023-01-18T11:42:22-08:00 ,.. 240 373 213, 254 (acknowledging Courts holding in Samantar that federal common law now controls these issues). Acts 1981, 67th Leg., p. 1582, ch. <>stream 5 0 obj 542 U.S. 241, 261 (2004). 185 2012) (Like diplomatic immunity, head-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Rutledge, supra note 330, at 606). A characteristic of taxes which means taxes are assessed with some reasonable rule of apportionment A. Id. 16041607 (2012). 2011) (declining to consider whether exhaustion is required under ATS), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. x+ | Ramsey, supra note 19, at 95152. See Symeon C. Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. See id. 198 Close 65 Close Further, state courts were not obliged to follow the Supreme Courts decision in Hilton requiring reciprocity as a condition for recognizing foreign judgments. The substance over form doctrine is typically a "one-sided sword" used for the IRS's benefit. Close. Id. passing on the validity of foreign acts of state may hinder rather than further this countrys pursuit of goals. 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. + w3TPI2T0 BC#=3\. 30 J. Intl L. 20, 2829 (1948) (noting Peace of Westphalia established new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another, and free from any external earthly authority). In any event, that is certainly how the doctrine of comity developed in England and the United States. See infra notes 406409 and accompanying text (discussing legislative history of FSIA). x+ | See 28 U.S.C. Close In an early case, the Supreme Court characterized the doctrine as resting on the highest considerations of international comity and expediency. the notion that another nation might have an interest in seeing a particular dispute resolved under its law or in its courts, which American courts should respect out of comity, seemed a better fit for judges seeking to justify restraint. 274 Historically, however, comity had as much to do with private interests in convenience as with the public interests of other sovereigns. . 3 Joseph H. Beale, A Treatise on the Conflict of Laws 71, at 1965 (1935); see also A.V. Comity also gave the states of the Union some roomthough in the end not enoughto manage the issue of slavery. . each of which allows a district court to stay or dismiss a case over which it has personal jurisdiction. . ;UH,hZV&K]Ul#S6F0: GwB9EO,YzUL7*JMRXm]x*cJA"Kxo(,rY hYg"Pre.095dsOsuVsS=B*K . 239 Kirkpatrick & Co. v. Envtl. Close. Rep. 99, 78 (Feb. 3) (discussing state immunity for military activities during armed conflict); Arrest Warrant of 11 April 2000 (Dem. w3TPI2T0 BC#=C3\. Hartford Fire Ins. 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. See William S. Dodge, International Comity in American Law, 115 Colum. Some responsibility for the terminological confusion must be laid at Justice Scalias door. This is one of the international comity myths that Part IV will challenge. Close Practice in International Law 1017 (1977). 170 (We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.); Wadleigh v. Veazie, 28 F. Cas. A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide.

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