89 270 261 (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). This discretionary aspect of international comity has been responsible for much of the criticism that the doctrine has attracted over the years. Close, This definition of comity is both incomplete and ambiguous. wRw 5fw[Oe//[fEdy See supra note 195 and accompanying text (discussing cases applying section 403). 396 n;.V' dELj )fXQ/$+BP*QISz Iq]X#8AjR6/%y#HOgELg" [pe8>7y=1S6^n6 S+!]QaMk@7y]OsBBWZ!nU? S3U1`-6`Lj:4U&%# 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. In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909); see also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to avoid unreasonable interference with the sovereign authority of other nations); Hartford Fire Ins. xS**T0T0 Bid]" a . Close 1604 (2012) (stating foreign state shall be immune from the jurisdiction of the courts of the United States and of the States subject to exceptions); Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (discussing due process limits on personal jurisdiction); Sabbatino, 376 U.S. at 427 (holding scope of act of state doctrine must be determined according to federal law). . Tr. ([T]he doctrine of immunity for foreign sovereigns[] has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.); see also Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (Foreign sovereign immunity is and always has been, a matter of grace and comity . 1 (K.B. 112 Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. Rules may also have advantages with respect to comitys other purpose of promoting commercial convenience. 153 In 1797, Alexander Dallas even published a translation of Huber in the U.S. Reports. 57 298 endobj 316 , so long as its refusal to give it effect is not arbitrary according to the rules of the conflict of laws of states that have reasonably developed legal systems.). Close See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. Close Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. 196 (L 351) 1 (governing lis pendens and related actions); see also George A. Bermann, Parallel Litigation: Is Convergence Possible?, 13 Y.B. ONE OF THE CHARACTERISTICS OF INTERNAL REVENUE TAX IS THAT THEY ARE-(RPCPA) 384 <>>>/BBox[0 0 377.76 588]/Length 46>>stream . 202 1782. 2006) (recognizing possibility of abstaining on international comity grounds); Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings on H.R. Close 1991) (applying international law criteria to decide Palestine Liberation Organization was not foreign state). endstream 329 And when the court is asked to decline jurisdiction for lack of personal jurisdiction or on grounds of forum non conveniens, a foreign proceeding may not even have begun. v. United States, 424 U.S. 800, 817 (1976); see also Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Colorado River); Sprint Commcns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colorado River). 386), Compulsory sterilization of the intellectually weak. As noted in the introduction, many doctrines of American law manifest the principle of international comity. Close. xS**T0T0 BiU" .); Crawford, supra note 24, at 71011 (A claim will not be admissible on the international plane unless the individual alien or corporation concerned has exhausted the legal remedies available in the state which is alleged to be the author of injury.). 40 xS**T0T0 Bid]" e 264, 404 (1821) (Marshall, C.J.) Other scholars have likewise identified the doctrine of forum non conveniens as a manifestation of comity. <>stream 19 Residence-based taxation 143 16 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. But Posner and Sunstein elide some key distinctions between Chevron deference and case-specific deference and fail to respond to the two main normative arguments against a case-specific role for the executive branch in administering the doctrines of international comity. 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. which others have classified among the comity doctrines. 47252. 341 Close Although recognition of foreign law is a prerequisite for foreign state compulsion, the doctrine operates as a principle of restraint because its effect is to limit the application of U.S. law that would otherwise govern. Law Inst. Thisprinciple is based on the sovereign equality among states under international law, by virtue of which one state cannot exercise itssovereign power over another. Mar 6, 2013 (705 Phil. <>stream 181 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. See Aetna Life Ins. Hartford Fire Ins. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting) (observing judicial independence. Close Id. 165 Close Close It has been fertile in suggesting a discretion unregulated by general principles. 26 Id. For a summary of sovereign immunity determinations during that period, see generally Sovereign Immunity Decisions of the Department of State, May 1952 to January 1977 (Michael Sandler et al., eds. 2001) ([1962 Uniform Act] is a codification of the common-law doctrine of comity applied to foreign nation money judgments.). 337 148 101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). Close 4(c)(1). In his 1834 treatise on conflicts, Justice Joseph Story endorsed the view that comity is, and ever must be uncertain and must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule. 96 Part III considers the relationship between international comity and international law. But in fact, the separation-of-powers rationale for the act of state doctrine has international comity at its heart, for it rests on the perceived need for respect to foreign governments. 25 35 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept of State) [hereinafter Leigh Testimony]. Close Comity the principle of taxation of income where it arises; a country which is a financial center, such as Great Britain, will not relin- quish taxation on the ground of residence. xs 217 306 (misquotation). 150 L. Rev. See infra notes 382385 and accompanying text (discussing deference to executive branch determinations of immunity). S 302 Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 2022 (1963)). In a provocative book, Alan Watson argues that Story (and James Kent for that matter) misread Huber, who did not in fact intend to allow sovereigns unfettered discretion not to enforce foreign law. Yes, with respect to all properties held by the educational institution. 1605(a)(b). at 776 ([A]s a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.). v. Century Intl Arms, Inc., 466 F.3d 88, 92 (2d Cir. 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. 129 Although it is generally omitted from scholarly discussions of international comity, 51 J. Intl L. 708, 708 (1998) (Comity. 29, 2006) ([I]ssues of comity weigh against allowing the discovery in this case.). 756, 757 (C.C.D. 144 [3] Taxation is limited to the territory of the State. Close L. 601, 62478 (2006) (discussing principles of adjudicatory comity); Childress, supra note 20, at 63 (limiting analysis to one species of comity, adjudicatory comity); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Counsel cited Huber and courts relied on him. They frequently refer to it as vague * Martin Luther King, Jr. 406 In Pfizer, Inc. v. Government of India, the Court stated more broadly that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue, but in context the Court appears to have been referring to the Presidents recognition power and not any broader authority to deny recognized foreign governments access to U.S. courts. Close 21) (The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law. <>stream Restatement (Third) of the Foreign Relations Law of the United States, pt. International law binds the United States on the international plane, Part I begins with a brief history of international comity, from its origins in the Netherlands, through its adoption by English common law, to its transmission to the United States. 305 . 95. 224 . Close Friendly, Indiscretion About Discretion, 31 Emory L.J. 28 0 obj 1987). . See infra notes 406409 and accompanying text (discussing legislative history of FSIA). xs 166 28 U.S.C. Judge Cardozo wrote in Loucks v. Standard Oil Co. of New York that [t]he misleading word comity has been responsible for much of the trouble in denying the enforcement of foreign law. towards greater consideration of private interests. As a Principle of Restraint. Ironically, international comity doctrines that promise deference to the Executive put the Executive in the uncomfortable position of having to make decisions that may disappoint foreign governments. . No. See supra notes 7491 and accompanying text (discussing Huber and Story). 1782 (2012), U.S. courts may recognize foreign proceedings by providing judicial assistance with discovery, but courts will exercise restraint when discovery might in fact hinder the foreign proceeding. G.R. 195 endstream Court for S. Dist. Id. 31 The Seventh and Ninth Circuits have adopted a doctrine of prudential exhaustion for international law claims, requiring plaintiffs to exhaust their local remedies in accordance with the principle of international comity. Because the securities in Morrison had been purchased on a foreign stock exchange, the Court held that plaintiffs failed to state a claim under section 10(b). 267 Part II has surveyed the variety of ways in which international comity has been incorporated into doctrines of U.S. domestic law and has categorized those doctrines based on the actors to whom deference is given. 284 109 Id. As a principle of recognition, adjudicative comity operates in American law through the rules for recognizing foreign judgments and through judicial assistance to foreign courts with the discovery of evidence under 28 U.S.C. Banks v. Greenleaf, 2 F. Cas. Definition 1 / 155 The State, having sovereignty can enforce contributions (tax) upon its citizens even without a specific provision in the Constitution authorizing it. Close Close See Samantar, 130 S. Ct. at 2292 (concluding FSIA does not govern petitioners claim of [foreign official] immunity). Close 7 0 obj the act of state doctrine, The Supreme Court had applied a strictly territorial approach to personal jurisdiction in Pennoyer v. Neff. Close In Sabbatino, the Court expressly rejected an alternative standard of friendly relations: This Court would hardly be competent to undertake assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determination, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts. Play this game to review Other. on the Judiciary, Jurisdiction of U.S. Courts in Suits Against Foreign States, H.R. L. Rev. Indeed, one of the principal reasons for the FSIA was to shift determinations of foreign state immunity from the executive branch to the courts. See Restatement (Third) of the Foreign Relations Law of the United States ch. Close 160054), No-spouse, no-marriage employment policies. Instead, they simply apply the choice-of-law rules of the state in which they sit. Despite its slippery definition of comity, 113 See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. . Id. 390 J. Transnatl L. 819, 835 (2011). 1984). See, e.g., The Apollon, 22 U.S. (9 Wheat.) This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity 138 . Although the Restatement (Second) adopts a most significant relationship standard, 2. International comity or treaty. % One might characterize the act of state doctrine as one that rests in part on a basis other than comity. The act of state doctrine applies only to the public acts [of] a recognized foreign sovereign power, endstream 55 204 After Erie, it was generally assumed that the recognition of foreign judgments was governed by state rather than federal law. 278 Close. 75 Close. Due process B. 1971) (noting contract issues are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties). 77 Close Morrison v. Natl Austl. 217 The Supreme Court has consistently characterized foreign sovereign immunity as a matter of comity. The Schooner Exchange, 11 U.S. (7 Cranch) at 136. 343 Close See Restatement (Second) of the Foreign Relations Law of the United States 9 (Am. Id. Close 162 See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 95051 (D.C. Cir. Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. s~)4^ hu_ (We once viewed the [act of state] doctrine as an expression of international law, resting upon the highest considerations of international comity and expediency. (quoting Oetjen v. Cent. Id. Although an early Supreme Court case applying the doctrine in admiralty had referred to motives of convenience or international comity, ,.. 28 U.S.C. No rule of customary international law requires the recognition of foreign law, 9, 2432 (1966) (discussing Hubers conception of comity and comparing it to others). . 375 rightly done according to the law of any particular place, are valid even where a different law prevails.). <>stream 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.). When an award is annulled at the seat, however, enforcing courts in secondary . 2006) (A federal district court with jurisdiction over the parties has the power to enjoin them from proceeding with an action in the courts of a foreign country, although the power should be used sparingly. International comity . In particular, the Court has made clear that the presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law. Morrison v. Natl Austl. I entirely agree with him. For example, Quackenbush v. Allstate Insurance Co. distinguished Burford abstention from forum non conveniens on the ground that abstention was concerned with comity and federalism, principles involving deference to the paramount interests of another sovereign, whereas the doctrine of forum non conveniens reflected a broader range of considerations, most notably the convenience to the parties. Close endobj See Empagran, 542 U.S. at 168 ([T]his approach is too complex to prove workable.). (invoking unique genius of our Constitution in establishing two orders of government). 163 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. Colorado River, 424 U.S. at 818. 65 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. <>stream while in contract suits, [i]f the place of negotiating the contract and the place of performance are in the same state, the local law of that state will usually be applied. Close 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. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). See D.J. endstream 1607. Close They recognize the judgments of foreign courts and limit the jurisdiction of American courts. . 1827) (Porter, J.)) Huber, supra note 74, at 165. Close 78 See Sabbatino, 376 U.S. at 423 ([The act of state doctrine] expresses the strong sense of the Judicial Branch that. v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. (13 Tyng) 1, 4 (1816) (Parker, C.J.) 22 Lower courts have generally applied international law to decide if a defendant is a foreign state under the Act, endstream 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. Close 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. Courts complain that comity has never been well-defined. Bank Ltd., 130 S. Ct. 2869, 2881 (2010). endobj at 356. .). The Court has recognized exceptions for countries at war with the United States or not recognized by the United States. 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