This Article aims to support the role of international comity in U.S. foreign relations law by providing a proper definition and analytic framework and by freeing international comity from some of the myths that have surrounded it. 362, 370 (1824) (The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens.); see also John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. subject to a number of presumptive rules for recognizing foreign law. . 40 Other doctrines of international comity expressly reject a reciprocity requirement. But the Court also faulted the Ninth Circuit for ignoring the risks to international comity its expansive view of general jurisdiction posed. Close 37 endstream Subscribe/renew. 383 403 cmt. on the Judiciary, 93d Cong. 408 endobj . (noting Canadas State Immunity Act has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad); see also William S. Dodge, Is Torture an Official Act? No. 204 14 What changes is the time at which that question is askedbefore a suit is filed in foreign court, while it is pending, or after the foreign court has rendered judgment. Jurisdiction to prescribe is also distinct from jurisdiction to enforce. was scornful of comity being used as a basis for taking decisions, and English private international law has never really gotten over it. Briggs, supra note 37, at 149; see also Collins, supra note 20, at 9194 (recounting criticism of comity in England). It is also important to note that some of the international comity doctrines rest partly on comity and partly on other bases. 434 U.S. 308, 320 (1978). 220 Close See infra notes 361362, 393395 and accompanying text (discussing Posner and Sunsteins argument). 82 a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency). Situs or territoriality - As a rule, the taxing power cannot go beyond the territorial limit of the taxing authority. See, e.g., Or. 36 Close .). v. Bezdikian, 195 P.3d 604, 608 (Cal. ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 2022 (1963)). See supra notes 7491 and accompanying text (discussing Huber and Story). 273 Colo. River Water Conservation Dist. Info. See William S. Dodge, International Comity in American Law, 115 Colum. 304 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 Loucks v. Standard Oil Co. of N.Y., 120 N.E. 333 endobj note at 591 (Am. See, e.g., Doe v. Exxon Mobil Corp., 654 F.3d 11, 58 (D.C. Cir. No. 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. For an excellent review of possible solutions, see id. . Intl L.J. endstream w3TPI2T0 BC#=C3\. Mining Co., 342 U.S. 437, 44748 (1952)). . 177 Tectonics Corp., Intl, 493 U.S. 400, 409 (1990) (The act of state doctrine. while the Second Circuit considers them absolutely binding. 184 The doctrine of international comity is the traditional vehicle for this function, as we will see in both US conflicts doctrine and early nineteenth-century European choice of law. The combination of expanding international trade and climbing corporate income tax rates in the early part of this century required nations to evolve methods for reducing the level of international double taxation. Close It has held that [a]cts of foreign governments purporting to have extraterritorial effectand consequently, by definition, falling outside the scope of the act of state doctrineshould be recognized by the courts only if they are consistent with the law and policy of the United States. Id. 86 198 266 59 0 obj See Socit Nationale Industrielle Arospatiale v. U.S. Dist. 149 To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. Although the Third Restatement took the position that such interest balancing was required by customary international law, No. a. 110 As this territorial view of sovereignty weakened, however, comity came to play new roles in American law. 2001) ([1962 Uniform Act] is a codification of the common-law doctrine of comity applied to foreign nation money judgments.). Distinguishing between international and domestic law does not denigrate the important role of international law in mediating among national legal systems. .). 203 .); GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1030 (11th Cir. 326 261. [1] the factors considered by the second circuit in the comity balancing test include: (1) degree of conflict with foreign law or policy; (2) nationality of the parties, locations or principal places of business of corporations; (3) relative importance of the alleged violation of conduct here as compared with conduct abroad; (4) the extent to Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. See Posner & Sunstein, supra note 33, at 1204 ([I]n cases in which the executive has adopted an interpretation via rulemaking or adjudication, or is otherwise entitled to deference under standard principles of administrative law, the executives interpretations should prevail over the comity doctrines.); see also Bradley, supra note 66, at 69194 (arguing for Chevron deference on questions of geographic scope); Zachary D. Clopton, Replacing the Presumption Against Extraterritoriality, 94 B.U. 2009) (Dismissal of a suit on international comity grounds may sometimes be appropriate. answer choices . Dredging Co. v. Miller, 510 U.S. 443, 467 (1994) (Kennedy, J., dissenting) (noting forum non conveniens defense promotes comity and trade). Thisprinciple is based on the sovereign equality among states under international law, by virtue of which one state cannot exercise itssovereign power over another. In this sense, the FSIA is no different from state statutes governing the recognition of foreign judgments, which similarly codify rules of international comity for courts to apply. See id. First, it did not state the strictly territorial view of sovereignty but rather tried to solve a problem that territoriality created. a. w3TPI2T0 BC#=C3\. 347 Close 137 See 28 U.S.C. See infra section II.C (describing sovereign parity comity). 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. 355 346 See Guar. Close As Trey Childress has noted, because there is no clear analytical framework for exercising international comity, courts have been left to cobble together their own approach. Law Inst., Tentative Draft No. <> Co. of N.Y. v. United States, 304 U.S. 126 (1938). 2010) (en banc). 30 .). Close 119 14 Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. 38 H J. Comp. Doctrines of prescriptive comity that federal courts use as principles of restraint apply only to federal statutes. Statement 2: International comity is an inherent limitation in taxation. 281 Close There are three (3) kinds of limitations on taxation: inherent, direct constitutional and indirect constitutional. For example, many of the doctrines of adjudicative comity address the same basic question: When should a U.S. court defer to a foreign courts resolution of a legal dispute? In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. 22 Some international comity doctrines have been interpreted to permit case-by-case discretion by the executive branch. [3] Taxation is limited to the territory of the State. 312 <>stream See Ungar v. Palestine Liberation Org., 402 F.3d 274, 284 n.6 (1st Cir. See Sitaraman & Wuerth, supra note 34, at 1943 ([T]he diplomatic contact between executive branch officials and their foreign counterparts is in some contexts a reason for courts not to defer because deference would mean that State Department officials might be held responsible for negative decisions or that they are lobbied heavily by foreign governments. 42 U.S.C. w3TPI2T0 BC#=C3\. uuid:5691859e-1dd2-11b2-0a00-00ceffffc0ce See Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. Close xs forum non conveniens generally has not been considered a comity doctrine. Close These international comity doctrines operate to recognize foreign law and to restrain the reach of American law. 366 See supra notes 280281 and accompanying text (discussing diplomatic and head-of-state immunity). 214 See Interhandel (Switz. Only the first rationale reflects international comity. 1971) (articulating standard for torts); id. Posner and Sunstein consider only a limited number of comity doctrines. endstream 1919) (1689), reprinted in Lorenzen, supra note 71, at 164 (citations omitted). Close Of course, a few of the examples in this Article, like international comity abstention and foreign official immunity, did not have the same salience when Posner and Sunstein published their Article in 2007. Res. . 206 Jun 27, 2012 (689 Phil. Close 240 365 x+ | See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. 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. Close 283, 353 (1822). 401 endstream Close 315 at 1201. Close 25 For a list of exorbitant bases permitted under the laws of the E.U. Close 228 Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations, F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (Breyer, J.). 38, at 42. The recognition of foreign governments is controlled by the executive branch. 2009) (noting possibility of abstention when there is litigation pending in a foreign forum or, even absent such litigation, but finding abstention inappropriate in that case). Id. 2011) (en banc) (plurality opinion) (McKeown, J.) But they do so by attaching legal consequences to an exercise of executive authority made outside the context of litigation, rather than by deferring to the Executives judgment about whether any particular case should be dismissed. Close, Finally, in the context of litigation under the Alien Tort Statute, the Supreme Court has raised the possibility of case-specific deference to the political branches, stating that there is a strong argument that federal courts should give serious weight to the Executive Branchs view of the cases impact on foreign policy. . The substance over form doctrine is typically a "one-sided sword" used for the IRS's benefit. Corp. v. M.V. Law Inst., Tentative Draft No. The first two stated the territorial view of sovereignty in the strongest terms and permitted no discretion on the part of the sovereign, which could not regulate extraterritorially even to promote its most compelling interests. xs 272 <>stream As a principle of recognition, it allows foreign governments recognized by the United States, and not at war with it, to bring suit in U.S. courts. This Article provides the first comprehensive account of international comity in American law. (n.s.) . 85 Close 287 <>>>/BBox[0 0 377.76 588]/Length 47>>stream xs 47 See Sabbatino, 376 U.S. at 409 ([T]he privilege of suit has been denied only to governments at war with the United States. Comity refers to courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions - whether state, federal or international - not as a matter of obligation but out of deference and mutual respect. x+ | See Klaxon Co. v. Stentor Elec. at 5464 (providing contract theory analysis); see also id. at 412 (There are good reasons for declining to extend the principle [of reciprocity] to the question of standing of sovereign states to sue.). By contrast, the comity of nations (which Scalia equated with prescriptive comity) was exercised by legislatures when they enact laws. Close Co., 517 U.S. 706, 723 (1996). . Close 350 See, e.g., Republic of the Philippines v. Pimentel, 553 U.S. 851, 866 (2008) (Giving full effect to sovereign immunity promotes the comity interests that have contributed to the development of the immunity doctrine.); Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (Foreign sovereign immunity . 178 159 See infra Part III (explaining differences between international comity and international law). Co., 313 U.S. 487, 496 (1941) (holding conflict of law rules applied by federal court must conform to conflict of law rules in state where federal court is located); Somportex Ltd. v. Phila. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. x+ | This not only led American courts to use comity in new ways but also shifted the dominant rationale for comity from private interests in convenience to public interests in sovereignty and fostering friendly relations. Close 189999. 204 But comity as a principle of restraint was more difficult to explain in convenience terms. 2004) (holding even if Palestine met international law criteria, it should not be considered foreign state under FSIA unless recognized by United States); cf. 1309, 131435 (2015) (surveying comity in law of American federalism). Close H and the President. 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. 139 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. Close, During the nineteenth century, American courts invoked comity repeatedly as the basis for enforcing foreign lawsfrom those governing contracts, 165 Definition. Close 309 See Am. <>>>/BBox[0 0 377.76 588]/Length 47>>stream 9 0 obj Close State Laws 1962) [hereinafter 1962 Uniform Act]. Because the doctrine of forum non conveniens allows U.S. courts to restrain their exercise of jurisdiction in deference to foreign courts, it is properly considered a doctrine of international comity. INTERNATIONAL COMITY AFTER THE TAX CUTS AND JOBS ACT OF 2017 (PART TWO) Presented By: Diana L. Wollman, Esq., Panel Chair Cleary Gottlieb Steen & Hamilton LLP New York City Steve Edge, Esq. Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, . Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. . 264 After examining a number of different doctrines, Maggie Gardner concludes that open-ended discretion promotes parochial outcomes systemically because it enables the evolution of tests that increasingly lock in parochial results. Maggie Gardner, Parochial Procedure 4 (Aug. 20, 2015) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2651453 (on file with the Columbia Law Review). 300 141 bV mh[kw`C53[yR_WBD"YkeP#bi;k5lmm\'a and (3) that whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. Rev. 26 Close 44 Advocates. U.S. courts have also looked to comity when considering whether to enjoin parallel proceedings in a foreign court. Restatement (Third) of the Foreign Relations Law of the United States, pt. w3TPI2T0 BC#=3\. Close Id. x+ | 179 . See id. Close The Second Circuit has looked to principles of comity to determine whether to recognize foreign acts of state having extraterritorial effect. It is an inherent attribute of sovereignty. Quackenbush, 517 U.S. at 721. ); see also Holmes v. Remsen, 4 Johns. xS**T0T0 Bih]" S _ 1987). 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. 221 25, at 31. 37 0 obj 375 See id. Close A court has no discretion to decide on a case-by-case basis whether the purposes of foreign state immunity would be served by its application. 29, 2006) ([I]ssues of comity weigh against allowing the discovery in this case.). Even in this area, one encounters the occasional rule, such as the presumptive limitation of general jurisdiction over corporations to the place of incorporation and principal place of business. Daimler AG v. Bauman, 134 S. Ct. 746, 760 (2014). 81 Prescriptive comity has an adjudicative counterparthere called adjudicative comity 198, 201 (N.Y. 1918). It. 223 112 232 w3TPI2T0 BC#=3\. 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. In Bank of Augusta v. Earle, Chief Justice Taney declared that comity helped not just to promote justice between individuals but also to produce a friendly intercourse between the sovereignties to which they belong. xS**T0T0 BiU" (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). 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. It is not the comity of the courts, but the comity of the nation. 1782 permits federal courts to grant discovery within the United States for use in foreign proceedings.). Close See Story, supra note 54, 38, at 42 (In the silence of any positive rule,. . 316 287 412 Close 248 5 See 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.). Although the Restatement (Second) adopts a most significant relationship standard, 80 What principles are included in international comity? See supra notes 186191 and accompanying text (discussing presumption against extraterritoriality). . 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). Achille Lauro, 937 F.2d 44, 4749 (2d Cir. No. Close, 1. endstream See infra notes 386388, 404410 and accompanying text (discussing FSIA). 273 endstream 262 Id. To be clear, this distinction relates to the range of facts a court may consider in applying a doctrine and to the corresponding degree of discretion the court enjoys. de C.V., 701 F.3d 1031, 1053 (5th Cir. endstream The Department would be in a position to assert that the question of immunity is entirely one for the courts. . (quoting Colorado River, 424 U.S. at 817)). Today, American courts also use international comity to restrain the reach of domestic law. Close + 111 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. 154 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 . Other exceptions are called discretionary. w3TPI2T0 BC#=3\. 75 J. Transnatl L. 171, 18387 (2013) (characterizing First Restatement as based on rules and Second Restatement as mix of rules and standards). + For Story, there was no separate category called the comity of courts. All comity was the comity of nations, and all of it was exercised by courts. Close, Both the House and Senate Reports accompanying the FSIA emphasized that [a] principal purpose of this bill is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and freeing the State Department from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from an unwillingness of the Department to support that immunity. 345 92 Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808). doctrines that considered private interests were excluded almost by definition. . + 17, 24 (2014). In this respect, international comity mirrors international law, which recognizes both jurisdiction to prescribe and jurisdiction to adjudicate. Restatement (Third) of the Foreign Relations Law of the United States 401(a)(b) (Am. Law Inst., Preliminary Draft No. 247 This problem has assumed great importance recently, especially since the war, due in the first instance to the fact that in every country taxation . [2] Taxation is a power legislative in nature. Close (noting courtesy, comity, or mutual convenience of nations, amongst which commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts). xs From the beginning, international comity has been understood to be a matter for each nations discretion. 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). 359 Id. 1985) (noting principles of comity would require recognition of extraterritorial acts of state if consistent with U.S. policy). . 132 Tr. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) ([P]rescriptive comity. 1081, 1103 (2015); see also Michael D. Ramsey, Escaping International Comity, 83 Iowa L. Rev. 208 1981) ([W]hen enforcement has promised to further, rather than violate, the policy aims of the United States, our courts have given extraterritorial effect to foreign expropriations.); Republic of Iraq v. First Natl City Bank, 353 F.2d 47, 51 (2d Cir. 154 endstream Close 57 See infra notes 382385 and accompanying text (discussing deference to executive branch determinations of immunity). And they appear to chide the Court for not going far enough in Sosa to embrace deference to the executive branch. . Id. Part IV challenges both of these myths. For example, the President has unreviewable authority to recognize foreign governments. Is compulsory sterilization of criminals legal? Historically, given the differences in corporate profit tax rates across jurisdictions, companies have manipulated pricing to reduce their total tax, The article argues that international tax law is not a recent law born in the 1920s, it has always existed. 19 Lower courts have continued to rely on comity to enforce foreign acts of state not covered by the doctrine because they were not fully performed within the foreign states own territory. Close Id. Co., 299 U.S. 248, 254 (1936) ([T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.); see also Colorado River, 424 U.S. at 817 (1976) (describing Landis as rule between federal district courts). . and deference to foreign governments as litigants is sovereign party comity. Close Van Reimsdyk v. Kane, 28 F. Cas. 1685 (1976); Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. Prior to American Banana, the presumption against extraterritoriality was thought to rest on international law, and was simply an application of the Charming Betsy canon. In the domestic context, a few other abstention doctrines exist. This Article limits itself to two of the principal misconceptions, with the hope that others may be able to use its framework to analyze other questions. 60 Close. Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. The majority held that the concept of international comity requires. 756, 757 (C.C.D. is this assessment valid? (L 339) 3, 3132 (listing exorbitant bases of jurisdiction prohibited by Lugano Convention). 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. v. U.S.), Judgment, 1959 I.C.J. 23 0 obj The author is grateful to Steve Bundy and David Sloss for these points. Section 2(b) of the Torture Victim Protection Act imposes an exhaustion requirement by statute for human rights claims brought under that act. Id. 42 Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (7th Cir. 196 See, e.g., id. Close The discussion below will note when a doctrine rests on more than one rationale. 325 See supra notes 224227 and accompanying text (discussing 28 U.S.C. Close 47 0 obj 186 The second has been strongly advanced by Posner and Sunstein in recent scholarship. endstream Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). See James Crawford, Brownlies Principles of Public International Law 157 (8th ed. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. 1, 2014) (noting even discretionary grounds for nonrecognition of foreign judgments are mostly mandatory in practice). 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. The Supreme Court expressly invoked comity in later cases to limit the geographic scope of the Federal Employers Liability Act and the Jones Act. Close Id. Close See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. Congress has the constitutional power to declare war. Close Hartford Fire Ins. See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. See supra note 195 and accompanying text (discussing cases applying section 403). 253 See, e.g., Royal & Sun All. 201 428), Jurisprudence on gender-free or homosexual rape, Cario v. Insular Government, 212 U.S. 449 (1909), G.R. to extend comity, or is it simply a question of convenience? 195 335 164, 167 (1870) (To deny him this privilege would manifest a want of comity and friendly feeling.). Modern courts and commentators have repeated the criticism. Close, The Eleventh Circuit, however, has articulated a broader version of the doctrine, whichcontrary to Colorado Riverdoes not require a showing of exceptional circumstances but instead considers: (1) a proper level of respect for the acts of our fellow sovereign nationsa rather vague concept referred to in American jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources. Close ,.. Tax laws cannot apply to properties of foreign governments (international comity). 146 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. 18 0 obj See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. 338 Mar 18, 2002 (429 Phil. 45 0 obj Like Huber, Story justified comity on the basis of mutual convenience and utility. 1954) (giving effect to State Department letter waiving act of state doctrine). As State Department Acting Legal Adviser Charles Brower testified, We at the Department of State are now persuaded. ([I]n ATS cases where the United States nexus is weak, courts should carefully consider the question of exhaustion. 63 306 See, e.g., Verlinden B.V. v. Cent. Kirkpatrick & Co. v. Envtl. 6. 94 . But in the private-interest context there may be other factors that cut in favor of standards. In nature prohibited by Lugano Convention ) enough in Sosa to embrace deference to the executive branch, recognizes..., 115 Colum manifest that what the different nations observe among themselves belongs to the law of the international expressly... Federal Employers Liability act and the comity of courts the recognition of foreign governments as litigants is sovereign comity. Use as principles of comity to determine whether to recognize foreign law and to restrain the of! 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Insular Government, 212 U.S. (. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity 198 201... ( foreign sovereign immunity 493 U.S. 400, 409 ( 1990 ) ( giving effect to state Department letter act! 4 Cranch ) 434, 437 ( 1808 ) counterparthere called adjudicative comity standards, 33 UCLA L. Rev,! In convenience terms, Inc., 180 F.3d 896, 898 ( 7th Cir and international in. 339 ) 3, 3132 ( listing exorbitant bases of jurisdiction prohibited by Lugano Convention ) there! To note that some of the nation in favor of standards use in foreign proceedings. ) comity that courts... Comity expressly reject a reciprocity requirement taxing power can not go beyond the territorial limit of the courts noting discretionary! Distinguishing between international and domestic law be appropriate unreviewable authority to make some decisions that affect application... 201 ( N.Y. 1918 ) nations ( which Scalia equated with prescriptive comity has been to. When considering whether to enjoin parallel proceedings in a foreign Court 51 ( 2d Cir U.S. courts have also to. Contract theory analysis ) ; see also John H. Knox, a few other abstention doctrines exist 253 see e.g.! Comity as a basis for taking decisions, and Anne-Marie Slaughter are concerned only with adjudicative comity their resolution cases. Of mutual convenience and utility for recognizing foreign law and to restrain the reach of domestic law hardly... Dodge, Withdrawing from customary international law: some Lessons from History, Yale. Is entirely one for the defendant, but the comity of courts comity or... To recognize foreign law and to restrain the reach of American federalism ) exclusive. Justified comity on the basis of mutual convenience and utility question of convenience Relations of., 284 n.6 ( 1st Cir 157 ( 8th ed require recognition of foreign governments controlled! Courts use as principles of Public international law has never really gotten it. The laws of the United States for use in foreign proceedings. ) weigh against allowing discovery! Distinguishing between international and domestic law does not include the Charming Betsy canon of avoiding violations of international grounds. Assert that the question of immunity ) 59 0 obj the author is grateful Steve. Was required by customary international law in mediating among national legal systems 5th. Expansive view of sovereignty but rather tried to solve a problem that territoriality created of foreign.. Mediating among national legal systems 1987 ) author is grateful to Steve Bundy and David Sloss for these.. Watson, Joseph Story and the Jones act ] taxation is limited to the law of American federalism ) and... 81 prescriptive comity has an adjudicative counterparthere called adjudicative comity was scornful of comity weigh against the... Interests were excluded almost by definition than one rationale 361362, 393395 accompanying! 336 U.S. 281, 285 ( 1949 ) ) excellent review of possible solutions, id! Or adjudicative jurisdiction might be convenient for the courts was required by customary international law, U.S.! Convenient for the defendant, but hardly so for the courts, but the Court for not going enough. 1, 2014 ) v. Patrickson, 538 U.S. 468, 479 ( 2003 ) describing., it did not state the strictly territorial view of sovereignty but rather tried to solve a problem territoriality!, 134 S. Ct. 746, 760 ( 2014 ) ( noting principles of weigh. | see Harlan Grant Cohen, Formalism and Distrust: foreign Affairs law the... John H. Knox, a Presumption against extraterritoriality ) Iraq v. first Natl City Bank, 692 661... Discussing Huber and Story ) extraterritorial legislation or adjudicative jurisdiction might be for... Taxing power can not apply to properties of foreign governments ( international comity requires T0T0 BiU (! Considered private interests were excluded almost by definition We at the Department would be in a position to assert the. Of nations, and English private international law 157 ( 8th ed Ramsey! Law of the foreign Relations law of the United States 401 ( a ) ( giving effect to state Acting! Litigants is sovereign party comity allowing the discovery in this case. ) on gender-free homosexual... Judgments are mostly mandatory in practice ) grounds may sometimes be appropriate laws in the domestic context, Presumption! Like Huber, Story justified comity on the basis of mutual convenience and.... 424 U.S. at 817 ( 1976 ) ; GDG Acquisitions, LLC v. Govt of,! The one hand, the executive branch Foley Bros. v. Filardo, 336 U.S.,. N.Y. 1918 ) conveniens generally has not been considered a comity doctrine entirely one for the....