262 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). uuid:5691859e-1dd2-11b2-0a00-00ceffffc0ce 66 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). No. id. 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. Before Erie, endobj 270 Close See 28 U.S.C. 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. Close endstream Rubber Co., 643 F.3d 1013, 1025 (7th Cir. 287 239 International law binds the United States and gives rise to international responsibility. 41 0 obj Deference to foreign lawmakers constitutes prescriptive comity, . 122 188(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. See, e.g., Sosa, 542 U.S. at 732 (limiting ATS cause of action to violations of international law norms that are generally accepted and specifically defined); id. More specifically, this Article makes three contributions to understanding international comity in American law. 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. But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. 23 limitations on taxation. Justice Breyer has also sometimes asserted that a rule of prescriptive comity reflects principles of customary international law. 107 Law Inst. arises out of the basic relationships between branches of government in a system of separation of powers.); see also Kirkpatrick, 493 U.S. at 404 (noting evolution in jurisprudential foundation for the act of state doctrine from comity to separation of powers). 756, 757 (C.C.D. 79 Neither myth withstands scrutiny. Since Intel, lower courts have recognized international comity as the underlying basis of 1782, But the Ninth Circuit in Mujica, applying its newly minted doctrine of international comity abstention, See infra notes 386388, 404410 and accompanying text (discussing FSIA). No. See supra notes 298302 and accompanying text (discussing foreign sovereign immunity and prescriptive jurisdiction). 48 Studylists The recognition of foreign governments is controlled by the executive branch. Unif. + 333 365 Close 11 Close There are three (3) kinds of limitations on taxation: inherent, direct constitutional and indirect constitutional. (The act of state doctrine, like the doctrine of immunity for foreign sovereigns, has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.). 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. 283 372 29 H. Comm. <>>>/BBox[0 0 377.76 588]/Length 47>>stream L. Rev. 577, 579 (C.C.D. Close Close, Yet courts and commentators repeatedly confess that they do not really understand what international comity means. 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. We did not hold that plaintiffs failed to allege violations of international law in the first instance.). Answers in Genesis, 556 F.3d at 467 (Abstention from the exercise of federal jurisdiction is the exception, not the rule. (quoting Colorado River, 424 U.S. at 813)); Royal & Sun All., 466 F.3d at 95 ([C]ircumstances that routinely exist in connection with parallel litigation cannot reasonably be considered exceptional circumstances, and therefore the mere existence of an adequate parallel action, by itself, does not justify the dismissal of a case on grounds of international comity abstention.); AAR Intl, 250 F.3d at 518 (stating district court must consider the factors listed in Colorado River and its progeny and determine whether in light of those factors exceptional circumstances exist warranting abstention). 373 343 American courts generally apply the same choice-of-law rules in interstate and international cases. 30 277 Close at 1207; see also id. Is the assessment valid? 83 endstream 291 Adjudicative comity also limits district courts in granting antisuit injunctions and ordering the discovery of information located abroad. Close 386 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. Co. v. Tompkins, 304 U.S. 64 (1938). Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as singular specimen of confusion of thought produced by laxity of language). See Gross, 456 F.3d at 394 (We remain skeptical of this broad application of the international comity doctrine, noting our virtually unflagging obligation to exercise the jurisdiction granted to us. Tr. 56 As former State Department Legal Adviser John Bellinger has noted, the same dynamic is likely to play itself out in the context of foreign official immunity, where the State Department currently claims unreviewable discretion to make case-by-case immunity determinations: I wonder whether, in a few years time, the Legal Advisers Office will be in that same situation again, seeking another kind of FOIAa Foreign Officials Immunities Actjust as 40 years ago it sought the FSIA to relieve the burden and political pressure of having to file statements of sovereign immunity in every case. Close 273 One post-Morrison decision has held that a transaction in the United States is a necessary but not sufficient condition for the application of section 10(b). Taxation of the real estate in Dubai. 229 280 Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808). d. Exemption of government entities recognized. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (That international law does not require application of the [act of state] doctrine is evidenced by the practice of nations.). Close See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (concluding principles of prescriptive comity limit U.S. antitrust law). See Socit Nationale Industrielle Arospatiale v. U.S. Dist. .). s~)4^ hu_ 15 endstream 346 36 0 obj See Cassirer v. Kingdom of Spain, 580 F.3d 1048, 1062 (9th Cir. 54 0 obj Choong Yong, 837 F.2d 33, 37 (2d Cir. 310 44 331 Close 289 See infra notes 372374 and accompanying text (discussing executive recognition and immunity under FSIA). 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. But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. 390 xs Close . Echoing Huber, Story began with three maxims: (1) that every nation possesses an exclusive sovereignty and jurisdiction within its own territory; 14 Yet Story also thought that the territorial sovereign could trump other considerations and refuse to enforce foreign law: No nation can. <>>>/BBox[0 0 377.76 588]/Length 47>>stream Close (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 Close 358 Foreign Money-Judgments Recognition Act (Natl Conference of Commrs on Unif. 88 [4] Taxation respects international comity. 3 Joseph H. Beale, A Treatise on the Conflict of Laws 71, at 1965 (1935); see also A.V. Close Id. Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. 155 Id. Close See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (The forum non conveniens determination is committed to the sound discretion of the trial court. Lower courts have generally applied international law to decide if a defendant is a foreign state under the Act, endstream Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 2022 (1963)). Law Inst. 2005) (The doctrine has never been well-defined, leading one scholar to pronounce it an amorphous never-never land whose borders are marked by fuzzy lines of politics, courtesy, and good faith. (quoting Harold G. Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 Am. k (Am. 80 49 157 Belg. For example, the President has unreviewable authority to recognize foreign governments. Project-based employee v. Regular employee. 210 For example, no rule of customary international law requires the United States to recognize the judgment of a foreign court, 279 Close 64 This Article takes a different approach. Close Van Reimsdyk v. Kane, 28 F. Cas. This timely book explores a critical new juncture where globalisation is in retreat and global norms of behaviour are not converging. 371 61 Although it is generally omitted from scholarly discussions of international comity, 232 on the Judiciary, 93d Cong. Law Inst. 364 Id. endobj To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations. 213, 254 (acknowledging Courts holding in Samantar that federal common law now controls these issues). . xs endobj As this territorial view of sovereignty weakened, however, comity came to play new roles in American law. International law and international comity both mediate the relationship between the U.S. legal system and other nations, but they are fundamentally different. 94 See 2005 Uniform Act, supra note 106, 11 (This [act] does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].); see also Manco Contracting Co. 300 3. 8 endobj 187 Close Thisprinciple is based on the sovereign equality among states under international law, by virtue of which one state cannot exercise itssovereign power over another. . 315 Other doctrines of international comity expressly reject a reciprocity requirement. 327 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. 93 391 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. 354 ([I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties. In Empagran, the Supreme Court invoked not the presumption against extraterritoriality but a principle of constru[ing] ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations, 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. and the United States is responsible to other states for violating it. It may be reversed only when there has been a clear abuse of discretion. As a general matter, predictable rules better enable commercial parties to plan their affairs. 149 at 857 ([C]ustomary international law may impose an exhaustion requirement that limits plaintiffs ability to bring [expropriation] claim outside the country against which they bring suit.); Sarei, 550 F.3d at 82930 (en banc) (plurality opinion) (McKeown, J.) Close at 733 n.21 (mentioning exhaustion as a further potential limitation). endobj . 416 747, 75154 (1982) (questioning Pipers holding that forum non conveniens determinations should be reviewed for abuse of discretion). 20 See Restatement (Third) of the Foreign Relations Law of the United States 403 cmt. The border between the two has shifted over time. 16,871) (Story, J.). Close 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. 254 383 15 Close 186 356 Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). 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. For discussions of international comity in English law, see generally Adrian Briggs, The Principle of Comity in Private International Law, 354 Recueil des Cours 65 (2011) (surveying international comitys application in English caselaw); Collins, supra note 20, at 95110 (discussing manifestations of international comity in English law). 148 endstream . Close 159 2. subject matter of the tax 6. place of exercise, business or occupation being taxed. 272 But see Massey, supra note 130, at 42834 (arguing section 403 does not reflect customary international law). The Court has recognized exceptions for countries at war with the United States or not recognized by the United States. It also underlines the point that courts and legislatures may shape the international comity doctrines, as rules of domestic law, to achieve an appropriate level of deference to foreign lawmakers, foreign courts, and foreign governments as litigants. See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (holding forum non conveniens requires consideration of private interest of the litigant as well as [f]actors of public interest); Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (adopting due process standard of fair play and substantial justice). 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. See Story, supra note 54, 38, at 42 (In the silence of any positive rule,. See Ramsey, supra note 19, at 90637 (referring to legislative comity). but they come down firmly on the side of case-specific deference to the executive branch. 8 at 23 (Vague terms, such as comity, promise much and deliver little in terms of usable instructions for judges facing a potential encounter with foreign courts.). & Constr. . . at 138. Other international comity doctrines that allow the Executive to dictate the outcome in specific casesthe Bernstein exception to the act of state doctrine, Altmanns possibility of deference to statements of interest under the FSIA, and Sosas suggestion of case-specific deference in ATS casespresent the same dangers. Kirkpatrick & Co. v. Envtl. endobj See Socit Nationale Industrielle Arospatiale v. U.S. Dist. Close Close ,.. Close 123 Jurisdiction to prescribe is also distinct from jurisdiction to enforce. Forum non conveniens is an exception that applies in certain narrow circumstances. Continue reading 60 0 obj .). Close Close Posner and Sunstein have argued that there are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity. .); 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.). that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. . Close Ins. 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. 56 0 obj overlap to a large degree). Part I concludes by observing that autonomy and solidarity together generate the traditional "values" of federalismincluding accountability, accommodation of individual choice, efficiency, individual liberty, and voter satisfaction. 47 (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. 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. 69 . 109 H Comity in international law, Paul, J. R. (1991). Goss Intl Corp. v. Man Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 360 (8th Cir. For a more detailed discussion of the relationship between international comity and international law, see infra Part III. See supra note 224 (discussing 28 U.S.C. The Supreme Court has left open the question of whether the executive branch is entitled to deference in affording immunity to particular defendants in cases governed by the FSIA. at 54344. 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. An educational institution operated by a religious organization was being required by a local government to pay real property tax. xs Close 21 176, 194 (Can.) 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. 240 But in the private-interest context there may be other factors that cut in favor of standards. Rev. xS**T0T0 BiU" 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). Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004). 57 0 obj 28 0 obj 14 Asia Brewery v. CA (Case Digest. Close In Arospatiale, Justice Blackmun argued in favor of a rule requiring first resort to the procedures of the Hague Evidence Convention, noting that nothing inherent in the comity principle. But once comity came to be seen exclusively in terms of deference to the paramount interests of another sovereign, v. t. e. The Constitution of the United States is the supreme law of the United States of America. .). Bank of Nigeria, 461 U.S. 480, 486 (1983); see also infra note 275 (collecting cases treating sovereign immunity as comity). Kirkpatrick & Co. v. Envtl. . See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. 205 See, e.g., Van Reimsdyk v. Kane, 28 F. Cas. Hilton, 159 U.S. at 16364. THE PROCESS BY WHICH THE SOVEREIGN RAISES INCOME TO DEFRAY THE EXPENSES OF THE GOVERNMENT IS CALLED- (RPCPA) A. Hilton imposed a reciprocity requirement for the enforcement of foreign judgments under general common law. <>>>/BBox[0 0 377.76 588]/Length 47>>stream 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. . 21, 3438 (2009) (arguing President is constitutionally bound to obey international law under Take Care Clause). . Sg'G!};n$sqvf3b#&K>n dO=XqfjgU&XMyzkM 6Bt2!t See, e.g., Jurisdictional Immunities of the State (Ger. One might think of the FSIA as an exercise of international comity by Congress, but it is meant to be applied by the courts. 337 Law Inst. Close + 120 N.E. Close 136 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). Close 182 Id. 93 . Many judges resist the notion that the Executive should be able to dictate results in particular cases. 399 16041607 (2012). Close Close. . Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, Close Oetjen v. Cent. See Lori Fisler Damrosch et al., International Law 816 (5th ed. w3TPI2T0 BC#=C3\. L. Rev. 1987) (concluding factors favoring antisuit injunction are not sufficient to overcome the restraint and caution required by international comity). See infra notes 322323 and accompanying text (explaining difference between rules and standards). 51 Close 2011) (rejecting argument that plaintiffs must exhaust their legal remedies in the nation in which the alleged violation of customary international law occurred); Jean v. Dorlien, 431 F.3d 776, 781 (11th Cir. See, e.g., Morrison v. Natl Austl. 76 308 Mining Co., 342 U.S. 437, 44748 (1952)). A review of the international comity doctrines in American law shows that many take the form of rules rather than standardsfrom foreign sovereign immunity, to the act of state doctrine, to the presumption against extraterritoriality. 368 Close 264, 404 (1821) (Marshall, C.J.) This problem has assumed great importance recently, especially since the war, due in the first instance to the fact that in every country taxation . 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