See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting) (observing judicial independence. See id. Close
Posner and Sunstein consider only a limited number of comity doctrines. The Executive rarely intervenes in such comity cases, and even when it does so, its views appear to receive no deference. (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). 15.300.380 (codifying choice of law for contracts); id. Close, Judicial assistance to foreign tribunals under 1782, on the other hand, is clearly discretionary. American notions of comity find their origin in the writings of the seventeenth-century Dutch jurist Ulrich Huber, whose approach was adopted in turn by the influential English judge Lord Mansfield.
1782(a) (2012). For a list of exorbitant bases permitted under the laws of the E.U. L.J. In an early case, the Supreme Court characterized the doctrine as resting on the highest considerations of international comity and expediency. 215 .). 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. 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? a (Am. 119 43 Close See, e.g., Or. 328 Close See Hilton v. Guyot, 159 U.S. 113, 16364 (1895) (Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. Id. As a Principle of Recognition. . Close The presumption in favor of a foreign plaintiffs choice of a U.S. forum is less strong. 1, 2014) (noting only two grounds are treated as discretionary in practice). (L 351) 1 (governing lis pendens and related actions); see also George A. Bermann, Parallel Litigation: Is Convergence Possible?, 13 Y.B. Law Inst. 93 248 181 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). F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (Breyer, J.). 18 4 2012) ([H]ead-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Peter B. Rutledge, Samantar, Official Immunity and Federal Common Law, 15 Lewis & Clark L. Rev. See, e.g., supra note 37 (surveying international comity scholarship). 90. 297 117 See Daimler, 134 S. Ct. at 750 (considering personal jurisdiction over claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States); Goodyear, 131 S. Ct. at 2850 (considering personal jurisdiction in case involving bus accident outside Paris); J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2785 (2011) (plurality opinion) (Kennedy, J.) But see First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) 379 . See D.J. Co. of N.Y. v. United States, 304 U.S. 126 (1938). As a form of deference to a foreign tribunal, adjudicative comity under 1782 operates as a principle of recognition, although quashing discovery when it would interfere with foreign proceedings also combines an element of restraint. State Laws 1962) [hereinafter 1962 Uniform Act]. Id. See, e.g., Regulation No.
344 Close 138 See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. 34 but that phrase could describe either comity to legislatures or comity by legislatures. 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 32 The Charming Betsy canon is more akin to the constitutional avoidance canon, with which it is sometimes linked, than to doctrines of international comity. 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. Close The Article defines international comity in a way that is both clearer and more comprehensive than the Supreme Courts famously ambiguous statement in Hilton. 48 143 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. 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.) 36 69
181 Proposed Official Draft 1962))).
Close 213 Close Oetjen v. Cent.
When an American court enforces foreign law, it not only recognizes that a foreign state has jurisdiction to prescribe, but also restrains the prescriptive jurisdiction of the forum. 291 Close Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating international comity and international law interchangeably); W.S. See supra notes 257258 and accompanying text (discussing Ninth Circuits decision in Mujica). 311 1827) (Porter, J.)) 260 Equal protection of law 3. 195 See, e.g., China Trade & Dev. 1945) (Hand, J.) 23, at 30. Free. Law Inst. 38 234 347 Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. See Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. 265 Close 2009) (applying Colorado River abstention to foreign proceedings); Royal & Sun All. 384 355 11315 Before the Subcomm. 357 384 This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity 264, 404 (1821) (Marshall, C.J.) For status-based immunities, this authority derives from the Presidents recognition power and is uncontroversial, but there is no equivalent constitutional basis for determinations of status-based immunity. 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 . Nevertheless, lower courts have developed other comity doctrines to restrain adjudicative jurisdiction in international cases. a (Am. or foreign state compulsion. Based on this survey, this Article adopts a functional definition of international comity that captures its uses in American law today: International comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law.
. Wuerth, supra note 383, at 953. 1319, 1320 (C.C.D. Jurisdiction to prescribe is distinct from jurisdiction to adjudicate. is a concept with almost as many meanings as sovereignty.). and counterclaims. As a Principle of Restraint. See WestlawNext, http:// Colorado River, 424 U.S. at 818. Close 1954) (giving effect to State Department letter waiving act of state doctrine). Samuel Livermore, Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws of Different States and Nations 26 (1828). Aug. 4, 2014) (In the interests of international comity, 28 U.S.C. Second, the shift from private to public obscured the basis in comity of certain doctrines that protect private interests, like forum non conveniens. 396 542 U.S. 241, 25963 (2004) (rejecting foreign-discoverability rule). With respect to the second myth, it is important to recognize that the proper role of the Executive depends on the comity doctrine at issue. 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7 The Restatement (Second) of Conflict of Laws adopts a most significant relationship standard, 349 Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) ([G]overnments recognized by the United States and at peace with us are entitled to access to our courts. Close 82 335
Close 63 Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 82 The Supreme Court expressly invoked comity in later cases to limit the geographic scope of the Federal Employers Liability Act and the Jones Act. 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, The relationship between international comity and international law is often misunderstood. Id. .); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum.). Close State courts consider the uniform acts to be codifications of international comity, Although the chapter draws on the experience of industrial countries with international taxation, the special concerns of developing and transition countries are emphasized throughout. Close
230 352 The Restatement departed from Timberlane by conceptualizing this balancing of interests not as a requirement of comity but a rule of international law. Id. at 1207. 56 . 229 See infra notes 287288 and accompanying text (citing cases in which Court equates international comity with international law). Close 1, 2014) (noting even discretionary grounds for nonrecognition of foreign judgments are mostly mandatory in practice). Close Some of those exceptions are mandatory. 165 40 Because enforcement of arbitration clauses does not involve deference to foreign government actors, it is not a doctrine of international comity but rather reflects deference to private autonomy. . 374 269 Hilton, 159 U.S. at 20203. 361 393 See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). 331 Exemption of the government 5. Although Empagran adopted Justice Scalias notion of prescriptive comity, its approach was quite different from his Hartford dissent. 2006) (recognizing possibility of abstaining on international comity grounds); Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238 (11th Cir. 294 388 at the expense of the interests of other countries. Posner & Sunstein, supra note 33, at 1182. Id. Close 338 Congress has the constitutional power to declare war. Banks v. Greenleaf, 2 F. Cas. Close Close A strong case can be made that the Presidents recognition should also control a foreign states entitlement to immunity under the FSIA. 149 1998) (holding act of state doctrine did not apply to decree of unrecognized Federal Republic of Yugoslavia). See, e.g., Regulation No. 22 See Restatement (Third) of the Foreign Relations Law of the United States 115(1)(a) (noting act of Congress may supersede[] an earlier rule of international law or a provision of an international agreement as law of the United States). Rev. This suggestion drew a sharp dissent from Justice Kennedy, who noted that judicial independence. .); 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.). Changes in international law have sometimes created new roles for international comity, and rules of international comity have sometimes evolved into rules of international law. 172 224 Nevertheless, the Fourth Circuit gives State Department determinations of conduct-based immunity substantial weight, Law Inst., Preliminary Draft No. answer True alternatives T Question 14 20 seconds Q. Professor of Law, University of California, Davis, School of Law. 183 225 As noted above, in the late eighteenth and early nineteenth centuries, some rules of the law of nations were understood to be optional and thus more akin to comity. 246 U.S. 297, 30304 (1918). Close Corp. v. M.V. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). 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. The doctrine provides that American courts will not question the validity of a foreign act of state fully performed within the states own territory. First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring in the judgment). 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. . Part of the problem is the Supreme Courts 1895 definition of comity in Hilton v. Guyot, which courts often take as their point of departure: Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. 403 reporters note 2 (citing Timberlane). 368 to those respecting the ownership of personal property, 189 Def. The following Term, a plurality of the Court again invoked international comity as the basis for limiting application of the Americans with Disabilities Act to matters affecting the internal affairs of foreign-flag ships. Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, Third, international comity is not international law, though the uses of international comity have changed in relation to changes in international law. 2011) (noting deference suggested in Sosa could implicate a number of the factors identified in Baker v. Carr, a leading political question case), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. 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). 284 .); Perforaciones Exploracin y Produccin v. Martimas Mexicanas, S.A. de C.V., 356 F. Appx 675, 681 (5th Cir. 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. 434 U.S. 308, 320 (1978). Close The comity of courts, Scalia said, referred to doctrines whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere. First, it offers a clearer and more comprehensive definition of comity than Hilton v. Guyot, as well as a framework for analyzing international comity doctrines. Id. 59 Belg. See, e.g., Somportex Ltd. v. Phila. 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). Close 386 Close Close . Close 28 U.S.C. 1996) (observing doctrines of act of state, foreign sovereign compulsion, and international comity. Close, International comity has even influenced some of the Supreme Courts rulings on personal jurisdiction under the Due Process Clause. See Crawford, supra note 24, at 24 n.18 (giving example of diplomatic tax exemptions). 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. v. 324 Close . Close 115 416 38, at 42. Close, Marshalls treatment of foreign sovereign immunity bears a striking resemblance to Huber and Storys descriptions of comity. Close 326 52 at 735 (Kennedy, J., dissenting). 317 15.400.460 (codifying choice of law for torts and other noncontractual claims). 139 187 388 at 164. When one nation applies the laws of another in its courts, it recognizes that the other nation has jurisdiction to prescribe rules for the transaction or event. 367 See infra notes 361362, 393395 and accompanying text (discussing Posner and Sunsteins argument). 416 For a discussion of the Supreme Courts treatment of amicus briefs filed by foreign governments, see Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 60
1081, 1103 (2015); see also Michael D. Ramsey, Escaping International Comity, 83 Iowa L. Rev. Close 327 Law Inst., Tentative Draft No. This possibility of interference arises when an interested person, rather than the foreign court itself, seeks discovery. See Ritchie v. McMullen, 159 U.S. 235, 242 (1895) (By the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect.). Close 1782. Close 174 207 70 202, 21523 (2010) (discussing distinction between voluntary and customary law of nations). 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.). R.R. 320 1971) (rejecting reciprocity requirement for conflict of laws). 217 at 168. treat it as law, consider themselves bound by it, attend to it with a sense of legal obligation and with concern for the consequence of violation.). Close See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. Close Lower courts have sometimes engaged in a case-by-case balancing of interests under section 403 of the Restatement (Third) of Foreign Relations Law. See Guar. (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. WebInternational income tax compliance (Forms 5471, 8865, and 8858), quarterly and year-end financial reporting, and tax research for all MMC Operating Companies. 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). 339 It is not the comity of the courts, but the comity of the nation. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (7th Cir. . 1984) (footnotes omitted). Close 205
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.). 30 33 which may be defined as deference to foreign courts. Id. 320 State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. One might characterize the act of state doctrine as one that rests in part on a basis other than comity. See Posner & Sunstein, supra note 33, at 1179 (listing Charming Betsy canon as comity doctrine). 198, 20102 (N.Y. 1918) (Cardozo, J.) As a general matter, [d]ue process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant. Childress, supra note 20, at 51. Sarei v. Rio Tinto PLC, 550 F.3d 822, 831 (9th Cir. 299 Close Close, The supposedly indeterminate nature of comity has long made it an object of criticism. . 665, 678 (La. Close In any event, that is certainly how the doctrine of comity developed in England and the United States. others both state and nonpreemptive federal law, 312 See infra section II.C (describing sovereign parity comity).
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