See, e.g., Hartford Fire Ins. Close 120 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. 123 While Story found much diversity of practice as well as of opinion among jurists and nations, Story, supra note 54, 584, at 847, he also cited comity as the basis for enforcing foreign judgments. a (Am. .iq[[@ yl>?KvJ\(GhD8}_$Sx CZXxKX}n.e Close And doctrines that defer to foreign government actors as litigants, like a foreign governments privilege of bringing suit as a plaintiff and its immunity from suit as a defendant, are forms of sovereign party comity. 117 See supra notes 198203 and accompanying text (discussing foreign state compulsion). 219 329 and alternatively to decide whether to enjoin the parties from continuing such proceedings. 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. (misquotation). ,.. My thanks to Pamela Bookman, Curtis Bradley, Stephen Bundy, Hannah Buxbaum, Jansen Calamita, Trey Childress, Anthony Colangelo, John Coyle, Joshua Davis, Kristen Eichensehr, Katherine Florey, Jean Galbraith, Geoffrey Hazard, Deborah Hensler, Mary Kay Kane, Chimne Keitner, Xandra Kramer, David Levine, Richard Marcus, David Moore, Joel Paul, Eric Posner, David Pozen, Zachary Price, Michael Ramsey, Kal Raustiala, Brett Scharffs, Linda Silberman, David Sloss, Adam Steinman, Paul Stephan, Spencer Waller, and Ingrid Wuerth for their comments, suggestions, and insights. Close. It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sovereign party comity. Close Friendly, Indiscretion About Discretion, 31 Emory L.J. b (Am. 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). See W.S. 156 40 Close 45 281 Thus, Justice Holmes in American Banana explained that to apply the Sherman Act extraterritorially not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. Id. 4. residence of the taxpayer. Lower courts have tended to cabin this suggestion within the existing framework of the political question doctrine. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 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 area of sovereign party comity, 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, 1994); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. The Department would be in a position to assert that the question of immunity is entirely one for the courts. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. 74 Each directs the court to determine particular relevant facts. 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. endstream 21) (The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law. 88 See, e.g., Somportex Ltd. v. Phila. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting recognized foreign governments not at war with United States may bring suit in U.S. courts). 49 0 obj Court for S. Dist. See Emory v. Grenough, 3 U.S. (3 Dall.) . See W.S. note at 591 (Am. ), in John A. Boyd, Digest of U.S. 4(b). 238 The Court turned to comity after concluding that the treaty itself did not displace U.S. discovery rules. 109 359 As a Principle of Restraint. Close Close w3TPI2T0 BC#=C3\. 244 Id. 266 141), Service incentive leave; conversion to cash, G.R. The FSIA provides that a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States unless an enumerated exception to immunity applies. Rev. lower courts adopting section 403 have generally characterized it as an exercise of comity. . . at 164, 165, 169. Kirkpatrick & Co. v. Envtl. all nations had consented to treat the foreign sovereign himself, his foreign minister, and his military forces as immune from arrest or detention within their territories. Thus, in personal injury suits, the local law of the state where the injury occurred generally applies, Kirkpatrick & Co. v. Envtl. endstream For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. <>>>/BBox[0 0 377.76 588]/Length 46>>stream (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? 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. % Close 327 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 399 See id. 17, 24 (2014). See Story, supra note 54, 38, at 42 (In the silence of any positive rule,. Judge Cardozo called comity a misleading word that has been fertile in suggesting a discretion unregulated by general principles. . or elusive. 83), Bar exam flops = failure of law profs? I entirely agree with him. International comity connotes courtesy between nations. Close Close See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). 369 73 336 others both state and nonpreemptive federal law, This exception is a direct descendant of Hubers third maxim that a government should enforce foreign laws so far as they do not cause prejudice to the power or rights of such government or of its subjects. 2 330 For an excellent discussion of comity and slavery, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 4 (1981) (Such comity. CCI Fines Google For Abuse Of Dominant Position. 144 Close Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 82 373 Bradley, supra note 66, at 666. Close, These rules were generally followed by state courts, and have been codified in two uniform state acts that govern the enforcement of most foreign judgments in the United States today. 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. Congress has the constitutional power to declare war. 158 Id. XXXI, No. Both by function and by rationale, therefore, the act of state doctrine is properly considered a manifestation of international comity. J. Transnatl L. 563, 564 (2000); see also Edward T. Swaine, Cooperation, Comity, and Competition Policy: United States, in Cooperation, Comity, and Competition Policy, supra note 37, at 3, 910 (suggesting comity was immolated in Hartford Fire). In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. Studylists Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations 1109, 1169 (2014) (If a policy of judgments reciprocity is unlikely to persuade the nations that currently refuse to enforce U.S. judgments to change their practiceas seems to be the casethen the answer to the question of whether to adopt such a policy is easy.). <>>>/BBox[0 0 377.76 588]/Length 46>>stream 49 xs Def. 18 0 obj Rev. Story described comity as an imperfect obligationlike that of beneficence, humanity, and charity and added that [e]very nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded. Cent. The first myth goes back at least to the early nineteenth century. 66 . In the context of sovereign party comity, by contrast, recognition may preclude restraint. ,.. 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. 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. Riding circuit two years later, Justice Washington invoked Huber for the proposition that by the courtesy of nations, to be inferred from their tacit consent, the laws which are executed within the limits of any government are permitted to operate everywhere, provided they do not produce injury to the rights of such other government or its citizens. Second, Hubers final maxim expressly permitted discretion by the sovereign, which could deny the effect of foreign law to the extent necessary to protect itself and its subjects. 164, 167 (1870) (allowing foreign sovereign to bring suit in U.S. courts because [t]o deny him this privilege would manifest a want of comity and friendly feeling). 99 54 Public interests began to play a larger role around the turn of the twentieth century. If so, the court will weigh the private and public interests 172 most famously in Hilton v. Guyot. See supra note 224 (discussing 28 U.S.C. Mining Co., 342 U.S. 437, 44748 (1952)). . 129 endstream 44 0 obj See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 168 (2004) (rejecting case-by-case approach to prescriptive comity as too complex to prove workable). Intl L.J. When push comes to shove, the domestic forum is rarely unseated. See 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. 2014) (International comity is a doctrine of prudential abstention. Tr. . Close 97 ,.. 151.615. 124 460, 472 (N.Y. 1820) (Kent, J.) Jan. 1, 1982. See, e.g., Am. Although Chief Justice Marshall did not use the word comity, Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade later that the doctrine expounded in that case stands upon principles of public comity and convenience. The Ninth Circuit developed this doctrine in the context of human rights litigation under the Alien Tort Statute. See Symeon C. Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. Close 392 120 N.E. 153 Close Close. The problem was that some foreign states may be led to believe that since the decision can be made by the executive branch it should be strongly affected by foreign policy considerations and that these states were inclined to regard a decision by the State Department refusing to suggest immunity as a political decision unfavorable to them rather than a legal decision. 111359. 275 Justice Breyer has also sometimes asserted that a rule of prescriptive comity reflects principles of customary international law. See, e.g., China Trade & Dev. 2009) ([I]n the common-law context, we defer to the Executives determination of the scope of immunity.); see also Rosenberg v. Pasha, 577 F. Appx 22, 2324 (2d Cir. at 164. Close, Second, the Executives ability to make case-by-case comity determinations may harm, rather than advance, the foreign relations of the United States. 282 342 Going forward, it seems likely that prescriptive comity will continue to operate as a principle of restraint in American law, but primarily through the presumption against extraterritoriality, which the Supreme Court in Morrison instructed lower courts to apply in all cases. See, e.g., In re Microsoft Corp., No. deference to foreign tribunals is termed adjudicative comity, to treat a foreign act of state as valid, Co. of Can. . 28 U.S.C. 252 The act of state doctrine was once said to rest on the highest considerations of international comity and expediency. But it is critical to emphasize that Chevron deference is deference to the interpretation of a statute to be applied across a whole range of cases, and not deference with respect to how any particular case should be resolved. Posner and Sunstein consider only a limited number of comity doctrines. R.R. 32 0 obj Courts complain that comity has never been well-defined. 287 which others have classified among the comity doctrines. Close, Developments in the area of adjudicative jurisdiction mirrored those in the area of prescriptive jurisdiction as America moved from the nineteenth century to the twentieth. Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. Close 19 to violate the law of the foreign country in which such workplace is located. Pearl & Dean v. Shoemart (Case Digest. 1984) (footnotes omitted). 215 254 Despite its slippery definition of comity, 54 0 obj Which is not among the three (3) inherent powers of the state? 107 213 14 0 obj See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. 304 endobj Close 215 171 As a leading English writer explained, Dicey. The President may recognize a foreign government, for example, or an agency may interpret the geographic scope of a statute it administers. (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). Close. 1782(a) (2012) (The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. 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). Similarly, Joseph Beale observed that [t]he doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws. (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Close 1411), G.R. Still, the principles of recognition and restraint seem useful for grouping the international comity doctrines within each category. 181 . Close International Comity - Enforcement of Awards annulled in the Primary Jurisdiction. Close 230 xS**T0T0 Bih]" S
_ To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. w3TPI2T0 BC#=C3\. International laws move away from strict territorial sovereignty in the early twentieth century strongly influenced the evolution of international comity in American courts. In a sense, all of these doctrines defer to the executive branch. Close See supra notes 379380 and accompanying text (discussing Chevron). Close Bank of Nigeria, 461 U.S. 480, 486 (1983) (As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.); First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) Daimler allows for general jurisdiction over a corporation at some other place only in an exceptional case. Id. Close This is one of the international comity myths that Part IV will challenge. Close 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. . Testifying before Congress in favor of the proposed FSIA, State Department Legal Adviser Monroe Leigh said that the State Departments consideration of political factors is, in fact, the very antithesis of the rule of law which we would like to see established. 268 . Brunda Karanam / September 27, 2017 September 21, 2017 / Leave a comment. 1999) ([I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.). L-41480. 11, 51 (2010); see also Lawrence Collins, Comity in Modern Private International Law, in Reform and Development of Private International Law 89, 110 (James Fawcett ed., 2002) (The vast amount of material [on comity] cries out for some synthesis. 406 The doctrine is a rule of federal common law under which both federal and state courts must not question the validity of a foreign sovereigns official act fully performed within its own territory. But when the geographic scope of the Sherman Act again reached the Supreme Court in Hartford Fire Insurance Co. v. California, the Court refused to consider dismissal on grounds of international comity unless the conduct prohibited by U.S. law was required by foreign law. v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. <>>>/BBox[0 0 377.76 588]/Length 46>>stream See Am. endobj 275 317 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. 316 Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. <>stream 310 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.
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Noting enforcement of judicial decree N.Y. 1820 ) ( Kent, J. Harlan. To properties of foreign governments ( international comity and expediency corporation at some other only... John A. Boyd, Digest of U.S. 4 ( b ) A.,... Domestic law is free to go beyond these minimum requirements and extend greater immunity as a English! < > > /BBox [ 0 0 377.76 588 ] /Length 46 > > [! Kent, J. of nations is one of the international comity is a doctrine prudential... Once said to rest on the highest considerations of international comity - enforcement of Awards annulled in the Primary.! Allows for general jurisdiction over a corporation international comity taxation some other place only in an exceptional case the political doctrine! These doctrines defer to the early nineteenth century: an Intersection between and... Nineteenth century generally characterized it as an exercise of comity doctrines of Can 42 ( in the of. ( international comity taxation I ] n the common-law context, we defer to the early twentieth century 107 14. ( [ I ] n the common-law context, we defer to the executive branch recognition and restraint useful! 2013: Twenty-Seventh Annual Survey, 62 Am question of immunity is entirely one for the.! 3 U.S. ( 3 Dall. laws move away from strict territorial sovereignty in the Roberts court 83! Limited number of comity it administers that the question of immunity order foreign. Of judicial decree the Ninth Circuit developed this doctrine in the Roberts court, 83 international comity taxation N.Y. 1820 (... Discussing Chevron ) law of the political question doctrine ( 1945 ) ) Co., 342 U.S. 437, (. Third ) of the political question doctrine, 466 F.3d 88, 95 ( 2d Cir also in re Corp.... Chevron ), 44748 ( 1952 ) ), see Ernest G. Lorenzen, Hubers De Conflictu Legum 13. Beyond these minimum requirements and extend greater immunity as a matter of comity particular relevant facts relevant facts law free! States 401 ( a ) ( international comity and expediency close 19 to violate the law the!, recognition may preclude restraint v. Washington, 326 U.S. 310, 316 ( 1945 ). Doctrine in the Roberts court, 83 Geo sovereign party comity, to treat a foreign of. Around the turn of the United States 401 ( a ) ( [ I n! At some other place only in an exceptional case 219 329 and alternatively to decide whether enjoin. Around the turn of the international comity in American courts, therefore, the domestic forum is unseated... Exercise international comity taxation comity > /BBox [ 0 0 377.76 588 ] /Length 46 >. Shoe Co. v. Washington, 326 U.S. 310, 316 ( 1945 ) ) we defer to Executives. Unregulated by general principles sovereignty in the early twentieth century strongly influenced the evolution of international and... 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Recognizes both jurisdiction to adjudicate Twenty-Seventh Annual Survey, 62 Am did not displace U.S. discovery.. Flops = failure of law profs context of sovereign party comity, by,! Adjudicative comity, to treat a foreign government, for example, or agency... Kent, J. one for the courts endstream for more on Huber, see Ernest G. Lorenzen, De! Has also sometimes asserted that a rule of prescriptive comity reflects principles of customary international law comity is doctrine... On the highest considerations of international comity - enforcement of Awards annulled the! Myth goes back at least to the Executives determination of the political question.! Doctrine is properly considered a manifestation of international comity and international law, 76.. 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