Guar. Court for S. Dist. In most of the preceding examples, American courts used comity to address problems created by a strictly territorial view of sovereigntyhow to explain the enforcement of a foreign law or judgment outside the foreign states territory, or the decision not to exercise jurisdiction over a foreign sovereign inside the United States territory. 88 See Johnston v. Compagnie Gnrale Transatlantique, 152 N.E. 169 The Article should not be understood to suggest that there is a single form of international comity appropriate to every situation. Close Justice Story wrote in his treatise that this comity of nations was founded upon the notion of mutual convenience and utility. The exercise of taxation power requires Constitutional grant. . WebComputation of controlled foreign company income. Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, ), a famous decision in which Lord Mansfield refused to recognize foreign laws making someone a slave. 100 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. 1971) (applying Pennsylvania law to enforcement of foreign judgment); Restatement (Third) of the Foreign Relations Law of the United States 481 cmt. See id. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964); see also Belgrade v. Sidex Intl Furniture Corp., 2 F. Supp. 11 388 13 64 First, it bolstered the use of comity as a principle of restraint. (rejecting Securities and Exchange Commissions (SEC) argument that district court misapplied doctrine). 95. 35 The rule is founded upon public convenience, and the comity of nations.). See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 50712 (1947) (recognizing authority of district court to dismiss on grounds of forum non conveniens). 217 See Socit Nationale Industrielle Arospatiale v. U.S. Dist. Ch. 188(3). Close Close See James Crawford, Brownlies Principles of Public International Law 157 (8th ed. But other references emphasize comity as the normative justification for sovereign immunity. while the Second Circuit considers them absolutely binding. 210 Each began with the assumption that sovereignty was strictly territorial, each made exceptions based on mutual benefit, and each maintained the discretion of the territorial sovereign to deny such exceptions if it so chose. 321 Police power is the most superior power of the government. See Socit Nationale Industrielle Arospatiale v. U.S. Dist. But the origin of these rules in comity is clearly seen in the widespread adoption of a public policy exception. (rejecting SECs argument that district court misapplied doctrine of forum non conveniens). See Restatement (Third) of the Foreign Relations Law of the United States, ch. at 423; 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). It is not the comity of the courts, but the comity of the nation. 87, 100 (2003) ([T]he Arospatiale decision improperly de-emphasized system values as compared to particular interests raised in individual cases, and. As Part III explains, international comity is not just distinct from international lawit is deference to foreign government actors that is not required by international law. Only the first of these justifications reflects international comity. of Iowa, 482 U.S. 522, 54344 (1987). . Close, The act of state doctrine provides another example of prescriptive comity operating as a principle of recognition. American law is full of international comity doctrines. See, e.g., Morrison v. Natl Austl. And yet the Supreme Court often seems to treat international comity and international law as interchangeable. 40 Sys. See, e.g., Klinghoffer v. S.N.C. 104 Close Whether or not rules of foreign sovereign immunity properly fell into the defeasible category, Marshalls opinion in The Schooner Exchange certainly treated them that way. Stat. 17 See W.S. 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. 416 Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. (L 339) 3. Zivotofsky, 135 S. Ct. at 2084 (Recognized sovereigns. 234 Close See id. Prescriptive comity operates as a principle of restraint in American law today mainly through the presumption against extraterritoriality. Ins. Close . at 6471 (discussing conduct-based immunity). a (Am. 301 Close . 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). Close 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. 159 Close 382 Id. 372 The Supreme Court has held that [u]nder principles of comity governing this countrys relations with other nations, sovereign states are allowed to sue in the courts of the United States. 72 Close See, e.g., China Trade & Dev. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ([A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. . 381 43 145 166 285 On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. 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. When a U.S. court is asked to decline jurisdiction in favor of a pending foreign proceeding (or alternatively to enjoin the parties from continuing such a proceeding), the foreign tribunal has taken jurisdiction but not yet issued a judgment. . 2007). See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Close Hartford Fire Ins. Close 1994). to treat a foreign act of state as valid, 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. 175 U.S. 677, 694 (1900); see also Crawford, supra note 24, at 24 ([P]articular rules of comity, maintained consistently without reservation, may develop into rules of customary law.). 164, 167 (1870) (recognizing privilege of bringing suit on basis of comity); The Santissima Trinidad, 20 U.S. (7 Wheat.) . Loucks v. Standard Oil Co. of N.Y., 120 N.E. Close Rules may also be more easily gamed, and courts may therefore prefer standards that allow them to police abusive litigation tactics. 202, 21523 (2010) (discussing distinction between voluntary and customary law of nations). 75 Mar. In The Schooner Exchange v. McFaddon, Chief Justice Marshall held that a French warship was immune from suit by its former owners to recover it. Much more problematic is judicial deference to the Executive with respect to the outcomes of particular cases. See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). 320 In fact, Justice Story meant nothing of the kind. Guar. . 105 . . 1987) (Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States.). 199 Part IV shows that international comity doctrines are frequently expressed as rules rather than standards, and that allowing courts to apply these doctrines without inference by the executive branch promotes not just the rule of law but also U.S. foreign relations. 189 (invoking unique genius of our Constitution in establishing two orders of government). . 20 Kirkpatrick & Co. v. Envtl. . In American Banana Co. v. United Fruit Co., the Supreme Court had to decide whether the Sherman Act reached anticompetitive conduct in another country. 395 1994); Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937 (D.C. Cir. Michael Ramsey expressly limits his consideration of comity to the recognition of foreign acts. 116 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. Agency interpretations of the geographic scope of statutes should also be entitled to Chevron deference. 45 1965) ([W]hen property confiscated is within the United States at the time of the attempted confiscation, our courts will give effect to acts of state only if they are consistent with the policy and law of the United States. (quoting Restatement of the Foreign Relations Law of the United States 46 (Am. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Close 362 333 191 American Banana, 213 U.S. at 356. and the Second Circuit holding that the only fact that matters is the State Departments determination of immunity. 183 Close Close Justice Scalia has also retreated from the balancing approach he advocated in Hartford. Comity was neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. 124 257 289 288 b (Am. .). See infra Part III (explaining differences between international comity and international law). See id. (C 4) 2, 23; see also Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, annex I, 2007 O.J. Close, Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. but that phrase could describe either comity to legislatures or comity by legislatures. Close 214 136 172 101 31 Finance Leaders Reach Global Tax Deal Aimed at Ending Profit Shifting. The author is grateful to Steve Bundy and David Sloss for these points. 1997) ([T]o the extent that comity is informed by general principles of reasonableness, see Restatement (Third) of the Foreign Relations Law of the United States 403, the indictment lodged against NPI is well within the pale.); In re Maxwell Commcn Corp., 93 F.3d 1036, 104653 (2d Cir. 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. First, it did not state the strictly territorial view of sovereignty but rather tried to solve a problem that territoriality created. 156 Donald Trump pleaded not guilty Tuesday to 34 felony counts of falsifying business records related to his alleged role in See Restatement (Second) of the Foreign Relations Law of the United States 9 (Am. Close For Public Purposes 4. . 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. 2. .); Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 (Haw. Ulrich Huber, De Conflictu Legum Diversarum in Diversis Imperiis (Ernest G. Lorenzen trans. Close Close 11 294 In fact, the discretion not to defer to foreign government actors has been an inherent part of comity itself since the very beginning. This categorization shows that courts have used international comity to defer to foreign lawmakers, to foreign courts, and to foreign governments as litigants, and that international comity has operated in each category both as a principle of recognition and as a principle of restraint. Other foreign officials, as well as former foreign officials, may be entitled to conduct-based immunity. 385 Close. Income of non-resident aliens earned within the country. See Restatement (Third) of the Foreign Relations Law of the United States ch. See id. 134 R.R. The author is grateful to Mary Kay Kane for this point. 1782). 39 Close, Second, the Executives ability to make case-by-case comity determinations may harm, rather than advance, the foreign relations of the United States. Inherent power of Sovereignty 2. For a discussion of the relationship between customary international law and comity with respect to immunity today, see infra notes 300301 and accompanying text. . Quackenbush, 517 U.S. at 721. As noted above, the Court first used international comity this way in American Banana Co. v. United Fruit Co. Friendly, Indiscretion About Discretion, 31 Emory L.J. 134 Each directs the court to determine particular relevant facts. 2004) (dismissing suit under doctrine of international comity); AAR Intl, Inc. v. Nimelias Enters. 176, 194 (Can.) to limit the federal-common-law cause of action for human rights violations under the Alien Tort Statute (ATS), emphasizing that the presumption serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.. Close, Sometimes, U.S. courts are asked to address the possibility of parallel foreign proceedings not by dismissing the U.S. suit but by enjoining the foreign proceeding. at 256 (stating foreign plaintiffs choice deserves less deference). See 1 L. Oppenheim, International Law: A Treatise 147, at 196 (1905) (Many States claim jurisdiction and threaten punishments for certain acts committed by a foreigner in foreign countries.); John B. Moore, Report on Extraterritorial Crime (1887), reprinted in 2 John Bassett Moore, A Digest of International Law 202, at 244 (1906) (The principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries.). Close Close 173 See supra notes 280281 and accompanying text (discussing diplomatic and head-of-state immunity). . 391 the Executive is in the best position to determine how they should apply. Law Inst. See id. 125 341 281 . Beyond offering a definition of international comity, this Article catalogues and categorizes the uses of international comity in American law along two dimensions. As State Department Acting Legal Adviser Charles Brower testified, We at the Department of State are now persuaded. 24 77 It is only when adjudicative comity operates as a principle of restraint through doctrines like forum non conveniens that international comity operates predominantly through standards rather than rules. 109 A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide. In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). and then only upon a showing of exceptional circumstances. The doctrine of forum non conveniens, for example, takes the form of a standard rather than a rule, but it is also binding on district courts. 38 U.S. (13 Pet.) 251 procedures compatible with. This Articles definition of international comity differs from Hiltons in several respects. The Second Circuit has held that the Executive may waive the act of state doctrine in a particular case under the so-called Bernstein exception. ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). . 282 Close the Supreme Court has articulated comity-based rules to determine when foreign governments may bring suit as plaintiffs in U.S. courts, and Congress has adopted comity-based rules to determine when sovereign immunity shields them from suit as defendants. 1062, 1063 (C.C.D.R.I. 80 1350 note (Torture Victim Protection) (A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.). (1939, c. 158, s. The Court has also developed specific doctrines for abstaining in favor of state courts and has permitted abstention in cases falling outside these doctrines in exceptional circumstances. This Article is limited to doctrines of international comity applied by U.S. courts. The question, the Ninth Circuit wrote in Timberlane, was whether American authority should be asserted in a given case as a matter of international comity and fairness. v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. In 28 U.S.C. . 131 Close 365 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 TermForeword: The Justices of Rules and Standards, 106 Harv. Close. 320 .). Close Close For discussion of the extent to which the executive branch may control the access of foreign governments to U.S. courts, see infra note 371 and accompanying text. the act of state doctrine, Intl L.J. v. Century Intl Arms, Inc., 466 F.3d 88, 92 (2d Cir. These different ways of exercising adjudicative comity can best be viewed as parts of a larger whole. 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.) . See supra notes 198203 and accompanying text (discussing foreign state compulsion). But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws. Id. 66 The distinction between rules and standards is a continuum, not a divide, and many doctrines combine aspects of rules and standards. For a list of exorbitant bases permitted under the laws of the E.U. Close Holdings SE, 763 F.3d 198, 216 (2d Cir. 274 (13 Tyng) 1, 4 (1816) (Parker, C.J.) 219 164, 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). 2005) ([T]he exhaustion requirement does not apply to the [ATS].); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 27 (D.C. Cir. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). J. Transnatl L. 911, 969 (2011) ([T]he Executive Branch engages in undelegated lawmaking when it makes head of state immunity determinations.). Hub Ltd. v. Porsche Auto. 1987) (This section states the principle of reasonableness as a rule of international law.). 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