195 164, 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). In a few states, conflicts rules are codified by statute, 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2015 O.J. See, e.g., Morrison v. Natl Austl. 542 U.S. 155, 165, 169 (2004). 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. & Constr.
the laws of one State have no operation outside of its territory, except so far as is allowed by comity). .); 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.). .). 264 263 A court need not recognize a foreign judgment if, for example, the defendant did not receive notice of the proceeding. 140 145 362
. But courts often restrain the geographic scope of U.S. law beyond what international law requires by applying a presumption against extraterritorialitya canon of interpretation based in part on international comity and not required by international law. Close
The courts and Congress are free to fashion rules of international comity as they wish, andassuming those rules give the executive branch discretionthe President is free to deny international comity in a particular case.
Kirkpatrick & Co. v. Envtl. Close
Close 541 U.S. 677, 70102 (2004). 293
A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide. Over the past four decades, the FSIA (with little or no deference to the executive branch) has not generated major foreign policy problems. 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. Intl L.J. But international laws strictly territorial view of jurisdiction had faded by 1909, . In particular, the Court has made clear that the presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law. Morrison v. Natl Austl. Palmer, Exorbitant Jurisdiction, 58 Me. 169 330 1971) (applying Pennsylvania law to enforcement of foreign judgment); Restatement (Third) of the Foreign Relations Law of the United States 481 cmt. Whether a doctrine takes the form of a rule or a standard is a separate question from whether that doctrine binds the court as a rule of law. 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.); infra note 338 and accompanying text (discussing act of state doctrine). 173 381 C 06-80038 JF (PVT), 2006 WL 825250, at *3 (N.D. Cal. Only the first of these justifications reflects international comity. . 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. See Ungar v. Palestine Liberation Org., 402 F.3d 274, 284 n.6 (1st Cir. Close, U.S. courts have sometimes used other tools to restrain the reach of U.S. statutes. 369 938.) Close
and deference to foreign governments as litigants is sovereign party comity. 198 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.) Close 284 86 ), Judgment, 2002 I.C.J. at 256 (stating foreign plaintiffs choice deserves less deference). Close .
Close, The act of state doctrine provides another example of prescriptive comity operating as a principle of recognition. It therefore excludes international comity by the executive branch in the exercise of its own authority. Some of those exceptions are mandatory. See The Sapphire, 78 U.S. (11 Wall.) and, conversely, has used comity to explain why foreign governments should be allowed to bring suit as plaintiffs in American courts. Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. 8 See Parkcentral Glob.
Lower courts have sometimes engaged in a case-by-case balancing of interests under section 403 of the Restatement (Third) of Foreign Relations Law. J. Transnatl L. 171, 18387 (2013) (characterizing First Restatement as based on rules and Second Restatement as mix of rules and standards). See William S. Dodge, After Sosa: The Future of Customary International Law in the United States, 17 Willamette J. Intl L. & Disp. 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.
Parkcentrals holding may be limited to cases in which the defendants were not parties to the U.S. transactions. Posner and Sunstein characterize the public policy exception to the recognition of foreign laws and judgments as an anti-comity doctrine because it assert[s] American interests. A strong case can be made that the Presidents recognition should also control a foreign states entitlement to immunity under the FSIA.
1309, 131435 (2015) (surveying comity in law of American federalism). 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). Id. See 28 U.S.C. 283, 353 (1822) ([Schooner Exchange] stands upon principles of public comity and convenience.). 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. 198 Rep. 499; Lofft. 18 Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. .); Perforaciones Exploracin y Produccin v. Martimas Mexicanas, S.A. de C.V., 356 F. Appx 675, 681 (5th Cir. Comity avoided that inconvenience. See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. 49 Close 166 Although recognition of foreign law is a prerequisite for foreign state compulsion, the doctrine operates as a principle of restraint because its effect is to limit the application of U.S. law that would otherwise govern. a (Am. at 5464 (providing contract theory analysis); see also id. 260 Strikingly, the convenience rationale was adapted even to the seemly public doctrine of foreign sovereign immunity, which, the Court noted, stands upon principles of public comity and convenience. WebTAXATION IS A STATE POWER, LEGISLATIVE PROCESS AND A MODE OF GOVERNMENT COST DISTRIBUTION. 26 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004); see also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.) 152 Close Immunity of Foreign States: Hearing on H.R.
283, 353 (1822). But the appropriateness of having the President make the status determination on which the doctrines turn does not depend on whether the doctrines are ones of comity or of international law. Recognition automatically confers the privilege of bringing suit in U.S. courts as a matter of comity, at least in the absence of a state of war with the United States. 185 82 The Court has held that federal courts may stay their proceedings in deference to other federal courts. Close. Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. Co., 517 U.S. 706, 723 (1996). Close 2006) (A federal district court with jurisdiction over the parties has the power to enjoin them from proceeding with an action in the courts of a foreign country, although the power should be used sparingly. The Court turned to comity after concluding that the treaty itself did not displace U.S. discovery rules.
Close
372 83 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. Id. 7814) (Washington, J.) Close 355 290 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. 258 Id. See id. 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). See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. 298 215 116
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. at 412 (There are good reasons for declining to extend the principle [of reciprocity] to the question of standing of sovereign states to sue.). just a decade later the Court looked to principles of prescriptive comity to limit the extraterritorial reach of American antitrust law in F. Hoffmann-La Roche Ltd. v. Empagran S.A. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comityfrom the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign governments privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Close See Campbell McLachlan, Lis Pendens in International Litigation 36 (2009) (In fact, the term denotes only the notion of a dispute, a lis, already pending before another court or tribunal. Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. Justice Scalia has also retreated from the balancing approach he advocated in Hartford.
The President has unreviewable authority to recognize foreign governments, and recognition in turn entitles foreign governments to bring suit in U.S. courts. With a number of these international comity doctrines, the Supreme Court has emphasized that the determination is committed to the sound discretion of the trial court. 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. See id. Webtaxation by the source country, is one common example. Close, A larger number of circuits have recognized a doctrine of abstention based on international comity. WebA fundamental rule in taxation is that the property of one country may not be taxed by another country. This known as [RPCPA} a.
answer True alternatives T Question 14 20 seconds Q. Close 15.300.380 (2013) (codifying choice of law for contracts); id. v. Bezdikian, 195 P.3d 604, 608 (Cal. and instead articulated a number of factors to guide the district courts discretion. Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. See Samantar, 130 S. Ct. at 2292 (concluding FSIA does not govern petitioners claim of [foreign official] immunity). or claim that their compliance with the laws of both countries is otherwise impossible, we see no conflict with British law.). Close the Executive is in the best position to determine how they should apply. Second, the shift from private to public obscured the basis in comity of certain doctrines that protect private interests, like forum non conveniens. 88
But cf. Bradley, supra note 66, at 666. This provoked a strong dissent from Justice Scalia, who thought the case should have been dismissed on the basis of prescriptive comity: the respect sovereign nations afford each other by limiting the reach of their laws. See, e.g., Am. Some authors have used the phrase adjudicatory comity. See Calamita, supra note 37, at 615 (distinguishing adjudicatory comity from prescriptive comity); Childress, supra note 20, at 16 (stating adjudicatory comity is perhaps the most robust use of the comity doctrine in transnational litigation). 30 2004) (Although it may not be her forum of choice, the plaintiff should pursue her claim through the Foundation, which was established by the American and German governments to address exactly these types of claims from the Nazi era.). on Claims & Governmental Relations of the H. Comm. In his 1834 treatise on conflicts, Story endorsed the view that comity is, and ever must be uncertain and must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule. See supra note 196 and accompanying text (discussing Empagran). The execution of all judgments in all cases decided in its favor by the CTA and the ordinary courts. Justice Douglas once made the point more colorfully in an act-of-state case, writing that such discretion makes the court a mere errand boy for the Executive Branch which may choose to pick some peoples chestnuts from the fire, but not others. Close 90 (2) that no state or nation can, by its laws, directly affect or bind property out of its own territory, or bind persons not resident therein; Close Professor of Law, University of California, Davis, School of Law. 93 The same is largely true of foreign official immunity.
Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations, 295 International law requires some immunities,
WebThe doctrine of international comity has been described variously "as a choice-of-law principle, a synonym for private international law, a rule of public international law, a
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Have sometimes engaged in a case-by-case balancing of interests under section 403 of the United States: 404!
Hub Ltd. v. Porsche Auto. Id. Close The power of taxation generally refers to the combination of the following natural qualities. Id. A fundamental rule in taxation is 140 Close Although it is generally omitted from scholarly discussions of international comity, 124 In deciding conflicts cases today, U.S. courts rarely invoke comity directly. Banks v. Greenleaf, 2 F. Cas. Am. 9 See Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) (It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting privilege of bringing suit had been denied only to governments at war with the United States. 348 Sys. Close See, e.g., Klinghoffer v. S.N.C. a, at 132 (2006) (Declination of jurisdictionwhether via lis pendens or via forum non conveniensis closely related to recognition and enforcement of foreign judgments.); see also Calamita, supra note 37, at 650 (placing doctrines along continuum). Properly understood, the foreign state compulsion defense rests on the expressed or presumed intent of the legislature, and its availability depends on the interpretation of the particular statute or rule at issue. 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.
The Supreme Court has repeatedly emphasized the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. 262 Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. Socit Nationale Industrielle Arospatiale v. U.S. Dist. 1, 2014) (noting even discretionary grounds for nonrecognition of foreign judgments are mostly mandatory in practice). Inspired by a footnote in the Supreme Courts Sosa decision, Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, Only the first rationale reflects international comity. Close.
(equating international comity with customary international law); Hartford Fire Ins. 162 Bank Ltd., 130 S. Ct. 2869, 2887 (2010) (Scalia, J.) See Restatement (Third) of the Foreign Relations Law of the United States 403 cmt. 1991) (applying international law criteria to decide Palestine Liberation Organization was not foreign state). The circuits following Colorado River have held that international comity abstention is appropriate only where parallel foreign proceedings are pending, .). Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (defining prescriptive comity as respect sovereign nations afford each other by limiting the reach of their laws). 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. As State Department Acting Legal Adviser Charles Brower testified, We at the Department of State are now persuaded. 1782(a) (2012) (emphasis added). See infra notes 386388, 404410 and accompanying text (discussing FSIA). A rule that makes compliance discretionary cannot be followed from a sense of legal obligation. 1685 (1976); Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 180 This rule turns on two easily ascertainable facts.
Close 2012) (Like diplomatic immunity, head-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Rutledge, supra note 330, at 606). 64 319
WebTaxation is a mode of apportionment of government costs to the people. 188(3). On the other hand, the President clearly has constitutional authority to determine particular factslike recognition of a foreign governmenton which some comity doctrines turn. 390
1971) (noting contract issues are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties). 401 but as the First Circuit has pointed out, this may not be the best approach. 283 Close 85 Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States.
For a critique, see David B. Massey, Note, How the American Law Institute Influences Customary Law: The Reasonableness Requirement of the Restatement of Foreign Relations Law, 22 Yale J. Intl L. 419, 42834 (1997) (arguing section 403 does not reflect customary international law). 72
300
Close 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. No one would assert that the executive branch, rather than a court, should decide whether a foreign judgment should be recognized or whether a particular case should be dismissed on grounds of forum non conveniens. See id. See Cohen, supra note 34, at 436 (Special deference to the Executive on foreign affairs now seems ill-placed.). See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 129798 (3d Cir. 343 See id.
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. subject to a number of presumptive rules for recognizing foreign law. is a myth.
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.). 375 Close, In the area of adjudicative comity, the recognition of foreign judgments is governed in most states by two uniform acts that set forth relatively clear rules. See Bradley, supra note 66, at 69194 (arguing for deference to extraterritorial interpretations by executive branch); 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.). 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.
Id. And even the executive branch has concluded, in the context of foreign state immunity, that case-by-case discretion does not help U.S. foreign relations. 380 Taxation is inherent in sovereignty. 270 Id. 118 . 255 Stat. 569, 596 (La. 247 WebTRUE 6.International comity connotes courtesy between nations. 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. 162 Thus, the Supreme Court properly rejected the U.S. governments argument in Kirkpatrick that the act of state doctrine should bar adjudication whenever the Executive determined that a case would cause too much embarrassment to a foreign government. . When an American court recognizes a foreign judgment, it restrains the exercise of its own authority to decide the merits of that case. But whatever particular form a doctrine takes, it is a courts obligation to apply its requirements faithfully rather than treating international comity as a blank check for discretion, either by the court or by the executive branch. 
134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)).
Close 15
Posner and Sunstein favor such deference, while this Article argues that it not only compromises judicial independence but also harms U.S. foreign relations by putting the Executive in the uncomfortable position of having to make decisions that may displease foreign governments. 144 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.). Va. 1799) (No. State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. .).
San Luis High School Bell Schedule,
Articles I
