w3TPI2T0 BC#=C3\. endstream (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Sabbatino, 376 U.S. at 40809 (holding privilege of bringing suit extends to governments recognized by United States and not at war with it); see also Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (Recognized sovereigns may sue in United States courts. 227 Each opportunity for deference invites pressure from foreign governments and creates the possibility of diplomatic backlash if the Executive decides not to support their positions. 327 Close Close As previously noted, Justice Holmes turned to international comity to support the presumption against extraterritoriality in American Banana, reasoning that application of U.S. law to foreign conduct would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. at 1201. Thus, in personal injury suits, the local law of the state where the injury occurred generally applies, Close endstream 375 321), The aggravating circumstances of nighttime, G.R. Close, While comity was the basis for enforcing foreign laws and judgments in American courts during the nineteenth century, it also served to restrain the exercise of jurisdiction over foreign sovereigns. But international law may bind the courts Posner and Sunstein, however, discuss only a limited number of international comity doctrines. 113 Other doctrines of international comity expressly reject a reciprocity requirement. ,.. xS**T0T0 Bih]" W 361 xs 245 See Huber, supra note 74, at 168 (stating comity applies equally to the subject of res judicata); see also id. But in fact, the separation-of-powers rationale for the act of state doctrine has international comity at its heart, for it rests on the perceived need for respect to foreign governments. 283 See supra note 196 and accompanying text (discussing Empagran). and (more questionably) the doctrines of prudential exhaustion endstream 93 Close Shangri-La International v. CA (Case Digest. 1838) (No. xs Comity also gave the states of the Union some roomthough in the end not enoughto manage the issue of slavery. And yet the Supreme Court often seems to treat international comity and international law as interchangeable. 247 Tectonics Corp., Intl, 493 U.S. 400, 409 (1990) (The act of state doctrine. Ungaro-Benages also adapted the factors relevant to abstention. 1971) (rejecting reciprocity requirement for conflict of laws). Both doctrines defer to foreign lawmakers by recognizing their authority to prescribe rules to govern a case before a U.S. court. See 336 U.S. at 285 ([The presumption] is a valid approach whereby unexpressed congressional intent may be ascertained. 6 0 obj 192 226 See, e.g., China Trade & Dev. Tectonics Corp., Intl, 493 U.S. 400, 405 (1990) (noting act of state doctrine bars U.S. courts from declar[ing] invalid the official act of a foreign sovereign performed within its own territory). 144 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. Some international comity doctrines have been interpreted to permit case-by-case discretion by the executive branch. 272 288 Id. They allow foreign governments to bring suit as plaintiffs, while shielding those governments and their officials from responding as defendants in some circumstances. .). Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). Some foreign officials are immune from suit based on their status. As of September 25, 2015, there were 637 such cases. 219 2010) (en banc). . See Altmann, 541 U.S. at 702 ([S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.); infra notes 386388 and accompanying text (discussing Altmann). 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. . Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. Close d. Exemption of government entities recognized. Advocates. 128 542 U.S. 155, 165, 169 (2004). 120 2004); Republic of Philippines v. Westinghouse Elec. 349 Close 2d 451, 458 (S.D.N.Y. Close 167 Close. Mfg. Close 399 Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. 1979) (listing factors to determine extraterritorial jurisdiction); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 614 (9th Cir. On almost identical facts, however, the Third Circuit rejected abstention. See, e.g., id. Kirkpatrick & Co. v. Envtl. Close It also shows how the rationale for comity shifted from private interests in convenience to public interests in respecting the sovereignty of other nations, a shift that has obscured the comity basis of some doctrines. gave substantial weight to a U.S. statement of interest suggesting that the adjudication of this case will have an adverse impact on the foreign policy interests of the United States. 2012) (Chapter 15 provides courts with broad, flexible rules to fashion relief appropriate for effectuating its objectives in accordance with comity.); Cunard S.S. Co. v. Salen Reefer Servs. 406 280 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. at 599 (quoting In re Maxwell Commc'n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). endobj If you get 8/10, you're ready for law school. See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010) ([Schooner Exchange] was interpreted as extending virtually absolute immunity to foreign sovereigns as a matter of grace and comity. (quoting Verlinden, 461 U.S. at 486)); Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) ([Schooner Exchange explained] that as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign . 54 endobj xs and the enforcement of foreign judgments in the United States. 69 Co. of N.Y. v. United States, 304 U.S. 126 (1938). Whether CCI should abstain from exercising its jurisdiction to maintain comity between decisions of different authorities on the same issues? Close 213 U.S. 347, 35558 (1909). []D2*B0Z6j\vC!m . each of which allows a district court to stay or dismiss a case over which it has personal jurisdiction. probing study of the dynamic relationship between English royalty and American democracy. Part III considers the relationship between international comity and international law. Close. . Local Tax Code as of its amendment by PD 426. 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). Pearl & Dean v. Shoemart (Case Digest. Rules further these interests by binding courts to defer to foreign government actors even when they might prefer not to do so. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 222, cmt. All kinds of hybrid combinations are possible.). <>stream <>>>/BBox[0 0 377.76 588]/Length 47>>stream [4] Taxation respects international comity. R.R. .). 176 endstream Tax exemption is a grant of immunity to a particular taxpayer from tax where . 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. x+ | [3] It superseded the Articles of Confederation, the nation's first constitution, in 1789. . 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. endobj (International Comity. This comity, Story emphasized, was not the comity of the courts, but the comity of the nation. <>>>/BBox[0 0 377.76 588]/Length 46>>stream Yousuf, 699 F.3d at 773; see also Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Intl L. 915, 92954 (2011) (considering and rejecting bases for executive lawmaking with respect to immunity). 17 0 obj xS**T0T0 Bid]" e 393 381 164, 167 (1870) (To deny him this privilege would manifest a want of comity and friendly feeling.). Doctrines of adjudicative comity as principles of restraint are generally governed by federal law in federal court and state law in state court. Law Inst., Tentative Draft No. 959) (Washington, J. 214 Close. The other discretionary grounds for nonrecognition are: the judgment was obtained by fraud; the judgment is repugnant to public policy; the judgment conflicts with another final judgment; the judgment is contrary to a choice-of-court agreement; the foreign court was seriously inconvenient and jurisdiction rested only on service of process; there are substantial doubts about the integrity of the rendering court with respect to the particular judgment; or the defendant was not afforded due process. The Supreme Court has repeatedly emphasized the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them. 380, 437 (2015) (The Court is skeptical of the executive branchs claims that it knows better, that it should not be second-guessed, and that it needs room to maneuver in a dangerous world.); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. Close Id. See supra notes 145156 and accompanying text (discussing justifications for comity). 93 at 5464 (providing contract theory analysis); see also id. Such authority 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. 539, 611 (1842). 349 EEOC v. Arabian Am. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). Eric Posner and Cass Sunstein consider only the presumption against extraterritoriality, the act of state doctrine, foreign sovereign immunity, and the Charming Betsy canon (which is not really a comity doctrine, see infra notes 4648 and accompanying text), though they briefly allude to other doctrines without explaining them. 284 State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. Close 122 In the domestic context, a few other abstention doctrines exist. 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. Id. H Collection of taxes in the absence of a law is violative of the Constitutionalrequirement for due process.TRUE 6. 188(3). Close The Transformation of International Comity Enter the email address you signed up with and we'll email you a . 2012) (No. Close . 4. 129 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. Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. ,.. International Comity in Taxation Author & abstract Download Related works & more Corrections Author Listed: Clyde J. Crobaugh Registered: Abstract No abstract is available for this item. Close 389, Sec. Close, Second, the Executives ability to make case-by-case comity determinations may harm, rather than advance, the foreign relations of the United States. Close 385 Id. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. They also point out that courts appear to have little understanding of what exactly comity consists, 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. . Close <>stream In other areas, international comity does all of the work. 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). Commercial convenience could explain why a foreign contract or judgment should be enforced, but it did not explain why a nation should restrict its prescriptive or adjudicative jurisdiction. 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. 94 Close 166 Close F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. 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 The literature is voluminous. 220 205 FALSE 8. 63 endstream 388 Corp. v. M.V. See id. 222 (equating international comity with customary international law); Hartford Fire Ins. 2013). 195 . The presumption in favor of a foreign plaintiffs choice of a U.S. forum is less strong. 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). Since the Supreme Courts 2010 decision in Samantar, the executive branch has claimed authority to make determinations with respect to official immunity that are binding on the courts. Part IV challenges both of these myths. 366 For example, no rule of customary international law requires the United States to recognize the judgment of a foreign court, 160 See infra notes 372374 and accompanying text (discussing executive recognition and immunity under FSIA). The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to international comity. Id. 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. In Kirkpatrick, the Supreme Court expressly rejected a standard of embarrassment to foreign governments and instead adopted a rule requiring courts not to question the validity as a rule of decision of a foreign sovereigns official acts fully performed within its own territory. Both territorial sovereignty and respect for foreign rights were of particular concern in the Netherlands, which had recently won independence from Spain but whose status as a trading nation created a pressing need to treat foreigners fairly. . Close Sovereign party comity is deference to foreign government actors as litigants in U.S. courts. 164 28 0 obj Conflicts methodologies vary from state to state. at 138. 348 For a principle that plays such a central role in U.S. foreign relations law, international comity is surrounded by a surprising amount of confusion. 103 1987). 193 endstream H 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. Ch. 3 Joseph H. Beale, A Treatise on the Conflict of Laws 71, at 1965 (1935); see also A.V. 414 Conduct-based immunity is more complicated and still developing, but the courts of appeals have so far adopted rule-like approaches, with the Fourth Circuit holding that violations of jus cogens norms can never be official acts, International comity Rules Property of a foreign State of (a) When government is party to government may not be taxed by . on the Judiciary, 93d Cong. Lower courts have tended to cabin this suggestion within the existing framework of the political question doctrine. 178 They also refer to a strain of thinking about the act of state doctrine. . 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. See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir. See, e.g., Morrison v. Natl Austl. Although Empagran adopted Justice Scalias notion of prescriptive comity, its approach was quite different from his Hartford dissent. endstream . See, e.g., Regulation No. 10 0 obj 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. 53 0 obj 317 111 Aug 15, 1995 (317 Phil. 53 Close Agency interpretations of the geographic scope of statutes should also be entitled to Chevron deference. Close See supra note 37 (surveying international comity literature). endstream Deference to foreign lawmakers constitutes prescriptive comity, Close On the domestic plane, it is generally accepted today that Congress may pass statutes that violate customary international law or U.S. treaty obligations. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. 2011) (noting foreign state compulsion doctrine acknowledges comity principles by accommodating the interests of equal sovereigns and giving due deference to the official acts of foreign governments); Trugman-Nash, Inc. v. N.Z. B. I and II only. Leather Co., 246 U.S. 297, 30304 (1918))). Recognizing foreign law as applicable to a particular case, for example, often means restraining the application of domestic law to that case. 2001) ([1962 Uniform Act] is a codification of the common-law doctrine of comity applied to foreign nation money judgments.). Story, supra note 54, 18, at 25. . As noted above, the Court first used international comity this way in American Banana Co. v. United Fruit Co. Huber, supra note 74, at 164; see also Story, supra note 54, 25, at 31 (No nation can. 145 Close Close 28 U.S.C. 28 U.S.C. xS**T0T0 Bih]" [ 2. Some have asserted that this discretion must be exercised on a case-by-case basis and that the executive branch is more competent to apply the doctrines of international comity. Holdings SE, 763 F.3d 198, 216 (2d Cir. 9, 2432 (1966) (discussing Hubers conception of comity and comparing it to others). Close 398 It is something of an embarrassment for U.S. foreign relations law that so many of its doctrines depend on a principle that is poorly defined and arguably leads to unbounded discretion either by the courts or by the executive branch. Thus, the effect not just of an executive order or legislative act but also of a judicial decree depends upon what our greatest jurists have been content to call the comity of nations. 384 19 on Claims & Governmental Relations of the H. Comm. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909); see also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to avoid unreasonable interference with the sovereign authority of other nations); Hartford Fire Ins. The word prescriptive refers to jurisdiction to prescribethat is, to make [a states] law applicable to the activities, relations, or status of persons, or the interests of persons in things. 50 It is legislative in character. 119 331 32 The Article should not be understood to suggest that there is a single form of international comity appropriate to every situation. International Comity - Enforcement of Awards annulled in the Primary Jurisdiction. Close. See 28 U.S.C. 124 34 0 obj endstream 166 Jurisdiction to prescribe is distinct from jurisdiction to adjudicate. 236 398 Forum non conveniens, prudential exhaustion, international comity abstention, and the granting of antisuit injunctions all require a case-by-case weighing of factors and are reviewed on appeal for abuse of discretion. Close 66 As the Court restated the rule most recently, governments recognized by the United States and at peace with us are entitled to access to our courts. But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. 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. Close The United States has codified the rules governing foreign state immunity in the FSIA, which provides that foreign states, as well as their agencies and instrumentalities, are immune from suit in both federal and state courts unless an exception to that immunity applies. <>>>/BBox[0 0 377.76 588]/Length 46>>stream <>stream 108 125 1985) (Acts of foreign governments purporting to have extraterritorial effect. Close This Article uses adjudicative as counterpart to prescriptive, but no difference in meaning is intended. Customary international law does not require the recognition and enforcement of foreign judgments. Courts may be more concerned with achieving fairness in cases that involve private parties. This Article is limited to doctrines of international comity applied by U.S. courts. Close 193 Close First, international comity is not just recognition but deferencea word that captures comitys use both as a principle of recognition and as a principle of restraint. <>stream For an argument that U.S. courts should adopt a similar rule, see Parrish, supra note 18, at 26977 (arguing for stay in favor of action first filed unless manifest injustice would result). See 22 U.S.C. Posner and Sunstein do not discuss any of these examples in detail, which others have classified among the comity doctrines. Modern customary international law requires sovereign immunity in some cases, although the exact contours of the customary international law rules are uncertain. Close 19 Residence-based taxation 126 It aims to rescue international comity from disrepute and support its critical role in U.S. foreign relations law by providing a clearer view of both the underlying principle and its manifestations in American law. Close Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, Gilbert, 330 U.S. at 50809 (outlining private and public interest factors); see also Piper, 454 U.S. at 25761 (discussing district courts application of private and public interest factors). 133 endstream 372 Also, the Court determined that there were comity considerations, such as that the IRS and Mr. Smith were not the only stakeholders in the case, but also the Australian tax authorities, which did not tax Mr. Smith on the basis that such income was supposed to be taxed in the . w3TPI2T0 BC#=3\. Subscribe/renew. Quackenbush v. Allstate Ins. endstream Id. Close . L. 223, 282 (2014) (summarizing choice-of-law methodologies). 289 21 36 40 265 Close Although Justice Scalia argued for a balancing of interests in Hartford, 509 U.S. at 81819 (Scalia, J., dissenting), he retreated in Spector to a more characteristic preference for categorical rules. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to interpret geographic scope of Sherman Act in light of FTAIA). xs 76 art. Rep. 499; Lofft. 115 Close 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.).

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