Others, like the presumption against extraterritoriality, may properly allow for deference to agency interpretations. Close 127 38 b (Am. a (Am. 196 procedures compatible with. International comity b. SUBSIDY B. 358 111359. For a more detailed discussion of the relationship between international comity and international law, see infra Part III. 118 Close Tr. 15 322 Jul 28, 2005 (502 Phil. Deference to foreign lawmakers constitutes prescriptive comity, Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. x+ | But he analyzes the doctrines from the perspective of contract theory rather than comity. Close. 410 Id. The Restatement (Second) of Conflict of Laws adopts a most significant relationship standard, Close 201 It has been fertile in suggesting a discretion unregulated by general principles. 254 See Sarah H. Cleveland & William S. Dodge, Defining and Punishing Offenses Under Treaties, 124 Yale L.J. 98 . .). 326

From Miksum to MLI, from jus gentium to jus inter gentes, historical research, By clicking accept or continuing to use the site, you agree to the terms outlined in our. As noted above, 159 235 Kirkpatrick & Co. v. Envtl. Law Inst., Preliminary Draft No. . The discretion not to recognize foreign rights was captured in the word comity. (referring to international comity to limit interference with internal affairs of foreign-flag ship); Sosa v. Alvarez-Machain, 542 U.S. 692, 761 (2004) (Breyer, J., concurring in part and concurring in the judgment) (referring to notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement). For an excellent review of possible solutions, see id. Those that follow the first Restatement of Conflicts are fairly rule-like, while those that follow the Restatement (Second) partake more of standards. 199 That is a factual phenomenon, not a legal solution to it.). endstream Whether recognition is necessary or sufficient to entitle a foreign government to immunity under the FSIA is more complicated. is this assessment valid? Close 373 17 236 64 353 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. 3493 Before the Subcomm. For example, many of the doctrines of adjudicative comity address the same basic question: When should a U.S. court defer to a foreign courts resolution of a legal dispute? . Probs., Summer 2008, at 19, 20 (Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches.). 276 266 256 TRUE 6. Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations, ,.. Most problematic are international comity doctrines that would allow the Executive to dictate the outcome of particular cases, like the Bernstein exception to the act of state doctrine or the authority that the executive branch currently claims to make binding determinations with respect to the conduct-based immunity of foreign officials. 541 U.S. 677, 70102 (2004). .). 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.). xs Close * Martin Luther King, Jr. Aug 15, 1995 (317 Phil. Close See 509 U.S. 764, 799 (1993) (concluding if defendants could comply with both U.S. and foreign law, there was no need to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity). 309 Close, It is worth noting that the boundaries between international law and international comity may shift over time. and still others preemptive federal law? and the Supreme Court has rejected a case-by-case approach for restraining the extraterritorial reach of federal statutes. endstream See, e.g., Am. Close Close First, it bolstered the use of comity as a principle of restraint. Comity refers to courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions - whether state, federal or international - not as a matter of obligation but out of deference and mutual respect. 103 36 Close Techs., 369 F.3d 645, 651 (2d Cir. ,.. Definition 1 / 155 The State, having sovereignty can enforce contributions (tax) upon its citizens even without a specific provision in the Constitution authorizing it. endobj Answer: D. One of the following is not inherent limitations on the exercise of the power of taxation - a. endstream 82 In sovereign party cases too, the interest in preserving relations with other nations and respecting foreign sovereignty came to the fore. .); 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.). .). 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. 1607. Paul Stephan similarly notes that [e]ncounters between courts may be retrospective, prospective, or on-going. Paul B. Stephan, Courts on Courts: Contracting for Engagement and Indifference in International Judicial Encounters, 100 Va. L. Rev. . See supra note 152 and accompanying text (explaining restraint was difficult to justify on basis of convenience). Under this doctrine, a court will first look to see if an adequate alternative forum exists. ,.. 120 Shangri-La International v. CA (Case Digest. but that phrase could describe either comity to legislatures or comity by legislatures. But see Joel R. Paul, The Transformation of International Comity, Law & Contemp. The author is grateful to Steve Bundy and David Sloss for these points. Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). J. Intl L. 20, 2829 (1948) (noting Peace of Westphalia established new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another, and free from any external earthly authority). 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. 350 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 40809 (1964); see also The Sapphire, 78 U.S. (11 Wall.) See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). 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). To raise revenue 35 constitutional exemption of religious or charitable institutions refers only to- Real property tax 36 agreement . ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). Close endobj Childress, supra note 20, at 34. Posner and Sunstein consider only a limited number of comity doctrines. 14mc00190 (JSR), 2014 WL 3893953, at *1 (S.D.N.Y. taxation notes, reviewer . 283 1971) (applying Pennsylvania law to enforcement of foreign judgment); Restatement (Third) of the Foreign Relations Law of the United States 481 cmt. Close, With respect to foreign official immunity, the executive branch has claimed authority to make binding determinations since the Supreme Courts 2010 decision in Samantar. Statement 2: International comity is an inherent limitation in taxation. at 256 (stating foreign plaintiffs choice deserves less deference). To say that the presumption applies in all cases is not to say that U.S. statutes apply only to conduct in the United States. 1965) (A state is not required by international law to give effect to a rule prescribed or enforced by another state. xs But it is ultimately courts that interpret and apply these rules, sometimes relying on background principles of prescriptive comity to do so. The Court turned to comity after concluding that the treaty itself did not displace U.S. discovery rules. Trades Council, 485 U.S. 568, 575 (1988) (stating constitutional avoidance canon has its roots in Chief Justice Marshalls opinion for the Court in Murray v. The Charming Betsy); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500 (1979) (misciting The Charming Betsy for proposition that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available). 296 x+ | Close As noted above, diplomatic immunity is codified in the Vienna Convention on Diplomatic Relations, while head-of-state immunity is a rule of customary international law. endstream .). would be better served if these questions of law and fact were decided by the courts rather than by the executive branch. (The act of state doctrine, like the doctrine of immunity for foreign sovereigns, has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.). + Van Reimsdyk v. Kane, 28 F. Cas. In a sense, all of these doctrines defer to the executive branch. 20 0 obj . <>stream International comity connotes courtesy between nations.TRUE 5. 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. the act of state doctrine, In contrast to state-law rules on the conflict of laws, the act of state doctrine has no public policy exception. but no customary international law rule prohibiting the exercise of such jurisdictional bases has emerged. H Close .). Close 223 + Def. Such a statute is effective as domestic law but does not relieve the United States of responsibility for the international law violation. 1987) (listing factors to determine if exercise of prescriptive jurisdiction is unreasonable); see also id. 692). 1994). <>>>/BBox[0 0 377.76 588]/Length 46>>stream 170 Harv.Int'l. LJ, 32, 1. 366 87, 100 (2003) ([T]he Arospatiale decision improperly de-emphasized system values as compared to particular interests raised in individual cases, and. <>stream Some of those exceptions are mandatory. Posner and Sunstein, however, discuss only a limited number of international comity doctrines. 40 Close Samantar v. Yousuf, 130 S. Ct. 2278 (2010); see, e.g., Brief for the United States as Amicus Curiae Supporting Appellees at 10, Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 355 Close In Oetjen v. Central Leather Co., the Supreme Court said that the act of state doctrine rests upon the highest considerations of international comity and expediency and that to question the validity of a foreign act of state would very certainly imperil the amicable relations between governments and vex the peace of nations. Close The power of taxation is limited to the territorial jurisdiction of the taxing state. 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. This Article also omits enforcement of arbitration clauses, which Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. said rested in part on concerns of international comity. 473 U.S. 614, 629 (1985). 149 111 389, Sec. Close Close 74 <>>>/BBox[0 0 377.76 588]/Length 47>>stream Close <>>>/BBox[0 0 377.76 588]/Length 47>>stream Having briefly surveyed the historical development of international comity, this Article now looks in greater detail at the uses of international comity in American law today. Situs or territoriality - As a rule, the taxing power cannot go beyond the territorial limit of the taxing authority. 77 The shift from private to public rationales for comityfrom convenience to sovereigntyhad a number of consequences. Close Close 321), The aggravating circumstances of nighttime, G.R. EEOC v. Arabian Am. Close Factors that determine the situs of taxation. See supra notes 224227 and accompanying text (discussing 28 U.S.C. endobj 2009) (holding prudential exhaustion applies equally to cases brought against foreign states (and their instrumentalities) under the FSIA), vacated, 616 F.3d 1019 (9th Cir. Kirkpatricks approach was more rule-like than the approach in Sabbatino, where the Court suggested a case-by-case balancing of factors. the laws of one State have no operation outside of its territory, except so far as is allowed by comity). 258 Restatement (Third) of the Foreign Relations Law of the United States 401(a) (Am. Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, (forthcoming 2016) (manuscript at 3364) (on file with the Columbia Law Review) (examining reasons for Courts deference to views of foreign sovereigns who file amicus briefs). G.R. 34 323 239 to those organizing corporations. 379 w3TPI2T0 BC#=C3\. (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. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). Thus, the 2005 Uniform Act, for example, provides that a court of this state shall recognize a foreign-country judgment to which this [act] applies, subject to a list of enumerated exceptions. Giving the executive branch authority to make case-by-case determinations under doctrines of international comity is a bad idea. 335 248 154514. Close 126 In both of these aspects, sovereign party comity defers to foreign government actors as litigants in U.S. courts. In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control. at 622 (Zilly, J., concurring in part and dissenting in part) (I would join the Third Circuit in declining to follow the Eleventh Circuit down the prospective comity path.). Close Journal of Political Economy, University of Chicago Press, vol. Close 1605A(h)(6) (2012). 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. 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. 269 1170, 1177 (2007) ([T]here are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity. See id. 4 International law and international comity both mediate the relationship between the U.S. legal system and other nations, but they are fundamentally different. 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. or at a minimum that courts are not always clear or consistent. In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. 151 endobj When an award is annulled at the seat, however, enforcing courts in secondary . 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. Close endobj Close Close menuDrawerCloseText menuDrawerOpenText Home. 6 137 Colo. River Water Conservation Dist. Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va. J. Intl L. 127, 147 (2012); Childress, supra note 20, at 16. .). xs 203 325 endstream Co. v. Superior Court of Cal., 480 U.S. 102, 115 (1987). Close 39 to extend comity, or is it simply a question of convenience? 1. nature, kind or classification of the tax 5. sources of income. Id. 117 As a principle of restraint, adjudicative comity operates through a multitude of doctrines that limit the exercise of U.S. courts jurisdiction, often with the aim of avoiding multiple proceedings. By the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, Justice Story wrote in Prigg v. Pennsylvania. Close On September 20, 2016, the U.S. Court of Appeals for the Second Circuit issued an opinion in In re Vitamin C Antitrust Litigation, reversing the district court's eight year-old decision not to grant a motion to dismiss the case, based on international comity. 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.. Apr 30, 1957 (101 Phil. 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. 121004. 69 261. xs Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). depends upon what our greatest jurists have been content to call the comity of nations). An educational institution operated by a religious organization was being required by a local government to pay real property tax. State courts consider the uniform acts to be codifications of international comity, . at 1201. 38 U.S. (13 Pet.) Close 1607 (denying foreign government immunity from counterclaims). 237, 260 (2010). 10, art. x+ | . The doctrine provides that American courts will not question the validity of a foreign act of state fully performed within the states own territory. Resol. 299 Id. (We are bound to give effect to the assignment [of personal property]. 361 1827) (Porter, J.)) Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, 333 Close 380 The Article should not be understood to suggest that there is a single form of international comity appropriate to every situation. 115 But U.S. courts treat most of these discretionary grounds for nonrecognition as mandatory in practice. Like Huber and Story, Gray noted the territorial sovereigns discretion not to enforce foreign law against its own interests. The following are the inherent powers of the state except one. The act of state doctrine operates as a rule rather than a standard, 408 267 Close 370 Close 148 International comity has performed a variety of functions in American law. 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. See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. endobj The Court has recognized exceptions for countries at war with the United States or not recognized by the United States. 129 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 40809 (1964) (Under principles of comity governing this countrys relations with other nations, sovereign states are allowed to sue in the courts of the United States.). Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 7(a) (2006) (A foreign judgment shall not be recognized or enforced in a court in the United States if the court finds that comparable judgments of the courts in the United States would not be recognized or enforced in the courts of the state of origin.); see also John F. Coyle, Rethinking Judgments Reciprocity, 92 N.C. L. Rev. Close 217 Close Close See 22 U.S.C. ,.. 65 157 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). S.S. Rana & Co. This Article takes a different approach. No. Restatement (Third) of the Foreign Relations Law of the United States, pt. at 227 ([J]udgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country. xS**T0T0 Bih]" g 307 It therefore excludes international comity by the executive branch in the exercise of its own authority. is compromised by case-by-case, selective determinations of jurisdiction by the Executive. 8, intro. 78j (2012), which prohibits fraud in connection with the purchase or sale of a security. v. <>>>/BBox[0 0 377.76 588]/Length 47>>stream and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. and, conversely, has used comity to explain why foreign governments should be allowed to bring suit as plaintiffs in American courts. 519, 590 (1839) (recognizing foreign corporation is but the usual comity of recognising the law of another state). See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (concluding principles of prescriptive comity limit U.S. antitrust law). 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. 115(1)(b) (That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.). Close. Sys. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. Close Rep. 1120, 1121; 1 Cowp. The Executives action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, the Court noted. See infra notes 404410 and accompanying text (noting purpose of FSIA to transfer foreign state immunity determinations to courts). This discretionary aspect of international comity has been responsible for much of the criticism that the doctrine has attracted over the years. 273 . 410 The majority held that the concept of international comity requires. 43 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. 397 239 29, 2006) ([I]ssues of comity weigh against allowing the discovery in this case.). (L 351) 1 (governing lis pendens and related actions); see also George A. Bermann, Parallel Litigation: Is Convergence Possible?, 13 Y.B. Jun 30, 1966 (123 Phil. 26 0 obj 229 endstream See Restatement (Third) of the Foreign Relations Law of the United States 401(a) (noting prescriptive jurisdiction may be exercised by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court). a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency). 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. It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. Close 18, 1961, 23 U.S.T. The presumption in favor of a foreign plaintiffs choice of a U.S. forum is less strong. Close Socit Nationale Industrielle Arospatiale v. U.S. Dist. 368 See supra note 134 (explaining Justice Scalias approaches in Empagran and Hartford). 141), Service incentive leave; conversion to cash, G.R. 86 See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. Sec. Close + 22 0 obj w3TPI2T0 BC#=C3\. 290 No. The Ninth Circuit developed this doctrine in the context of human rights litigation under the Alien Tort Statute. 233 2005 Uniform Act, supra note 106; 1962 Uniform Act, supra note 106. Corp., 460 U.S. 1, 23, 26 (1983) (advising district courts to consider additionally: (1) whether federal law provides the rule of decision on the merits; and (2) whether nonfederal proceeding would adequately protect federal plaintiffs rights). Close Close 21. 43 0 obj Co. of N.Y. v. United States, 304 U.S. 126 (1938). 191 1411), G.R. endobj See id. 215 and the recognition of a foreign government by the Executive will bring its previous acts within the scope of that doctrine. Close So much has been written about international comity that it would be impossible to respond to every argument in a single article. 338 If that recognition occurs as a matter of comity, as has traditionally been the case with the conflict of laws in the United States, it may properly be deemed an exercise of prescriptive comity., Some writers have preferred legislative comity, 45 Scholars echo these complaints. Id. Section 2(b) of the Torture Victim Protection Act imposes an exhaustion requirement by statute for human rights claims brought under that act. 141 1080, 1102 (1995) (In enforcing the antitrust laws, the Agencies consider international comity.); see also The Paquete Habana, 175 U.S. 677, 69394 (1900) (characterizing Executives decision not to seize coastal fishing vessels as prizes of war, prior to its evolution into rule of customary international law, as exercise of comity); United States v. Rauscher, 119 U.S. 407, 41112 (1886) (noting decision to deliver fugitive to foreign government in absence of extradition treaty was act of comity). at 164. 312 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). endobj 129 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. 1, 2014) (noting no Uniform Act requires reciprocity for recognition of foreign judgment, although six states have added reciprocity as condition for recognition). Close Close 27 0 obj ,.. In 28 U.S.C. Close Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 95051 (D.C. Cir. See Ramsey, supra note 19, at 896 n.16 (I speak here and throughout this Article only of international comity used in connection with the effect-of-foreign-acts inquiry.). These doctrines undoubtedly implicate foreign relations, but they also fall within the core responsibility of the courts to manage their dockets and decide cases.
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