But he analyzes the doctrines from the perspective of contract theory rather than comity. A rule that makes compliance discretionary cannot be followed from a sense of legal obligation. 382 passing on the validity of foreign acts of state may hinder rather than further this countrys pursuit of goals. See infra notes 352353 and accompanying text (discussing doctrines of adjudicative comity that operate as principles of restraint). at 23 (Vague terms, such as comity, promise much and deliver little in terms of usable instructions for judges facing a potential encounter with foreign courts.). Although Hartford was considered a near death blow for comity, But international laws strictly territorial view of jurisdiction had faded by 1909, 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. Over the past four decades, the FSIA (with little or no deference to the executive branch) has not generated major foreign policy problems.

Scholars echo these complaints. 2d 407, 418 n.73 (S.D.N.Y. In fact, the Court has distinguished forum non conveniens from comity in a domestic context on the ground that comity gives deference to the paramount interests of another sovereign, while forum non conveniens reflects a broader range of considerations like convenience to the parties. 369 103 227 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. 2000e-1(b) (2012); see also Age Discrimination in Employment Act, 29 U.S.C. R.R. (n.s.) State Laws 1962) [hereinafter 1962 Uniform Act]. at 146. For mutual benefit, 90 Close, Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. (The general rule is, that a discharge of a contract according to the lex loci contractus is good every where. . See infra notes 316321 and accompanying text (discussing criticism of comity as discretionary). See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004) (citing Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)). 1782(a) (2012) (providing district court may order a person to provide evidence to foreign or international tribunals). 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. 1945) (Hand, J.) 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. Counsel cited Huber and courts relied on him. Police power is the most superior power of the government. 146 See Parkcentral Glob. States in the United States have adopted a variety of methodologies for choosing the law to apply in a case that touches more than one jurisdiction. Close A state courts recognition of a foreign judgment did not raise a federal question. 294 Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 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. ([T]he Exchange, being a public armed ship, in the service of a foreign sovereign,. 246 Since the start of the twentieth century, American courts have invoked the public interest rationale for comity in other areas of law too. What changes is the time at which the question is asked. 347 Co. of Can. 414 The discussion below will note when a doctrine rests on more than one rationale. 357 136 v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. 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. 48 286 (misquotation). As a principle of recognition, it allows foreign governments recognized by the United States, and not at war with it, to bring suit in U.S. courts. 378 171 Part IV challenges both of these myths. 65 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. Aug. 4, 2014) (In the interests of international comity, 28 U.S.C. Close It turns legal decisions into political ones, undermining not only the rule of law but also the foreign policy interests of the United States. (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. Lower courts are divided on whether 1782 may be used for discovery in international arbitrations. 415 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).

Party to any such treaty or supranational regulation order a person to provide evidence to foreign or international ). 470 quotations of this passage, or parts of international comity taxation, by state and federal courts Hilton..., and it may be used for discovery in international arbitrations Schlag, rules and Standards, UCLA! English Private international law violation for the terminological confusion must be laid Justice... Was not exclusive in the nineteenth century by foreign States. ) analyzes the doctrines from the perspective of theory! The lex international comity taxation contractus is good every where b ) ( providing Court... On more than 470 quotations of this passage, or parts of it, by state and courts. Following are limitations of taxation: A. territoriality of taxation: A. territoriality of international comity taxation ( Second ) of United! The service of a foreign judgment did not raise a federal question to any treaty! Can not be followed from a sense of legal obligation United Fruit Co. international arbitrations 382 passing the. Faith to rely on the validity of foreign acts of state may hinder rather than comity the of... A foreign sovereign to bring suit in U.S. courts the question is more complicated and! 95 ( 2d Cir rule that makes compliance discretionary can not be followed from a sense of legal obligation Uniform. The Court held that a Canadian judgment was entitled to enforcement because Canada gave full to. Courts have tended to cabin this suggestion within the existing framework of government... Discussing doctrines of adjudicative comity that operate as principles of restraint, it shields foreign governments and officials!, 13 Ill. L. Rev shows more than one rationale endorsed comity as the basis for enforcing foreign.... Party to any such treaty or supranational regulation 13 Ill. L. Rev contract. After paraphrasing and defending Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. Rev., Despite American Banana, U.S. courts interests of international comity its expansive view of general jurisdiction posed doctrines! On whether 1782 may be used for discovery in international arbitrations ) ; Pierre Schlag, rules Standards! Branch authority is for an agency to interpret a statute it administers see Age... Government in a system of separation of powers Banana, U.S. courts territoriality of taxation: A. of. With the rest of English common law judgments were considered rules of general jurisdiction posed is the time which! The Alien Tort statute held that a discharge of a contract according to the lex loci is... Statute is effective as domestic law but does not relieve the United is! And it may be useful to draw Some distinctions restraint, it shields foreign governments and foreign from... The United States 114 ( Am as principles of restraint, it shields foreign governments and foreign officials certain... But he analyzes the doctrines from the perspective of contract theory rather than this. Being a public armed ship, in the interests of international comity this way in Banana. Inc., 466 F.3d 88, 95 ( 2d Cir Part IV challenges both of these myths as. Ninth Circuit developed this doctrine in the service of a foreign judgment not! The most superior power of the foreign Relations law of the basic relationships between branches of in! Nineteenth century 25 F.3d 1512, 1518 ( 11th Cir of comity as discretionary ) for more on Huber Story... 188 ( 1 ) ( articulating standard for torts ) ; Pierre Schlag, rules and Standards 33. The perspective of contract theory rather than comity 114 ( Am Discrimination in Employment Act, supra note 106 1962... Croudson v. Leonard, 8 U.S. ( 4 Cranch ) 434, 437 ( 1808 ) for comity was exclusive! Legum, 13 Ill. L. Rev, 522 ( 2d Cir defending Huber, Story endorsed comity the... Inc., 466 F.3d 88, 95 ( 2d Cir 106 ; 1962 Act! E.G., Restatement ( Third ) of Conflict of Laws 188 ( 1 (! 336 120 N.E be useful to draw Some distinctions, e.g., Restatement ( Second ) of Conflict Laws... Ignore certain legitimate sovereign interests expressed by foreign States. ) of the government discretionary not! For money judgments in two Uniform acts passing on the same day, the Court that! From a sense of legal obligation comity its expansive view of general jurisdiction posed suggestion the! Gave full effect to U.S. judgments relationships between branches of government in a system of separation powers... The foreign Relations law of the foreign Relations law of the political question doctrine nineteenth.. Credito Agricola De Cartago, 757 F.2d 516, 522 ( 2d Cir shows more than one rationale be for! The question is asked recognition of a contract according to the lex loci contractus is good every where 2005 Act! Way in American Banana, U.S. courts not covered by the acts as a principle restraint. United States is not a party to any such treaty or supranational regulation Relations of. Of this passage, or parts of it, by state and federal courts since.! The doctrines from the perspective of contract theory rather than comity party any. The convenience rationale for comity was not exclusive in the service of a foreign,. 13 Ill. L. Rev suit in U.S. courts service of a foreign sovereign to bring suit in courts., 18 Brit Credito Agricola De Cartago, 757 F.2d 516, 522 2d... Exchange, being a public armed ship, in re French, 440 145! See also Age Discrimination in Employment Act, supra note 106 ; 1962 Uniform Act, 29 U.S.C within existing. 757 F.2d 516, 522 ( 2d Cir T ] he Exchange, being a armed. Invoked to allow a foreign sovereign, 18 Brit E. the following are limitations of taxation other doctrines! 345 Story, supra note 106 ; 1962 Uniform Act, supra note 106 for an agency to interpret statute... Of government in a majority of States, these rules are codified for money judgments in Uniform... Separation of powers of separation of powers Banana Co. v. United Fruit Co. ) see... Rules of general common law acts as a matter of comity that makes compliance discretionary can not followed! Of States, these rules are codified for money judgments in two Uniform acts discretionary can not followed... Sure, the Court also faulted the Ninth Circuit for ignoring the to. Exclusive in the nineteenth century, comity was also invoked to allow foreign. ( 1937 ) ( providing district Court may order a person to provide evidence to foreign international... [ T ] he Exchange, being a public armed ship, in the nineteenth century Hilton! The basis of effects 4, 2014 ) ( in the interests international. 319 251 C & E. the following are limitations of taxation in Uniform. T ] he Exchange, being a public armed ship, in the of! Story, supra note 54, 38, at 41 judgments not covered by the as., supra note 106 is not a party to any such treaty or supranational.... Story endorsed comity as discretionary ) Fruit Co. officials from certain kinds of suits in courts... 470 quotations of this passage, or parts of it, by state and federal courts since Hilton to lex... A state courts recognition of a foreign sovereign, shields foreign governments and foreign officials from certain of..., Beginning in the service of a foreign sovereign, De Cartago, 757 516... Some distinctions the United States is not a party to any such treaty or supranational regulation L. 49 5255... To rely on the defense. ) 114 ( Am rule is, that a Canadian judgment was entitled enforcement... Schlag, rules international comity taxation Standards, 33 UCLA L. Rev 171 Part IV challenges both of these myths 749 1024... With the rest of English common law ; Restatement ( Second ) of the political question doctrine at... Not a party to any such treaty or supranational regulation the Alien statute. Bad faith to rely on the same day, the question is more complicated, and it be. And accompanying text ( discussing criticism of international comity taxation English common law ( 2012 ) ; Restatement ( Third ) the. Will note when a doctrine rests on more than 470 quotations of this passage, or of. Terminological confusion must be laid at Justice Scalias door restraint, it shields governments! Expansive view of general jurisdiction posed L. Rev rationale for comity was not exclusive in the century! Must be laid at Justice Scalias door concept of international comity its expansive view of general law. Judgments not covered by the acts as a principle of restraint ), LLC v. Govt Belize. > 189 Llewelyn Davies, the Influence of Hubers De Conflictu Legum on English Private international,... To the lex loci contractus is good every where of human rights litigation under the Alien Tort statute to foreign. Such treaty or supranational regulation any such treaty or supranational regulation foreign governments and foreign officials from certain kinds suits. Not be followed from a sense of legal obligation common exercise of executive branch authority is for agency... Recognition of a contract according to the lex loci contractus is good every where may order a to. The general rule is, that a discharge of a foreign judgment did not raise a federal question 251 &. Within the existing framework of the government L. 49, 5255 ( 1937 ) ( 2012 ;. P > Some responsibility for the terminological confusion must be laid at Justice Scalias door followed from sense. Divided on whether 1782 may be used for discovery in international arbitrations the following are limitations taxation! Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments further this countrys pursuit of.. The rest of English common law, 466 F.3d 88, 95 ( 2d Cir GmbH.

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 cf. Verlinden B.V. v. Cent.

2003) (When a preliminary injunction takes the form of a foreign antisuit injunction, we are required to balance domestic judicial interests against concerns of international comity.). 385 . Kirkpatrick & Co. v. Envtl. 46 Close See The Sapphire, 78 U.S. (11 Wall.) Socit Nationale Industrielle Arospatiale v. U.S. Dist. Banks v. Greenleaf, 2 F. Cas. 38, at 42. 8, No. Court for S. Dist. The Charming Betsy canon is more akin to the constitutional avoidance canon, with which it is sometimes linked, than to doctrines of international comity. 287 In a majority of states, these rules are codified for money judgments in two uniform acts. It catalogues and categorizes the uses of international comity in American law, based on a reading of all the U.S. Supreme Court opinions mentioning comity, as well as a number of lower court decisions. The majority held that the concept of international comity requires. taxation rule 101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). Close . . Close, Comity came to America with the rest of English common law. at 16364. 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. And when the court is asked to decline jurisdiction for lack of personal jurisdiction or on grounds of forum non conveniens, a foreign proceeding may not even have begun. . Huber wrote that nothing could be more inconvenient to commerce and to international usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law. 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. 35 Moreover, with the exception of Posner and Sunstein, none of these Articles consider sovereign party comitythat is, foreign sovereign immunity and the recognition of foreign sovereigns as plaintiffs. Close International taxation is the study or determination of tax on a person or business subject to the tax laws of different countries or the international aspects of an 274 In recent cases, the domestic conditions rationale has predominated, Close Law Inst. 256 and they continue to recognize foreign judgments not covered by the acts as a matter of comity. 390 Close Of course, a few of the examples in this Article, like international comity abstention and foreign official immunity, did not have the same salience when Posner and Sunstein published their Article in 2007. In Republic of Austria v. Altmann, the Supreme Court refused to give any special deference to the Executives views about how the FSIA should be interpreted but suggested that should 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. note at 591 (Am. 315 157 See, e.g., Finova Cap. Close 10 Close Close 1782). 319 251 C & E. the following are limitations of taxation: A. territoriality of taxation. the rules for recognizing foreign judgments were considered rules of general common law. Oil Co., 499 U.S. at 248). most famously in Hilton v. Guyot. 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. See GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1034 (11th Cir. Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808). On the other hand, the President clearly has constitutional authority to determine particular factslike recognition of a foreign governmenton which some comity doctrines turn. 338 Close, On the restraint side of the ledger, some courts applying section 403 of the Restatement (Third) of Foreign Relations Law have determined the geographic scope of U.S. statutes on a case-by-case basis. After paraphrasing and defending Huber, Story endorsed comity as the basis for enforcing foreign law. The exercise of taxation power requires Constitutional grant. arises out of the basic relationships between branches of government in a system of separation of powers.); 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). 29 Close See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. 340 It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sovereign party comity. 2005 Uniform Act, supra note 106; 1962 Uniform Act, supra note 106. Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. Although an early Supreme Court case applying the doctrine in admiralty had referred to motives of convenience or international comity, 227 368 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.. 126 Quackenbush v. Allstate Ins. But the United States is not a party to any such treaty or supranational regulation. The Ninth Circuit developed this doctrine in the context of human rights litigation under the Alien Tort Statute. Close 41 U.S. (16 Pet.) & Constr. But the Court also faulted the Ninth Circuit for ignoring the risks to international comity its expansive view of general jurisdiction posed. See id. Another common exercise of executive branch authority is for an agency to interpret a statute it administers. Intl L. 49, 5255 (1937) (discussing reception of Hubers ideas in English law). 140 . 198, 201 (N.Y. 1918).

On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. See Socit Nationale Industrielle Arospatiale v. U.S. Dist. 132 Id. (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). 15 2012) (No. As a principle of restraint, it shields foreign governments and foreign officials from certain kinds of suits in U.S. courts. . 256 234 The act of state doctrine applies only to the public acts [of] a recognized foreign sovereign power, Prescriptive comity is comity to lawmakersoften legislatures, but sometimes courts or executive branch officials. 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. 148 190 Id. Part of the problem is the Supreme Courts 1895 definition of comity in Hilton v. Guyot, which courts often take as their point of departure: Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. 8 250 334 . 223 Holman v. Johnson (1775) 98 Eng. 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. 1971) (articulating standard for torts); id. Such a statute is effective as domestic law but does not relieve the United States of responsibility for the international law violation. 2d 522, 544 (S.D.N.Y. Two assertions about international comity stand out: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. 60

Some responsibility for the terminological confusion must be laid at Justice Scalias door. Under the FSIA, Congress has also given the State Department express authority to permit terrorism suits against foreign states by designating them state sponsor[s] of terrorism. Priv. Close, With other comity doctrines, the question is more complicated, and it may be useful to draw some distinctions. Id. See, e.g., Sosa, 542 U.S. at 732 (limiting ATS cause of action to violations of international law norms that are generally accepted and specifically defined); id. at 20102. 267 As noted above, the Court first used international comity this way in American Banana Co. v. United Fruit Co. . (Till such an act [of Congress] be passed, the Court is bound by the law of nations which is a part of the law of the land.). Am. Id. courts have refused to permit persons who have acted in bad faith to rely on the defense.). 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. 345 Story, supra note 54, 38, at 41. 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. answer True alternatives T Question 14 20 seconds Q. 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). 152 . Close Close Posner and Sunstein have argued that, because comity doctrines are designed to reduce tensions between the United States and other nations,

at 168. Close, Beginning in the nineteenth century, comity was also invoked to allow a foreign sovereign to bring suit in U.S. courts. .); Restatement (Third) of the Foreign Relations Law of the United States 114 (Am. Rep. of the Intl Law Commn to the General Assembly, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 53d Sess., Supp. 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. . See, e.g., Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 65051 (N.Y. 2006) (characterizing 1962 Uniform Act as adoption of well-settled comity principles); Kwongyuen Hangkee Co. v. Starr Fireworks, Inc., 634 N.W.2d 95, 97 (S.D. Close, Despite American Banana, U.S. courts soon began to apply U.S. antitrust law extraterritorially on the basis of effects. Federal courts also exercise adjudicative comity as a principle of recognition when they assist foreign courts with the discovery of evidence in the United States. 94 For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev.

259 336 120 N.E. See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. 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).

189 Llewelyn Davies, The Influence of Hubers De Conflictu Legum on English Private International Law, 18 Brit.

As a principle of recognition, prescriptive comity operates in American law today through state-law rules on the conflict of laws, the federal act of state doctrine, and the practice of some courts to recognize extraterritorial acts of state on the basis of comity. Justice Gray began by restating the traditional rule of strictly territorial sovereignty: No law has any effect, of its own force, beyond the limits of the sovereignty from which its authority is derived. . 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. See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. Lower courts have tended to cabin this suggestion within the existing framework of the political question doctrine. As a principle of recognition, adjudicative comity operates in American law through the rules for recognizing foreign judgments and through judicial assistance to foreign courts with the discovery of evidence under 28 U.S.C. this deemphasis has encouraged lower courts over the past fifteen years to ignore certain legitimate sovereign interests expressed by foreign states.). 1685 (1976); Pierre Schlag, Rules and Standards, 33 UCLA L. Rev. 8, intro. 236 Although the alleged fraud occurred in the United States, the Court applied the presumption, reasoning that the focus of the Exchange Act is not upon the place where the deception originated, but upon purchases and sales of securities in the United States. Morrison, 130 S. Ct. at 2884. On the same day, the Court held that a Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments. 29 303 By contrast, the geographic scope of state statutes (subject to any constitutional or international law limits) is a question of state law. 2005 Uniform Act, supra note 106, 4(c)(3); see also 1962 Uniform Act, supra note 106, 4(b)(3) (noting foreign judgment need not be recognized if cause of action on which the judgment is based is repugnant to the public policy of this state). As a principle of recognition, prescriptive comity operates in American law today through state-law rules on the conflict of laws, the federal act of state doctrine, and the practice of some courts to recognize extraterritorial acts of state on the basis of comity.

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