Bradley, supra note 66, at 666. As State Department Acting Legal Adviser Charles Brower testified, We at the Department of State are now persuaded. See Hilton v. Guyot, 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. These doctrines undoubtedly implicate foreign relations, but they also fall within the core responsibility of the courts to manage their dockets and decide cases. 177 1. It is also possible for international law to shrink and leave gaps for comity to fill. 23 Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. 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)). de C.V., 701 F.3d 1031, 1053 (5th Cir. 416 (discussing exhaustion of local remedies under international law).
), a famous decision in which Lord Mansfield refused to recognize foreign laws making someone a slave. See DeBartolo Corp. v. Fla. Gulf Coast Bldg. 282 J. Transnatl L. 171, 18387 (2013) (characterizing First Restatement as based on rules and Second Restatement as mix of rules and standards). Close. Posner & Sunstein, supra note 33, at 1205. See infra notes 386388, 404410 and accompanying text (discussing FSIA). 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). By contrast, the geographic scope of state statutes (subject to any constitutional or international law limits) is a question of state law. rightly done according to the law of any particular place, are valid even where a different law prevails.). Close Ulrich Huber, De Conflictu Legum Diversarum in Diversis Imperiis (Ernest G. Lorenzen trans. 1, intro. 401 260-267 300 341 28 U.S.C.
See Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.); Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943) (holding determination of state immunity must be accepted by the courts as a conclusive determination by the political arm of the Government). See Socit Nationale Industrielle Arospatiale v. U.S. Dist. 299 302 , it was generally assumed that the See Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (permitting exercise of personal jurisdiction based on certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)); see also supra note 136 and accompanying text (discussing International Shoe). Close, Judicial assistance to foreign tribunals under 1782, on the other hand, is clearly discretionary. See 11 U.S. (7 Cranch) 116, 147 (1812) (Marshall, C.J.) Piper, 454 U.S. at 255. 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. 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. 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.). and deference to foreign governments as litigants is sovereign party comity. . Restatement (Second) of Conflicts of Laws 90 (No action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum.). a. Davis L. Rev. Co. of N.Y. v. United States, 304 U.S. 126 (1938). Some of these references may be intended simply to emphasize that foreign sovereign immunity is not required by the Constitution. 121 This rule turns on two easily ascertainable facts. 
47 (n.s.)
Tr. Such discretion invades the province of the judiciary and may harm, rather than advance, U.S. foreign relations. Close. Thus, prescriptive comity operates as a principle of restraint in American law chiefly through the presumption against extraterritoriality and the doctrine of foreign state compulsion. 78 1081, 1103 (2015); see also Michael D. Ramsey, Escaping International Comity, 83 Iowa L. Rev. 15.300.380 (2013) (codifying choice of law for contracts); id. 7 Because of its expertise in foreign relations, the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary. Achille Lauro, 937 F.2d 44, 4749 (2d Cir. Law Inst. Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. The Court has also expressly rejected reciprocity as a condition to a foreign governments privilege of bringing suit in U.S. courts. Close Under customary international law, for example, the United States may apply its law extraterritorially only if it has a basis for jurisdiction to prescribe. others both state and nonpreemptive federal 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.). As Trey Childress has noted, because there is no clear analytical framework for exercising international comity, courts have been left to cobble together their own approach. Close 
401(b) (defining jurisdiction to adjudicate as jurisdiction to subject persons or things to the process of its courts or administrative tribunals). 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. . Testifying before Congress in favor of the proposed FSIA, State Department Legal Adviser Monroe Leigh said that the State Departments consideration of political factors is, in fact, the very antithesis of the rule of law which we would like to see established. The Charming Betsy canon is more akin to the constitutional avoidance canon, with which it is sometimes linked, than to doctrines of international comity. . 180 241 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. depends upon what our greatest jurists have been content to call the comity of nations); see also Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (noting spirit of comity lies behind enforcement of foreign judgments). 10 115 460, 472 (N.Y. 1820) (Kent, J.) The strongest of all the inherent powers of the State 5. 36 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. See, e.g., Verlinden B.V. v. Cent. and the Supreme Court has rejected a case-by-case approach for restraining the extraterritorial reach of federal statutes. Rules may also have advantages with respect to comitys other purpose of promoting commercial convenience. 2001) ([W]e apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court in the interests of international comity.); Al-Abood ex rel. Categorizing the doctrines also facilitates comparisons within and across categories and raises new questions. . See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. at 763. 237 Sometimes, Congress itself writes a foreign state compulsion defense into the text of a statute. Since Intel, lower courts have recognized international comity as the underlying basis of 1782, (n.s.) 366
Exemption of the government 5. 214 Certainly there is a rule-like quality to Daimlers limitation of general jurisdiction to a forum where the defendant is at home, which generally means an individuals domicile or a corporations place of incorporation or principal place of business. but as the First Circuit has pointed out, this may not be the best approach. Previous article. of Iowa, 482 U.S. 522, 543 (1987) (noting concept of international comity requires particularized analysis of discovery requests). But once comity came to be seen exclusively in terms of deference to the paramount interests of another sovereign,
323 at 522; see also Banco Nacional de Cuba v. Chem. 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. 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. 577, 579 (C.C.D. A review of the international comity doctrines in American law shows that many take the form of rules rather than standardsfrom foreign sovereign immunity, to the act of state doctrine, to the presumption against extraterritoriality. The Courts characterization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. See Cohen, supra note 34, at 436 (Special deference to the Executive on foreign affairs now seems ill-placed.). 231 In a sense, all of these doctrines defer to the executive branch. The Supreme Court refused in Intel Corp. v. Advanced Micro Devices, Inc. to impose a rule limiting assistance to evidence that would be discoverable under the foreign tribunals rules, but the Court noted that comity and parity concerns may be important as touchstones for a district courts exercise of discretion in particular cases. Id. During the first half of the twentieth century, as international law moved away from a strictly territorial view of jurisdiction, comity began to play new roles, restraining the reach of U.S. laws and the jurisdiction of U.S. courts. See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir. Close 62 Close . 364 322 101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). WebInternational double taxation may arise in connection with taxes on personal prop-erty, taxes on consumption, inheritance taxation, and income taxation. Corp. v. M.V. 305 See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. American Banana, 213 U.S. at 356. note at 17 (Am. I, 8, cl. . 246
. Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. Customary international law does not require the recognition and enforcement of foreign judgments. Territorial in Scope See supra notes 124126 and accompanying text (describing shift in Supreme Courts approach). .); Answers in Genesis of Ky., Inc. v. Creation Ministries Intl, Ltd., 556 F.3d 459, 467 (6th Cir. until Congress passed the FSIA in 1976. See id. 246 2014) (To date, we have reserved prospective international comity abstention for rare (indeed often calamitous) cases in which powerful diplomatic interests of the United States and foreign sovereigns aligned in supporting dismissal.); see also Perforaciones Exploracin y Produccin v. Martimas Mexicanas, S.A. de C.V., 356 F. Appx 675, 681 (5th Cir. 1987). Although Hartford was considered a near death blow for comity, Id.
Close, The changing role of international comityattributable to international laws movement away from strict territorialityled in turn to a shift in the justifications for comity. Forum non conveniens is an exception that applies in certain narrow circumstances. Justice Story wrote in his treatise that this comity of nations was founded upon the notion of mutual convenience and utility. 374 
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. The myth that rules of international comity are impossible goes back to Justice Story. 335 and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Hubers third maxim stated that a government would give effect to foreign laws within its territory only so far as they do not cause prejudice to the power or rights of such government or of its subjects. 131 This Article provides the first comprehensive account of international comity in American law. Close The history of international comity begins with the seventeenth-century Dutch jurist Ulrich Huber. See id. See Kevin M. Clermont & John R.B. Close Asahi Metal Indus. But international laws strictly territorial view of jurisdiction had faded by 1909, 272 Law Inst. Id. 336 See, e.g., Finova Cap. For discussion of what Story meant by this distinction, see infra notes 213214 and accompanying text. 649, 679725 (2000) (discussing range of foreign affairs doctrines). 242 175 343 v. United States, 424 U.S. 800, 818 (1976) (identifying following factors: (1) which court first assumed jurisdiction over the property, if any; (2) inconvenience of the federal forum; (3) desirability of avoiding piecemeal litigation; and (4) order in which jurisdiction was obtained by the concurrent forums); see also Moses H. Cone Meml Hosp. 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. They also refer to a strain of thinking about the act of state doctrine. Close Whether recognition is necessary or sufficient to entitle a foreign government to immunity under the FSIA is more complicated. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (That international law does not require application of the [act of state] doctrine is evidenced by the practice of nations.). See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. Donald Trump pleaded not guilty Tuesday to 34 felony counts of falsifying business records related to his alleged role in Close Childress, supra note 20, at 34. Id. 9 Close Hubers De Conflictu Legum set forth three maxims to address the problem of foreign rights in a world of exclusive territorial sovereignty: (1) The laws of each state have force within the limits of that government and bind all subject to it, but not beyond. Id. . Oetjen v. Cent. 134 370 See, e.g., Royal & Sun All. 155 Thus, sovereign party comity operates in American law both as a principle of recognition and as a principle of restraint. In a majority of states, these rules are codified for money judgments in two uniform acts. Close 1782(a) (2012) (The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. As Curtis Bradley notes, [s]ome forms of deference may be more defensible than others. 80 The desirability of executive discretion over questions of international comity is not just a myth, it is a dangerous myth. 118 , 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.. See WestlawNext, http://westlawnext.com (last visited Sept. 25, 2015) (in All State & Federal, search: (comity /s absolute obligation) (recognition /s within its territory /s acts of another nation) (due regard /s international duty /s rights of its own citizens) and Hilton). 6 Aprile 2023; did megan boone and james spader get along; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). As a Principle of Recognition. 2d 424, 43848 (S.D.N.Y. 365 Id. (noting Canadas State Immunity Act has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad); see also William S. Dodge, Is Torture an Official Act? . Sitting heads of state, heads of government, and foreign ministers are entitled to status-based immunity from suits based on any actofficial or unofficialbut only while they hold those offices. 7. 2014) (International comity is a doctrine of prudential abstention. 267 Close The border between the two has shifted over time. Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 304 3227, 500 U.N.T.S.
324 Close Comity also gave the states of the Union some roomthough in the end not enoughto manage the issue of slavery. 46 343 This Article proceeds in four parts. Id. 125 Mujica v. Airscan Inc., 771 F.3d 580, 609 (9th Cir. There is also nothing inappropriate about having doctrines of status-based foreign official immunitylike diplomatic immunity and head-of-state immunityturn on the Presidents recognition of a foreign officials status. at 6471 (discussing conduct-based immunity). Close Close 206 133 Hilton v. Guyot, 159 U.S. 113, 16364 (1895). 106 203 See W.S. 153 . See Emory v. Grenough, 3 U.S. (3 Dall.) It is also important to note that some of the international comity doctrines rest partly on comity and partly on other bases. See 28 U.S.C. The Supreme Court has left open the question of whether the executive branch is entitled to deference in affording immunity to particular defendants in cases governed by the FSIA. For an excellent discussion of comity and slavery, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 4 (1981) (Such comity. 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. MEMBERSHIP: The NTA welcomes to its membership, for mutual discussion and deliberation, all who may be interested in taxation and public finance. In Empagran, the Supreme Court invoked not the presumption against extraterritoriality but a principle of constru[ing] ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations, 2007) (equating deference suggested in Sosa with prudential justiciability doctrine known as the political question doctrine (internal quotation marks omitted)). To understand the role of international comity in American law today, one must have some idea of where it came from and how it developed. 15 206 Close 29 This Article is limited to doctrines of international comity applied by U.S. courts. Close Close
129 Id. 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. Close 286 Close . 194 191 which others have classified among the comity doctrines.
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