Close Close, Sometimes, U.S. courts are asked to address the possibility of parallel foreign proceedings not by dismissing the U.S. suit but by enjoining the foreign proceeding. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comityfrom the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign governments privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Close Close Having focused in Part II on how the principle of international comity is incorporated in U.S. domestic law, this Article now turns in Part III to consider comitys relationship with international law. With the increased use of comity as a principle of restraint, however, more public rationales like respect for foreign sovereignty and the fostering of friendly relations took over. .). of Iowa, 482 U.S. 522, 54142 (1987). 665, 678 (La. 380 12 Me. . But see Joel R. Paul, The Transformation of International Comity, Law & Contemp. 38 U.S. (13 Pet.) But the appropriateness of having the President make the status determination on which the doctrines turn does not depend on whether the doctrines are ones of comity or of international law. as well as a discretionary statute authorizing judicial assistance to foreign tribunals. Restatement (Third) of the Foreign Relations Law of the United States 401(a) (Am. 1979) (listing factors to determine extraterritorial jurisdiction); Timberlane Lumber Co. v. Bank of Am., 549 F.2d 597, 614 (9th Cir. Close, But it is only when adjudicative comity is used as a principle of restraint that standards clearly predominate over rules. 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. 10, art. Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. 384 See 11 U.S. (7 Cranch) 116, 147 (1812) (Marshall, C.J.) may benefit from sovereign immunity when they are sued. Close Apr. 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 supra notes 177178 and accompanying text (explaining public policy exception in conflict of laws). to violate the law of the foreign country in which such workplace is located. Close 389 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). Section 2(b) of the Torture Victim Protection Act imposes an exhaustion requirement by statute for human rights claims brought under that act. American courts generally apply the same choice-of-law rules in interstate and international cases. Close Close 283, 353 (1822) (characterizing foreign sovereign immunity as resting on principles of public comity and convenience). 339 Close S.A., 250 F.3d 510, 518 (7th Cir. Daimler allows for general jurisdiction over a corporation at some other place only in an exceptional case. Id. 186 Close 1987) (This section states the principle of reasonableness as a rule of international law.). 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.). 
International comity, on the other hand, does not bind the United States on the international plane or give rise to international responsibility. 329 Kirkpatrick & Co. v. Envtl. See id. 155 Loucks v. Standard Oil Co. of N.Y., 120 N.E. Close Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as singular specimen of confusion of thought produced by laxity of language). (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). 161 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 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. Only a few international comity doctrines clearly constitute federal law binding on state courts, including foreign sovereign immunity, due process limitations on personal jurisdiction, and the act of state doctrine. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. at 168. 282 This possibility of interference arises when an interested person, rather than the foreign court itself, seeks discovery. 327 Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) ([G]overnments recognized by the United States and at peace with us are entitled to access to our courts. 329 Intl L.J. 75 99 Close Practice in International Law 1017 (1977). 213, 254 (acknowledging Courts holding in Samantar that federal common law now controls these issues). 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. Id. Close Erie R.R. Uniformity rule in taxation 4. 1999) ([I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.). 2934, 2012 O.J. In a few states, conflicts rules are codified by statute, 176 357 213 80 213 U.S. 347 (1909). Prior to American Banana, the presumption against extraterritoriality was thought to rest on international law, and was simply an application of the Charming Betsy canon. The desirability of executive discretion over questions of international comity is not just a myth, it is a dangerous myth. 121, 123 (N.Y. 1926) (concluding state court is not bound to follow the Hilton Case). Professor of Law, University of California, Davis, School of Law. 158 Paramedics Electromedicina Comercial, Ltda. Close See Crawford, supra note 24, at 157 (noting while some countries allow recognized governments to sue in local courts, great caution is needed in using municipal cases to establish propositions about recognition in general international law). Close. But Posner and Sunstein elide some key distinctions between Chevron deference and case-specific deference and fail to respond to the two main normative arguments against a case-specific role for the executive branch in administering the doctrines of international comity. The Executives action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, the Court noted. 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. See, e.g., Pounders v. Enserch E & C, Inc., 306 P.3d 9, 1117 (Ariz. 2013) (applying Arizona choice-of-law rules to determine New Mexico law governed tort action). See Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. 94 266 11 238 Close 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. . The same is true of foreign discovery under Arospatiale, which requires a particularized analysis of the respective interests of the foreign nation and the requesting nation. 1782, Congress authorized district courts to order discovery for use in a proceeding in a foreign or international tribunal. 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. See Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (noting foreign sovereign immunity is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns); 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. 335 See 1 L. Oppenheim, International Law: A Treatise 147, at 196 (1905) (Many States claim jurisdiction and threaten punishments for certain acts committed by a foreigner in foreign countries.); John B. Moore, Report on Extraterritorial Crime (1887), reprinted in 2 John Bassett Moore, A Digest of International Law 202, at 244 (1906) (The principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries.). 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. See U.S. Const. 335 339 See, e.g., Or. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. 400 Close Mfg. No one would assert that the executive branch, rather than a court, should decide whether a foreign judgment should be recognized or whether a particular case should be dismissed on grounds of forum non conveniens. towards greater consideration of private interests. 
101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). Close As Part III explains, international comity is not just distinct from international lawit is deference to foreign government actors that is not required by international law. 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 773 (Powell, J., concurring) (I would be uncomfortable with a doctrine which would require the judiciary to receive the Executives permission before invoking its jurisdiction.); id. which requires a showing of exceptional circumstances after consideration of several factors. 195 Close . Close 48 Other exceptions are called discretionary. 15 164, 167 (1870) (allowing foreign sovereign to bring suit in U.S. courts because [t]o deny him this privilege would manifest a want of comity and friendly feeling). 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 . 1350 (2012). Close answer True alternatives T Question 15 20 seconds Q. See Klaxon Co. v. Stentor Elec. 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). Close 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. See supra note 224 (discussing 28 U.S.C. is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns.); The Santissima Trinidad, 20 U.S. (7 Wheat.) Co. of Can. 268 For further examples of criticism of comity, see infra notes 317321 and accompanying text. Close. Close Close, International comity has even influenced some of the Supreme Courts rulings on personal jurisdiction under the Due Process Clause. 21 Id. 103 Even when adjudicative comity operates as a principle of restraintthe area in which international comity doctrines like forum non conveniens most frequently take the form of standardsmore rule-like alternatives exist. The discretion not to recognize foreign rights was captured in the word comity. L. Rev. 237, 260 (2010). Close See GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1034 (11th Cir. Close In Arospatiale, Justice Blackmun argued in favor of a rule requiring first resort to the procedures of the Hague Evidence Convention, noting that nothing inherent in the comity principle. WebThe doctrine of international comity has been described variously "as a choice-of-law principle, a synonym for private international law, a rule of public international law, a at 857 ([C]ustomary international law may impose an exhaustion requirement that limits plaintiffs ability to bring [expropriation] claim outside the country against which they bring suit.); Sarei, 550 F.3d at 82930 (en banc) (plurality opinion) (McKeown, J.) 6 But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. Close, The FSIA did not codify the immunities of foreign officials. 6. 38, at 42. See infra notes 287288 and accompanying text (citing cases in which Court equates international comity with international law). 207 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. 359 Am. Close Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 373 Close, Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. 4(c)(2)(8). J. Intl L. 351, 352 (2010) (For most of U.S. history, the Supreme Court determined the reach of federal statutes in the light of international lawspecifically, the international law of legislative jurisdiction.). But the courts are free to draw for themselves its legal consequences in litigations pending before them. 22 Close Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. 2d 451, 458 (S.D.N.Y. . JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. at 138. Huber, supra note 74, at 165. Like Huber, Story justified comity on the basis of mutual convenience and utility. 393 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). See Story, supra note 54, 38, at 42 (In the silence of any positive rule,. 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. Another common exercise of executive branch authority is for an agency to interpret a statute it administers. 8 137 But Marshall emphasized that the territorial sovereign was capable of destroying this implication and of subjecting such vessels to the ordinary tribunals. International law binds the United States and gives rise to international responsibility. U.S. courts exercise adjudicative comity as a principle of recognition when they give effect to foreign judgments. 365 Taxation is inherent in sovereignty. In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control. What changes is the time at which that question is askedbefore a suit is filed in foreign court, while it is pending, or after the foreign court has rendered judgment. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 reporters note 11 (Am. 95. 2009) (While these bases have been characterized as exorbitant or extraordinary, they have, thus far, not been asserted, on authoritative grounds, to be violative of international law.); Clermont & Palmer, supra note 308, at 476 ([E]xorbitant jurisdiction is best understood less as an existing rule than as a normative statement about the appropriate scope of international jurisdiction.). 215 The act of state doctrine applies only to the public acts [of] a recognized foreign sovereign power, 351 336 See, e.g., id. lower courts adopting section 403 have generally characterized it as an exercise of comity. For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. Id. There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. and the Vienna Convention on Consular Relations. 13 . 371 In a sense, all of these doctrines defer to the executive branch. Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. 33 See id. But whatever particular form a doctrine takes, it is a courts obligation to apply its requirements faithfully rather than treating international comity as a blank check for discretion, either by the court or by the executive branch. 386 Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating international comity and international law interchangeably); W.S. depends upon what our greatest jurists have been content to call the comity of nations). 375 1987). . Justice Scalia has also retreated from the balancing approach he advocated in Hartford. Due process of law 2. 412 Close 1987) ([T]here are no agreed principles governing recognition and enforcement of foreign judgments, except that no state recognizes or enforces the judgment of another state rendered without jurisdiction over the judgment debtor.). 382 Webcomparison with international law. See id. Close Close Leather Co., 246 U.S. 297, 303 (1918) (holding recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence). Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). International laws move away from strict territorial sovereignty in the early twentieth century strongly influenced the evolution of international comity in American courts. 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. Yousuf, 699 F.3d at 773. See Jurisdictional Immunities of the State (Ger. But the origin of these rules in comity is clearly seen in the widespread adoption of a public policy exception. Some of these references may be intended simply to emphasize that foreign sovereign immunity is not required by the Constitution. 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. The majority held that the concept of international comity requires. See Gross, 456 F.3d at 394 (We remain skeptical of this broad application of the international comity doctrine, noting our virtually unflagging obligation to exercise the jurisdiction granted to us. 149 Corp., 43 F.3d 65, 75 (3d Cir. 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.). Close 208 61 It turns legal decisions into political ones, undermining not only the rule of law but also the foreign policy interests of the United States. See Posner & Sunstein, supra note 33, at 1204 ([I]n cases in which the executive has adopted an interpretation via rulemaking or adjudication, or is otherwise entitled to deference under standard principles of administrative law, the executives interpretations should prevail over the comity doctrines.); see also Bradley, supra note 66, at 69194 (arguing for Chevron deference on questions of geographic scope); Zachary D. Clopton, Replacing the Presumption Against Extraterritoriality, 94 B.U. Close Close 366 See, e.g., Morrison v. Natl Austl. Is there an international duty See 28 U.S.C. See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). Inspired by a footnote in the Supreme Courts Sosa decision, 133 but they come down firmly on the side of case-specific deference to the executive branch. Echoing Huber, Story began with three maxims: (1) that every nation possesses an exclusive sovereignty and jurisdiction within its own territory; The Restatement departed from Timberlane by conceptualizing this balancing of interests not as a requirement of comity but a rule of international law. Id. The second myth challenged here is that the executive branch has greater institutional competence to apply the comity doctrines. 197 ([I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties. Hubers third maxim was different in two ways. . For another excellent discussion of deference to the Executive in foreign affairs, see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. See id. at 423; 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). Close In Robinson v. Bland, Mansfield wrote that the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. 396 Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. 178 Tr. 293 27 Close WebThe international scope of domestic regulation is usually determined by looking closely at the principles of public international law and comity. Close See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. 1782(a) (2012) (providing district court may order a person to provide evidence to foreign or international tribunals). On appeal from the district courts decision upon remand, the Seventh Circuit clarified that exhaustion was required not as a substantive requirement of the international law on expropriation but as a procedural limitation on where international law claims could be brought. 2011) (declining to consider whether exhaustion is required under ATS), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. Law Inst. Close Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. Some rules of foreign sovereign immunity may fit that description. Historically, comity had a great deal to do with the convenience of the parties. In international judicial Encounters, 100 Va. L. Rev for use in a proceeding in a foreign or tribunals. They are sued see Story, supra note 54, 38, at (! G. Lorenzen, Hubers de Conflictu Legum, 13 Ill. L. Rev allows for general jurisdiction over corporation. Enforcement of foreign sovereign immunity as resting on principles of public comity and convenience ) what. 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The Social Hosts Salary, What Happened To Aiden On Body Of Proof, La Muse Aux 14 Toiles Courbet, Articles I
International comity, on the other hand, does not bind the United States on the international plane or give rise to international responsibility. 329 Kirkpatrick & Co. v. Envtl. See id. 155 Loucks v. Standard Oil Co. of N.Y., 120 N.E. Close Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as singular specimen of confusion of thought produced by laxity of language). (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). 161 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 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. Only a few international comity doctrines clearly constitute federal law binding on state courts, including foreign sovereign immunity, due process limitations on personal jurisdiction, and the act of state doctrine. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. at 168. 282 This possibility of interference arises when an interested person, rather than the foreign court itself, seeks discovery. 327 Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) ([G]overnments recognized by the United States and at peace with us are entitled to access to our courts. 329 Intl L.J. 75 99 Close Practice in International Law 1017 (1977). 213, 254 (acknowledging Courts holding in Samantar that federal common law now controls these issues). 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. Id. Close Erie R.R. Uniformity rule in taxation 4. 1999) ([I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.). 2934, 2012 O.J. In a few states, conflicts rules are codified by statute, 176 357 213 80 213 U.S. 347 (1909). Prior to American Banana, the presumption against extraterritoriality was thought to rest on international law, and was simply an application of the Charming Betsy canon. The desirability of executive discretion over questions of international comity is not just a myth, it is a dangerous myth. 121, 123 (N.Y. 1926) (concluding state court is not bound to follow the Hilton Case). Professor of Law, University of California, Davis, School of Law. 158 Paramedics Electromedicina Comercial, Ltda. Close See Crawford, supra note 24, at 157 (noting while some countries allow recognized governments to sue in local courts, great caution is needed in using municipal cases to establish propositions about recognition in general international law). Close. But Posner and Sunstein elide some key distinctions between Chevron deference and case-specific deference and fail to respond to the two main normative arguments against a case-specific role for the executive branch in administering the doctrines of international comity. The Executives action in recognizing a foreign government and in receiving its diplomatic representatives is conclusive on all domestic courts, the Court noted. 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. See, e.g., Pounders v. Enserch E & C, Inc., 306 P.3d 9, 1117 (Ariz. 2013) (applying Arizona choice-of-law rules to determine New Mexico law governed tort action). See Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. 94 266 11 238 Close 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. . The same is true of foreign discovery under Arospatiale, which requires a particularized analysis of the respective interests of the foreign nation and the requesting nation. 1782, Congress authorized district courts to order discovery for use in a proceeding in a foreign or international tribunal. 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. See Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003) (noting foreign sovereign immunity is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns); 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. 335 See 1 L. Oppenheim, International Law: A Treatise 147, at 196 (1905) (Many States claim jurisdiction and threaten punishments for certain acts committed by a foreigner in foreign countries.); John B. Moore, Report on Extraterritorial Crime (1887), reprinted in 2 John Bassett Moore, A Digest of International Law 202, at 244 (1906) (The principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries.). 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. See U.S. Const. 335 339 See, e.g., Or. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. 400 Close Mfg. No one would assert that the executive branch, rather than a court, should decide whether a foreign judgment should be recognized or whether a particular case should be dismissed on grounds of forum non conveniens. towards greater consideration of private interests. 101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). Close As Part III explains, international comity is not just distinct from international lawit is deference to foreign government actors that is not required by international law. 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 773 (Powell, J., concurring) (I would be uncomfortable with a doctrine which would require the judiciary to receive the Executives permission before invoking its jurisdiction.); id. which requires a showing of exceptional circumstances after consideration of several factors. 195 Close . Close 48 Other exceptions are called discretionary. 15 164, 167 (1870) (allowing foreign sovereign to bring suit in U.S. courts because [t]o deny him this privilege would manifest a want of comity and friendly feeling). 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 . 1350 (2012). Close answer True alternatives T Question 15 20 seconds Q. See Klaxon Co. v. Stentor Elec. 482 U.S. at 554 (Blackmun, J., concurring in part and dissenting in part). Close 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. See supra note 224 (discussing 28 U.S.C. is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns.); The Santissima Trinidad, 20 U.S. (7 Wheat.) Co. of Can. 268 For further examples of criticism of comity, see infra notes 317321 and accompanying text. Close. Close Close, International comity has even influenced some of the Supreme Courts rulings on personal jurisdiction under the Due Process Clause. 21 Id. 103 Even when adjudicative comity operates as a principle of restraintthe area in which international comity doctrines like forum non conveniens most frequently take the form of standardsmore rule-like alternatives exist. The discretion not to recognize foreign rights was captured in the word comity. L. Rev. 237, 260 (2010). Close See GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1034 (11th Cir. Close In Arospatiale, Justice Blackmun argued in favor of a rule requiring first resort to the procedures of the Hague Evidence Convention, noting that nothing inherent in the comity principle. WebThe doctrine of international comity has been described variously "as a choice-of-law principle, a synonym for private international law, a rule of public international law, a at 857 ([C]ustomary international law may impose an exhaustion requirement that limits plaintiffs ability to bring [expropriation] claim outside the country against which they bring suit.); Sarei, 550 F.3d at 82930 (en banc) (plurality opinion) (McKeown, J.) 6 But see Lewis S. Yelin, Head of State Immunity as Sole Executive Lawmaking, 44 Vand. Close, The FSIA did not codify the immunities of foreign officials. 6. 38, at 42. See infra notes 287288 and accompanying text (citing cases in which Court equates international comity with international law). 207 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. 359 Am. Close Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 373 Close, Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. 4(c)(2)(8). J. Intl L. 351, 352 (2010) (For most of U.S. history, the Supreme Court determined the reach of federal statutes in the light of international lawspecifically, the international law of legislative jurisdiction.). But the courts are free to draw for themselves its legal consequences in litigations pending before them. 22 Close Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. 2d 451, 458 (S.D.N.Y. . JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. at 138. Huber, supra note 74, at 165. Like Huber, Story justified comity on the basis of mutual convenience and utility. 393 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). See Story, supra note 54, 38, at 42 (In the silence of any positive rule,. 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. Another common exercise of executive branch authority is for an agency to interpret a statute it administers. 8 137 But Marshall emphasized that the territorial sovereign was capable of destroying this implication and of subjecting such vessels to the ordinary tribunals. International law binds the United States and gives rise to international responsibility. U.S. courts exercise adjudicative comity as a principle of recognition when they give effect to foreign judgments. 365 Taxation is inherent in sovereignty. In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control. What changes is the time at which that question is askedbefore a suit is filed in foreign court, while it is pending, or after the foreign court has rendered judgment. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 reporters note 11 (Am. 95. 2009) (While these bases have been characterized as exorbitant or extraordinary, they have, thus far, not been asserted, on authoritative grounds, to be violative of international law.); Clermont & Palmer, supra note 308, at 476 ([E]xorbitant jurisdiction is best understood less as an existing rule than as a normative statement about the appropriate scope of international jurisdiction.). 215 The act of state doctrine applies only to the public acts [of] a recognized foreign sovereign power, 351 336 See, e.g., id. lower courts adopting section 403 have generally characterized it as an exercise of comity. For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. Id. There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. and the Vienna Convention on Consular Relations. 13 . 371 In a sense, all of these doctrines defer to the executive branch. Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. 33 See id. But whatever particular form a doctrine takes, it is a courts obligation to apply its requirements faithfully rather than treating international comity as a blank check for discretion, either by the court or by the executive branch. 386 Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating international comity and international law interchangeably); W.S. depends upon what our greatest jurists have been content to call the comity of nations). 375 1987). . Justice Scalia has also retreated from the balancing approach he advocated in Hartford. Due process of law 2. 412 Close 1987) ([T]here are no agreed principles governing recognition and enforcement of foreign judgments, except that no state recognizes or enforces the judgment of another state rendered without jurisdiction over the judgment debtor.). 382 Webcomparison with international law. See id. Close Close Leather Co., 246 U.S. 297, 303 (1918) (holding recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence). Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). International laws move away from strict territorial sovereignty in the early twentieth century strongly influenced the evolution of international comity in American courts. 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. Yousuf, 699 F.3d at 773. See Jurisdictional Immunities of the State (Ger. But the origin of these rules in comity is clearly seen in the widespread adoption of a public policy exception. Some of these references may be intended simply to emphasize that foreign sovereign immunity is not required by the Constitution. 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. The majority held that the concept of international comity requires. See Gross, 456 F.3d at 394 (We remain skeptical of this broad application of the international comity doctrine, noting our virtually unflagging obligation to exercise the jurisdiction granted to us. 149 Corp., 43 F.3d 65, 75 (3d Cir. 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.). Close 208 61 It turns legal decisions into political ones, undermining not only the rule of law but also the foreign policy interests of the United States. See Posner & Sunstein, supra note 33, at 1204 ([I]n cases in which the executive has adopted an interpretation via rulemaking or adjudication, or is otherwise entitled to deference under standard principles of administrative law, the executives interpretations should prevail over the comity doctrines.); see also Bradley, supra note 66, at 69194 (arguing for Chevron deference on questions of geographic scope); Zachary D. Clopton, Replacing the Presumption Against Extraterritoriality, 94 B.U. Close Close 366 See, e.g., Morrison v. Natl Austl. Is there an international duty See 28 U.S.C. See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). Inspired by a footnote in the Supreme Courts Sosa decision, 133 but they come down firmly on the side of case-specific deference to the executive branch. Echoing Huber, Story began with three maxims: (1) that every nation possesses an exclusive sovereignty and jurisdiction within its own territory; The Restatement departed from Timberlane by conceptualizing this balancing of interests not as a requirement of comity but a rule of international law. Id. The second myth challenged here is that the executive branch has greater institutional competence to apply the comity doctrines. 197 ([I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties. Hubers third maxim was different in two ways. . For another excellent discussion of deference to the Executive in foreign affairs, see Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 Va. L. Rev. See id. at 423; 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). Close In Robinson v. Bland, Mansfield wrote that the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. 396 Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. 178 Tr. 293 27 Close WebThe international scope of domestic regulation is usually determined by looking closely at the principles of public international law and comity. Close See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. 1782(a) (2012) (providing district court may order a person to provide evidence to foreign or international tribunals). On appeal from the district courts decision upon remand, the Seventh Circuit clarified that exhaustion was required not as a substantive requirement of the international law on expropriation but as a procedural limitation on where international law claims could be brought. 2011) (declining to consider whether exhaustion is required under ATS), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. Law Inst. Close Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. Some rules of foreign sovereign immunity may fit that description. Historically, comity had a great deal to do with the convenience of the parties. In international judicial Encounters, 100 Va. L. Rev for use in a proceeding in a foreign or tribunals. They are sued see Story, supra note 54, 38, at (! G. Lorenzen, Hubers de Conflictu Legum, 13 Ill. L. Rev allows for general jurisdiction over corporation. Enforcement of foreign sovereign immunity as resting on principles of public comity and convenience ) what. 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