This discretionary aspect of international comity has been responsible for much of the criticism that the doctrine has attracted over the years. . Other foreign officials, as well as former foreign officials, may be entitled to conduct-based immunity. 95 306 Rep. 141, 141; 1 Black W. 257, 258 (K.B.) 176 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting recognized foreign governments not at war with United States may bring suit in U.S. courts). Close requires that, in the process of deciding [cases], the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.). 2013). Although Chief Justice Marshall did not use the word comity, Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade later that the doctrine expounded in that case stands upon principles of public comity and convenience. . Sovereign party comity is deference to foreign government actors as litigants in U.S. courts. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). When push comes to shove, the domestic forum is rarely unseated. But in the first half of the twentieth century, this territorial approach gave way to the more flexible framework of International Shoe Co. v. Washington, which required only certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. .); Answers in Genesis of Ky., Inc. v. Creation Ministries Intl, Ltd., 556 F.3d 459, 467 (6th Cir. . 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. 14mc00190 (JSR), 2014 WL 3893953, at *1 (S.D.N.Y. Hilton is also fundamentally ambiguous about whether comity binds U.S. courts and, if so, whether it binds them as a matter of international or domestic law. WebThe 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 Close Tr. .). Close 401 Close 408 85 Some authors have used the phrase adjudicatory comity. See Calamita, supra note 37, at 615 (distinguishing adjudicatory comity from prescriptive comity); Childress, supra note 20, at 16 (stating adjudicatory comity is perhaps the most robust use of the comity doctrine in transnational litigation). . Furthermore, prescriptive comity is exercised by courts. For a country to treat a defendant according to its own notions rather than those of the place where he did the acts, Justice Holmes wrote, not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. 237 Leather Co., 246 U.S. 297, 30304 (1918). 107 24 Close (2) All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof. v. Chisholm, 268 U.S. 29, 32 (1925) (referring to comity of nations while interpreting Federal Employers Liability Act (quoting American Banana, 213 U.S. at 356)). 294 198, 20102 (N.Y. 1918) (Cardozo, J.) Id. When an American court recognizes a foreign judgment, it restrains the exercise of its own authority to decide the merits of that case. 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. 2 . WebTRUE 6.International comity connotes courtesy between nations. But the Court has recently relied expressly on international comity to support limits on general jurisdiction. Close and counterclaims. See Flomo v. Firestone Nat. In any event, that is certainly how the doctrine of comity developed in England and the United States. 343 , so long as its refusal to give it effect is not arbitrary according to the rules of the conflict of laws of states that have reasonably developed legal systems.). 6 de C.V., 701 F.3d 1031, 1053 (5th Cir. Close 162 There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. 214 15.300.380 (codifying choice of law for contracts); id. 293 The Supreme Court had applied a strictly territorial approach to personal jurisdiction in Pennoyer v. Neff. 146 Close By contrast, the geographic scope of state statutes (subject to any constitutional or international law limits) is a question of state law. 59 . (quoting Verlinden, 461 U.S. at 486)). 71 ([T]he doctrine of immunity for foreign sovereigns[] has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.); see also Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (Foreign sovereign immunity is and always has been, a matter of grace and comity . Close 349 Close B. The discussion below will note when a doctrine rests on more than one rationale. 318 Each of the international comity doctrines may be placed in one of the resulting boxes. 319 See D.J. The result is the first comprehensive account of international comity applied by U.S. courts. 121, 123 (N.Y. 1926) (concluding state court is not bound to follow the Hilton Case). 200 230 The Supreme Courts decision in Empagran employed prescriptive comity in the same sense, as a means to avoid unreasonable interference with the sovereign authority of other nations. .). 13 1838) (No. 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 Socit Nationale Industrielle Arospatiale v. U.S. Dist. 35 236 244 See Jurisdictional Immunities of the State (Ger. To say that the presumption applies in all cases is not to say that U.S. statutes apply only to conduct in the United States. 260 Although six Justices rejected the Bernstein exception in First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972), they did so in three separate opinions, none of which commanded a majority of the Court. This not only led American courts to use comity in new ways but also shifted the dominant rationale for comity from private interests in convenience to public interests in sovereignty and fostering friendly relations. Co., 517 U.S. 706, 723 (1996). at 120506 (discussing example of litigation against China by Chinese victims of state repression). was indispensable in a union of states, for if states refused to recognize and enforce each others laws, interstate relations would collapse and the Union would founder.). Corp. v. M.V. 1981) ([W]hen enforcement has promised to further, rather than violate, the policy aims of the United States, our courts have given extraterritorial effect to foreign expropriations.); Republic of Iraq v. First Natl City Bank, 353 F.2d 47, 51 (2d Cir. Close 6a, 45(a)(3) (2012) (limiting geographic scope of Sherman Act and Federal Trade Commission Act). 959) (Washington, J. 371 International comity c. Sovereign party comity operates as a principle of restraint in American law through the doctrines of foreign state immunity and foreign official immunity, both of which fall under the more general heading of foreign sovereign immunity. Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. 129 Close Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 342 EEOC v. Arabian Am. 549 F.2d at 613. 232 As a Principle of Recognition. 255 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. 75 See Harlan Grant Cohen, Formalism and Distrust: Foreign Affairs Law in the Roberts Court, 83 Geo. Although the Restatement (Second) adopts a most significant relationship standard, 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. Where point (a) of Article 7(2) applies, the income to be included in the tax base of the taxpayer shall be calculated in Although the Third Restatement took the position that such interest balancing was required by customary international law, Close See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 222, cmt. Dairy Bd., 942 F. Supp. 283, 353 (1822). On almost identical facts, however, the Third Circuit rejected abstention. 168 For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. This comity, Story emphasized, was not the comity of the courts, but the comity of the nation. 244 The en banc court did not reach the question of prudential exhaustion. 16 . See W.S. See, e.g., Morrison v. Natl Austl. 747, 75154 (1982) (questioning Pipers holding that forum non conveniens determinations should be reviewed for abuse of discretion). 1971) (articulating standard for torts); id. and international comity abstention, 313 This Article aims to support the role of international comity in U.S. foreign relations law by providing a proper definition and analytic framework and by freeing international comity from some of the myths that have surrounded it. The modern presumption against extraterritoriality, for example, has two rationales: (1) [i]t serves to protect against unintended clashes between our laws and those of other nations which could result in international discord; 63 Close But under the modern view of customary international lawa general and consistent practice of states followed by them from a sense of legal obligation 242 See 28 U.S.C. Close Ins. American law is full of international comity doctrines. 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. In fact, Justice Story meant nothing of the kind. In the context of sovereign party comity, by contrast, recognition may preclude restraint. 5. What distinguishes the doctrines in this section is that they manifest comity to foreign courts, whether by recognizing those courts judgments or by restraining the jurisdiction of U.S. courts. 189 198 Michael Ramsey has argued that because the phrase international comity adds nothingand obscures muchin judicial discourse, it should be abandoned. . . They recognize the judgments of foreign courts and limit the jurisdiction of American courts. 112 These international comity doctrines operate to recognize foreign law and to restrain the reach of American law. 56 
68 Whether recognition is necessary or sufficient to entitle a foreign government to immunity under the FSIA is more complicated. 79 See infra Part III (explaining differences between international comity and international law). 247 187 1782 permits federal courts to grant discovery within the United States for use in foreign proceedings.). 1 (K.B. 175 U.S. 677, 694 (1900); see also Crawford, supra note 24, at 24 ([P]articular rules of comity, maintained consistently without reservation, may develop into rules of customary law.). is a myth. In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 222 cmt. 
264 329 but they come down firmly on the side of case-specific deference to the executive branch. . Morrison v. Natl Austl. 120 Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). Close Because the securities in Morrison had been purchased on a foreign stock exchange, the Court held that plaintiffs failed to state a claim under section 10(b). Rules may also be more easily gamed, and courts may therefore prefer standards that allow them to police abusive litigation tactics. U.S. courts have also looked to comity when considering whether to enjoin parallel proceedings in a foreign court. Wash. L. Rev. 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. See supra notes 198203 and accompanying text (discussing foreign state compulsion). 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