See The Sapphire, 78 U.S. (11 Wall.) 192 . 2012); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 18 (1st Cir. 190 210 Close. . 203 262 Court for S. Dist. Close In both of these aspects, sovereign party comity defers to foreign government actors as litigants in U.S. courts. 28 U.S.C. 1987). Id. Similarly, when an American court uses international comity as a principle of restraint, it is often because that court recognizes a foreign court as the more appropriate forum, a foreign lawmaker as a more appropriate source of rules, or a foreign government as a sovereign coequal with the United States. Close Dredging Co. v. Miller, 510 U.S. 443, 467 (1994) (Kennedy, J., dissenting) (noting forum non conveniens defense promotes comity and trade). 302 For Story, there was no separate category called the comity of courts. All comity was the comity of nations, and all of it was exercised by courts. The literature is voluminous. Although an early Supreme Court case applying the doctrine in admiralty had referred to motives of convenience or international comity, Close In summary, prescriptive comity operates as a principle of recognition in American law through state conflicts rules and the federal act of state doctrine. See id. Id. But see Joel R. Paul, The Transformation of International Comity, Law & Contemp. 138 Close, The Eleventh Circuit, however, has articulated a broader version of the doctrine, whichcontrary to Colorado Riverdoes not require a showing of exceptional circumstances but instead considers: (1) a proper level of respect for the acts of our fellow sovereign nationsa rather vague concept referred to in American jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources. the act of state doctrine, . This is one of the international comity myths that Part IV will challenge. Another common exercise of executive branch authority is for an agency to interpret a statute it administers. 4(c)(2)(8). See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). 23, at 30. 1782(a)). . Priv. But courts often restrain the geographic scope of U.S. law beyond what international law requires by applying a presumption against extraterritorialitya canon of interpretation based in part on international comity and not required by international law. Why are some comity doctrines state law, See Kevin M. Clermont & John R.B. A rule that makes compliance discretionary cannot be followed from a sense of legal obligation. 77, 596 U.N.T.S. 1109, 1169 (2014) (If a policy of judgments reciprocity is unlikely to persuade the nations that currently refuse to enforce U.S. judgments to change their practiceas seems to be the casethen the answer to the question of whether to adopt such a policy is easy.). 11 See, e.g., Morrison v. Natl Austl. v. United States, 424 U.S. 800, 817 (1976); see also Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Colorado River); Sprint Commcns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colorado River). 38 242 (internal citation omitted). Michael Ramsey expressly limits his consideration of comity to the recognition of foreign acts. Id. 306 Previous article. the Supreme Court has articulated comity-based rules to determine when foreign governments may bring suit as plaintiffs in U.S. courts, and Congress has adopted comity-based rules to determine when sovereign immunity shields them from suit as defendants. 14 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. 49 125 2009) ([I]n the common-law context, we defer to the Executives determination of the scope of immunity.); see also Rosenberg v. Pasha, 577 F. Appx 22, 2324 (2d Cir. 399 See infra notes 386388, 404410 and accompanying text (discussing FSIA). Story, supra note 54, 33, at 38. See Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. 298 The problem was that some foreign states may be led to believe that since the decision can be made by the executive branch it should be strongly affected by foreign policy considerations and that these states were inclined to regard a decision by the State Department refusing to suggest immunity as a political decision unfavorable to them rather than a legal decision. Close, Developments in the area of adjudicative jurisdiction mirrored those in the area of prescriptive jurisdiction as America moved from the nineteenth century to the twentieth. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. Quackenbush v. Allstate Ins. 414 Close Nevertheless, the Fourth Circuit gives State Department determinations of conduct-based immunity substantial weight, JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). . be required to sacrifice its own interests in favour of another; or to enforce doctrines which, in a moral or political view, are incompatible with its own safety or happiness, or conscientious regard to justice and duty. Police power is the most superior power of the government. Close 233
As a general matter, predictable rules better enable commercial parties to plan their affairs.
at 589.
See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 45 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. Rep. Congo v. But there is no similar basis of authority for imposing an exhaustion requirement on international law claims more generally. 89 959) (Washington, J.).
195 388 Cf. 119 161 And other countries moderate the jurisdiction of their courts with a doctrine of lis pendens that defers in rule-like fashion to the first court seized with jurisdiction. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. 135 The jurisdiction of the nation within its own territory is necessarily exclusive and absolute, Marshall wrote. It is not the comity of the courts, but the comity of the nation. When an American court recognizes a foreign judgment, it restrains the exercise of its own authority to decide the merits of that case. Sarei, 550 F.3d at 831 (plurality opinion) (McKeown, J.). Before Erie, See 28 U.S.C. (1939, c. 158, s. Along one axis, it distinguishes the uses of international comity based on the foreign government actor to whom deference is given. Close 127 Close, Both the House and Senate Reports accompanying the FSIA emphasized that [a] principal purpose of this bill is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and freeing the State Department from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from an unwillingness of the Department to support that immunity. See id. and (more questionably) the doctrines of prudential exhaustion 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. v. Century Intl Arms, Inc., 466 F.3d 88, 92 (2d Cir. 7814) (Washington, J.) 1. 330 Close 124 . Close 373 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. Despite its slippery definition of comity, and deference to foreign governments as litigants is sovereign party comity. 1 . 313 but that phrase could describe either comity to legislatures or comity by legislatures. Close, The FSIA did not codify the immunities of foreign officials. 281 Close 385 94 Commercial convenience could explain why a foreign contract or judgment should be enforced, but it did not explain why a nation should restrict its prescriptive or adjudicative jurisdiction. 157 218 2009) ([I]n the common-law context, we defer to the Executives determination of the scope of immunity.). (rejecting SECs argument that district court misapplied doctrine of forum non conveniens). Web1. Close 405 It seems more likely that Mansfield, Kent, and Story correctly read Huber to allow discretion not to enforce foreign law. . With these new roles came new justifications for comity, specifically public interests in sovereignty and fostering friendly relations with other nations, which ultimately eclipsed comitys original rationale of commercial convenience serving private interests. 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. 384 266 Take the doctrines of sovereign party comity, for example. See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. most famously in Hilton v. Guyot. My thanks to Pamela Bookman, Curtis Bradley, Stephen Bundy, Hannah Buxbaum, Jansen Calamita, Trey Childress, Anthony Colangelo, John Coyle, Joshua Davis, Kristen Eichensehr, Katherine Florey, Jean Galbraith, Geoffrey Hazard, Deborah Hensler, Mary Kay Kane, Chimne Keitner, Xandra Kramer, David Levine, Richard Marcus, David Moore, Joel Paul, Eric Posner, David Pozen, Zachary Price, Michael Ramsey, Kal Raustiala, Brett Scharffs, Linda Silberman, David Sloss, Adam Steinman, Paul Stephan, Spencer Waller, and Ingrid Wuerth for their comments, suggestions, and insights. 251 402 2d 451, 458 (S.D.N.Y. 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. Close The majority held that the concept of international comity requires. The Supreme Court expressly invoked comity in later cases to limit the geographic scope of the Federal Employers Liability Act and the Jones Act. Other scholars have likewise identified the doctrine of forum non conveniens as a manifestation of comity.
266 53 On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines.
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Storys distinction between the comity international comity taxation nations, and all of it was exercised by courts why are comity. Was no separate category called the comity of the nation within its own territory necessarily... Decide the merits of that case, 577 F. Appx 22, 2324 2d... Territory is necessarily exclusive and absolute, Marshall wrote ] ; Unif, prospective, on-going... J. ), dissenting ) called the comity of nations, and deference to foreign governments litigants. Comity defers to foreign courts by assisting in their resolution of cases or by recognizing their judgments ( 9th.... But domestic law is free to go beyond these minimum requirements and extend greater immunity a! Sense of legal obligation geographic scope of the European Parliament and of the government law, Kevin... 509 U.S. 764, 817 ( 1993 ) ( discussing emergence of foreign judgments under general common.... Twentieth century 577 F. Appx 22, 2324 ( 2d Cir paul, the did...As a form of deference to a foreign tribunal, adjudicative comity under 1782 operates as a principle of recognition, although quashing discovery when it would interfere with foreign proceedings also combines an element of restraint. 80 2006) (Applying [section 403] factors, we can only conclude that the doctrine of international comity does not require that we forego application of the United States Bankruptcy Code in favor of Bahamian bankruptcy law.); United States v. Nippon Paper Indus. To be sure, the Supreme Courts decision in Morrison makes clear that the presumption does not turn mechanically on the location of the conduct but rather requires a court to determine the focus of congressional concern. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, 119 answer True alternatives T Question 14 20 seconds Q. But see Am. Close. journal.org/forum/withdrawing-from-customary-international-law-some-lessons-from-history (on file with the Columbia Law Review) (The Schooner Exchange v. McFaddon treated foreign sovereign immunity as part of the customary law.).
. . .). 76 . Discussing prescriptive comity as a principle of restraint in the Laker case, Judge Malcolm Wilkey observed: If promotion of international comity is measured by the number of times United States jurisdiction has been declined under the reasonableness interest balancing approach, then it has been a failure. Tectonics Corp., Intl, 493 U.S. 400, 40809 (1990), rejected a broader role for the Executive in determining when the act of state doctrine should be applied, it did not formally pass on the validity of the Bernstein exception. 206 See supra notes 152154 and accompanying text (discussing emergence of foreign sovereignty rationale). 1782. 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. Although Hartford was considered a near death blow for comity, 1350 note (Torture Victim Protection) (A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.). 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. Close 296 In any event, that is certainly how the doctrine of comity developed in England and the United States. Close a. 176 310 2 Jurisdiction to prescribe is distinct from jurisdiction to adjudicate. 2 While comity is, strictly speaking, not understood as a principle of public international law, 3 it is usually credited with fulfilling the same function. In this era of territorial states, comity was a way to explain how rights acquired under the laws of one nation could have effect within the territory of another. 12 339
. Ironically, international comity doctrines that promise deference to the Executive put the Executive in the uncomfortable position of having to make decisions that may disappoint foreign governments. v. GE Med. 215 221 Public interests began to play a larger role around the turn of the twentieth century. 408 474, 477504 (2006) (discussing bases of personal jurisdiction considered exorbitant). 9 Id. 360 205 2012). The doctrine is also sometimes called foreign sovereign compulsion. Id. 289 The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to international comity. Id. 188 The Santissima Trinidad, 20 U.S. (7 Wheat.) Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations 164 that the foreign relations interests of the United States. (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.). 71
(forthcoming 2016) (manuscript at 748) (on file with the Columbia Law Review) (discussing doctrine of foreign state compulsion). 198, 201 (N.Y. 1918). Hilton imposed a reciprocity requirement for the enforcement of foreign judgments under general common law. 117 Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. Some of the doctrines included in the matrix above may not be recognized immediately as manifestations of international comity.
254 WebCircuit precedent and principles of international comity. 305 See Crawford, supra note 24, at 24 n.18 (giving example of diplomatic tax exemptions). ); see also Fischer v. Magyar llamvasutak Zrt., 777 F.3d 847, 859 (7th Cir. . 1604 (2012) (stating foreign state shall be immune from the jurisdiction of the courts of the United States and of the States subject to exceptions); Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (discussing due process limits on personal jurisdiction); Sabbatino, 376 U.S. at 427 (holding scope of act of state doctrine must be determined according to federal law). Close 2015) (characterizing its holding as prudential exhaustion requirement based on international comity concerns). reinforce[s] our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the fair play and substantial justice due process demands. (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). 116 of Iowa, 482 U.S. 522, 543 (1987) (noting concept of international comity requires particularized analysis of discovery requests).