xs and still others preemptive federal law? 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). Law Inst. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. 115(1)(b) (That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.). 266 160 The Second Circuit has held that the Executive may waive the act of state doctrine in a particular case under the so-called Bernstein exception. (discussing exhaustion of local remedies under international law). 411 11-1479) (arguing State Department determinations of foreign official immunity are binding). [3] Taxation is limited to the territory of the State. Kirkpatrick & Co. v. Envtl. National Internal Revenue Code as of its amendment by PD 69. Achille Lauro, 937 F.2d 44, 4749 (2d Cir. 230 . 246 U.S. 297, 30304 (1918). Statement 1: It is so because the State has the supreme power to command and enforce obedience to its will from the people within its jurisdiction. If it does it, it is as a matter of comity, and not as a matter of international right. 174 102 probing study of the dynamic relationship between English royalty and American democracy. 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. Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton. See Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 Yale L.J. this deemphasis has encouraged lower courts over the past fifteen years to ignore certain legitimate sovereign interests expressed by foreign states.). In these areas it makes sense to think of an international law core and a comity penumbra. So much has been written about international comity that it would be impossible to respond to every argument in a single article. See Curtis A. Bradley & Mitu Gulati, Withdrawing from International Custom, 120 Yale L.J. Co. of N.Y. v. United States, 304 U.S. 126 (1938). Close 756, 757 (C.C.D. Close, In the area of adjudicative comity, the recognition of foreign judgments is governed in most states by two uniform acts that set forth relatively clear rules. <>stream 22. Close w3TPI2T0 BC#=C3\. Sovereign party comity is deference to foreign government actors as litigants in U.S. courts. In this respect, international comity mirrors international law, which recognizes both jurisdiction to prescribe and jurisdiction to adjudicate. Restatement (Third) of the Foreign Relations Law of the United States 401(a)(b) (Am. Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. For an excellent discussion of comity and slavery, see Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity 4 (1981) (Such comity. But the distinction should not be overstated. Close Law Inst. On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. But the Ninth Circuit in Mujica, applying its newly minted doctrine of international comity abstention, Close Intl L. 49, 5255 (1937) (discussing reception of Hubers ideas in English law). More specifically, this Article makes three contributions to understanding international comity in American law. 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. 140 Forum non conveniens is an exception that applies in certain narrow circumstances. As a principle of restraint, it shields foreign governments and foreign officials from certain kinds of suits in U.S. courts. 46 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. 5 400 Tectonics Corp., Intl, 493 U.S. 400, 404 (1990) (Scalia, J.) 194 296 2, April, 1923) The problem of international double taxation is one of the most serious ques-tions that engages the attention of econo- After the Peace of Westphalia in 1648, the world was understood to be divided into separate and independent states whose territorial sovereignty was deemed to be exclusive and absolute. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. 367 Ch. + ,.. is a concept with almost as many meanings as sovereignty.). Close Some rules of foreign sovereign immunity may fit that description. 118 2006) (applying doctrine of international comity abstention). 396 n.97 (citing Altmann). The first has long made comity an object of criticism. Kirkpatrick & Co. v. Envtl. . Shangri-La International v. CA (Case Digest. Close Comity the principle of taxation of income where it arises; a country which is a financial center, such as Great Britain, will not relin- quish taxation on the ground of residence. 369, 370 n.* (1797) (providing translation of Huber). Close. Close, Finally, in the context of litigation under the Alien Tort Statute, the Supreme Court has raised the possibility of case-specific deference to the political branches, stating that there is a strong argument that federal courts should give serious weight to the Executive Branchs view of the cases impact on foreign policy. Tariff and Customs Code as of its amendment by PD 34. 211 363 Close 235 . Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (emphasis added); see also Socit Nationale Industrielle Arospatiale v. U.S. Dist. Asahi Metal Indus. International comity . In Kirkpatrick, the Supreme Court expressly rejected a standard of embarrassment to foreign governments and instead adopted a rule requiring courts not to question the validity as a rule of decision of a foreign sovereigns official acts fully performed within its own territory. 58 319 ,.. 47252. To be sure, the executive branch has authority to determine certain facts on which some of the comity doctrines turn. 289 23 limitations on taxation. 306 at 599 (quoting In re Maxwell Commc'n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). 255 . 1215/2012 of the European Parliament and of the Council on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, 2015 O.J. Close 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. endobj Courts complain that comity has never been well-defined. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 2011) (noting deference suggested in Sosa could implicate a number of the factors identified in Baker v. Carr, a leading political question case), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. and counterclaims. Close xS**T0T0 BiU" See id. The second "is referred to as ' comity among courts' or adjudicatory comity, which 'may be viewed as a discretionary act of deference by a national court to decline to exercise jurisdiction in a case properly adjudicated in a foreign state.'" Id. In each category, deference may take the form of recognition or restraint. This Article is limited to doctrines of international comity applied by U.S. courts. In the Arospatiale case, for example, the Supreme Court had to decide whether to require first resort to the Hague Evidence Convention for the gathering of evidence abroad. x+ | See Posner & Sunstein, supra note 33, at 117980 (listing Charming Betsy canon, presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and comity in general as comity doctrines). Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 40809 (1964); see also The Sapphire, 78 U.S. (11 Wall.) Close, Confusion also surrounds the relationship between international comity and international law. JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. There are exceptions for express waivers of immunity, suits based on a commercial activity, expropriation in violation of international law, property in the United States, torts in the United States, agreements to arbitrate, and maritime liens, [T]he argument for deference to the executive is that it has more expertise than the courts in foreign relations and that the executives accountability for foreign relations is more important than the courts independence from political pressure. Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, Jurisdiction to prescribe is also distinct from jurisdiction to enforce. Close. endobj See supra notes 224227 and accompanying text (discussing 28 U.S.C. 1976) (listing elements to be weighed to determine extraterritoriality). 372 Lower courts have generally applied international law to decide if a defendant is a foreign state under the Act, Other doctrines of international comity expressly reject a reciprocity requirement. . 275 1827) (Porter, J.)) Prescriptive comity is comity to lawmakersoften legislatures, but sometimes courts or executive branch officials. With the possible exception of the last, however, none of these doctrines authorizes abstention in favor of foreign courts, and the Supreme Court has never done so except under the doctrine of forum non conveniens. Loucks v. Standard Oil Co. of N.Y., 120 N.E. As a general matter, [d]ue process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant. The first two stated the territorial view of sovereignty in the strongest terms and permitted no discretion on the part of the sovereign, which could not regulate extraterritorially even to promote its most compelling interests. 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. 208 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). International law is distinct from international comity, which comprises legally nonbinding practices adopted by states for reasons of courtesy (e.g., the saluting of the flags of foreign warships at sea). 411 . xs But it is critical to emphasize that Chevron deference is deference to the interpretation of a statute to be applied across a whole range of cases, and not deference with respect to how any particular case should be resolved. 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. See Hilton v. Guyot, 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. A court has no discretion to decide on a case-by-case basis whether the purposes of foreign state immunity would be served by its application. Close Close Dredging Co. v. Miller, 510 U.S. 443, 467 (1994) (Kennedy, J., dissenting) (noting forum non conveniens defense promotes comity and trade). But reviewing the doctrines of international comity shows that many of them are more rule-like than standard-like. Indus. 2004) (holding even if Palestine met international law criteria, it should not be considered foreign state under FSIA unless recognized by United States); cf. Law Inst. v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. See infra notes 386388, 404410 and accompanying text (discussing FSIA). 191 Close. Guar. July 4, 2012 (690 Phil. In a sense, all of these doctrines defer to the executive branch. Close Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964). Bank Ltd., 130 S. Ct. 2869, 2887 (2010) (Scalia, J.) Id. Info. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to interpret geographic scope of Sherman Act in light of FTAIA). It has held that [a]cts of foreign governments purporting to have extraterritorial effectand consequently, by definition, falling outside the scope of the act of state doctrineshould be recognized by the courts only if they are consistent with the law and policy of the United States. Id. .). No. But when the geographic scope of the Sherman Act again reached the Supreme Court in Hartford Fire Insurance Co. v. California, the Court refused to consider dismissal on grounds of international comity unless the conduct prohibited by U.S. law was required by foreign law. Some international comity doctrines have been interpreted to permit case-by-case discretion by the executive branch. The recognition of foreign governments is controlled by the executive branch. Close endstream Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, Posner and Sunstein, however, discuss only a limited number of international comity doctrines. Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 413 48 It. 192 xs others both state and nonpreemptive federal law, ,.. endstream Id. . 384 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. endstream Close 131 1607 (denying foreign government immunity from counterclaims). as well as a large number of lower court cases. 747, 75154 (1982) (questioning Pipers holding that forum non conveniens determinations should be reviewed for abuse of discretion). For Story, there was no separate category called the comity of courts. 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