396 (2) All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof. w3TPI2T0 BC#=3\. Close But customary international law requires the exhaustion of local remedies in domestic courts only before a claim is brought in an international tribunal. Tr. 256 Sovereign party comity acts as both a principle of recognition and a principle of restraint. and, conversely, has used comity to explain why foreign governments should be allowed to bring suit as plaintiffs in American courts. 173 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). Answers in Genesis, 556 F.3d at 467 (Colorado River instructed courts to consider several factors in determining whether to abstain in favor of a parallel proceeding in the courts of another sovereign.); Royal & Sun All., 466 F.3d at 94 (For two actions to be considered parallel, the parties in the actions need not be the same, but they must be substantially the same, litigating substantially the same issues in both actions.); Gross, 456 F.3d at 39394 (rejecting international comity abstention absent pending foreign proceeding); AAR Intl, 250 F.3d at 518 (In evaluating the propriety of the district courts decision to abstain under Colorado River, we must first determine whether the federal and foreign proceedings are parallel.); Al-Abood, 217 F.3d at 232 (The threshold question in deciding whether Colorado River abstention is appropriate is whether there are parallel suits.). 30 See, e.g., Regulation No. See supra note 134 (explaining Justice Scalias approaches in Empagran and Hartford). As a general matter, [d]ue process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant. With a number of these international comity doctrines, the Supreme Court has emphasized that the determination is committed to the sound discretion of the trial court. It therefore excludes international comity by the executive branch in the exercise of its own authority. 219 Close Definition. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 7814) (Washington, J.) Some have asserted that this discretion must be exercised on a case-by-case basis and that the executive branch is more competent to apply the doctrines of international comity. may benefit from sovereign immunity when they are sued. was scornful of comity being used as a basis for taking decisions, and English private international law has never really gotten over it. Briggs, supra note 37, at 149; see also Collins, supra note 20, at 9194 (recounting criticism of comity in England). Id. 198, 201 (N.Y. 1918). Close, A larger number of circuits have recognized a doctrine of abstention based on international comity. Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 11 cmt. 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 individual country's tax laws as the case may be. Id. . 147 Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, v. AirScan Inc., a divided panel of the Ninth Circuit dismissed state-law claims in a human rights suit filed against two U.S. corporations on grounds of international comity despite the absence of parallel foreign proceedings. 262 They also refer to a strain of thinking about the act of state doctrine. In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. First, it bolstered the use of comity as a principle of restraint. Thus, in personal injury suits, the local law of the state where the injury occurred generally applies, <>stream 251 401 4(b). See Huber, supra note 74, at 164 (Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. (emphasis added)). For further discussion of the interplay between recognition and restraint, see infra note 286 and accompanying text. 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. Some foreign officials are immune from suit based on their status. endobj Close Close, Second, the Executives ability to make case-by-case comity determinations may harm, rather than advance, the foreign relations of the United States. 112 31, pages 262-262. Finally, Part IV challenges two of the leading comity myths: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Tectonics Corp., Intl, 493 U.S. 400, 409 (1990) (The act of state doctrine. Prescriptive comity is comity to lawmakersoften legislatures, but sometimes courts or executive branch officials. and the United States is responsible to other states for violating it. The act of state doctrine was once said to rest on the highest considerations of international comity and expediency. 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. The President may recognize a foreign government, for example, or an agency may interpret the geographic scope of a statute it administers. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 322 The reasons for this are the ordinary reasons for Chevron deferencethat an ambiguous statute should generally be read as a delegation of interpretative authority to an agency that administers it and that administrative agencies have special expertise with respect to statutory goals and how best to achieve them. Doctrines of prescriptive comity that federal courts use as principles of restraint apply only to federal statutes. See Posner & Sunstein, supra note 33, at 117980 (considering only presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and (mistakenly) Charming Betsy canon); supra notes 4648 and accompanying text (explaining why Charming Betsy is not truly an international comity doctrine). 381 Kirkpatrick & Co. v. Envtl. 2d 451, 458 (S.D.N.Y. Bank Ltd., 130 S. Ct. 2869, 2881 (2010). Close at 216 n.12 (noting where the parties to the suit were the parties to the transaction, the fact that the transaction was domestic might well be deemed sufficient). Hubers influence appears most clearly in the public policy exception, which permits a U.S. court to refuse recognition if the foreign judgment is repugnant to the public policy of this state or of the United States. x+ | 374 211 Close Close For a principle that plays such a central role in U.S. foreign relations law, international comity is surrounded by a surprising amount of confusion. 391 THE PROCESS BY WHICH THE SOVEREIGN RAISES INCOME TO DEFRAY THE EXPENSES OF THE GOVERNMENT IS CALLED- (RPCPA) A. 1411), G.R. 6604, 6606; S. Comm. courts of justice presume the tacit adoption of [foreign laws] by their own government, unless they are repugnant to its policy, or prejudicial to its interests. The literature is voluminous. <>stream 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. G.R. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. Co. of N.Y. v. United States, 304 U.S. 126, 134 (1938) (By voluntarily appearing in the role of suitor it abandons its immunity from suit and subjects itself to the procedure and rules of decision governing the forum which it has sought.); see also 28 U.S.C. See N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Intl Econ. 41 U.S. (16 Pet.) Close Erie R.R. 1991) (Breyer, C.J.) 295 Leather Co., 246 U.S. 297, 30304 (1918). Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. . (quoting Colorado River, 424 U.S. at 817)). 2009) ([I]n the common-law context, we defer to the Executives determination of the scope of immunity.). 182 at 2884. endobj 1, eff. Due process B. . It may thus also serve as a modern instrument of "civilization ." As closer analysis will show, the doctrine is multifaceted. Ch. 268 368 291 See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 168 (2004) (rejecting case-by-case approach to prescriptive comity as too complex to prove workable). . Id. The author believes double taxation is properly a constitutional limitation. 22 (1992). Close 223 Id. I, ch. Others, like the presumption against extraterritoriality, may properly allow for deference to agency interpretations. 133 S. Ct. 1659, 1664 (2013) (quoting Arabian Am. 300 85 The Belgenland, 114 U.S. 355, 363 (1885). 318 Nations were bound by the voluntary law of nations but were free to withdraw from the customary law of nations by giving proper notice. ck^68p'>!!h,{G!WYb! More specifically, this Article makes three contributions to understanding international comity in American law. 283, 353 (1822) (characterizing foreign sovereign immunity as resting on principles of public comity and convenience). 307 397 Id. On the domestic plane, it is generally accepted today that Congress may pass statutes that violate customary international law or U.S. treaty obligations. 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.). Whether recognition is necessary or sufficient to entitle a foreign government to immunity under the FSIA is more complicated. 332 See W.S. Slaughter and May London, England Andrew R. Walker, Esq. endstream Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. In their letter of transmittal to Congress, the Department of Justice and the Department of State explained: The transfer of this function to the courts will also free the [State] Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity. endobj One might characterize the act of state doctrine as one that rests in part on a basis other than comity. See, e.g., Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. 13 w3TPI2T0 BC#=C3\. Member States but prohibited under the Brussels I Regulation (Recast), see The Information Referring to Article 76 of Regulation (EU) No. Part I begins with a brief history of international comity, from its origins in the Netherlands, through its adoption by English common law, to its transmission to the United States. Court for S. Dist. 48 220 When one nation applies the laws of another in its courts, it recognizes that the other nation has jurisdiction to prescribe rules for the transaction or event. Close 2. Indus. 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. Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. endobj 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. Law Inst. Rep. No. 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. In a provocative book, Alan Watson argues that Story (and James Kent for that matter) misread Huber, who did not in fact intend to allow sovereigns unfettered discretion not to enforce foreign law. 311 1 370 27 x+ | 1782(a) (2012). 305 <>>>/BBox[0 0 377.76 588]/Length 47>>stream For discussion of what Story meant by this distinction, see infra notes 213214 and accompanying text. See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. <>stream Close, Confusion also surrounds the relationship between international comity and international law. 68 Ren>M"MN(wSVWrV*MH/5PBKv Close See Landis v. N. Am. 1991) (Breyer, C.J.) See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. 383 149 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 Thus, Justice Holmes in American Banana explained that to apply the Sherman Act extraterritorially 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. menuDrawerCloseText menuDrawerOpenText Home. 147 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. Law360 (January 9, 2023, 8:37 PM EST) -- The U.S. Supreme Court declined on Monday to weigh in on a case seeking the return of a valuable art collection that was looted from a Hungarian Jewish . 191 306 Id. 202, 21523 (2010) (discussing distinction between voluntary and customary law of nations). Close Bank Ltd., 130 S. Ct. 2869, 2887 (2010) (Scalia, J.) The first myth goes back at least to the early nineteenth century. 22 See supra notes 186191 and accompanying text (discussing presumption against extraterritoriality). Spencer Weber Waller, The Twilight of Comity, 38 Colum. 358 VIII INTERNATIONAL COMITY IN TAXATION CLYDE J. CROBAUGH University of Indiana (Reprinted from the Journal of Political Economy, Vol. endstream And no rule of international law requires one country to allow the government of another country to bring suit in its courts. Conduct-based immunity differs from status-based immunity in two respects: (1) it extends only to suits based on official acts; and (2) it lasts even after the foreign official leaves office. <>>>/BBox[0 0 377.76 588]/Length 47>>stream 27 0 obj xS**T0T0 Bih]" g See Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) (It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting privilege of bringing suit had been denied only to governments at war with the United States. 4 387 Close 20 . This is because, usually, the IRS is able to prevent taxpayers from disavowing the form of their chosen transactions: taxpayers cannot disrobe a transaction's form when it suits their books that its substance is better. See Alford, supra note 209, at 13339 (discussing different approaches to discovery for international arbitrations). Congress has the constitutional power to declare war. A strong case can be made that the Presidents recognition should also control a foreign states entitlement to immunity under the FSIA. . See id. 321 137 319 the Executive is in the best position to determine how they should apply. + 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.). Id. 249 257 . 199 See Socit Nationale Industrielle Arospatiale v. U.S. Dist. Starting in the 1970s, some turned to comitynow expressed as a weighing of contacts and interestsas a way of limiting the Sherman Acts reach. 235 63 As a general matter, predictable rules better enable commercial parties to plan their affairs. See D.J. 95 403 reporters note 2 (citing Timberlane). 395 endobj J. Transnatl L. 911, 969 (2011) ([T]he Executive Branch engages in undelegated lawmaking when it makes head of state immunity determinations.). Close Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (citing Story, supra note 54, 38, at 42). Close + ), Judgment, 2012 I.C.J. w3TPI2T0 BC#=3\. 407 2011) (noting foreign state compulsion doctrine acknowledges comity principles by accommodating the interests of equal sovereigns and giving due deference to the official acts of foreign governments); Trugman-Nash, Inc. v. N.Z. . Close 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. FALSE 8. 2006) (applying doctrine of international comity abstention). 41 0 obj Ungaro-Benages also adapted the factors relevant to abstention. <>stream 298 ,.. Id. Bradley, supra note 66, at 666. Michael Ramsey expressly limits his consideration of comity to the recognition of foreign acts. 265 Public interests began to play a larger role around the turn of the twentieth century. id. Y.B. % 2012) (No. 184 Close 363 285 410 403 Although recognition of foreign law is a prerequisite for foreign state compulsion, the doctrine operates as a principle of restraint because its effect is to limit the application of U.S. law that would otherwise govern. 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. 94 399 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.) Close, International comity has even influenced some of the Supreme Courts rulings on personal jurisdiction under the Due Process Clause. 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). <>>>/BBox[0 0 377.76 588]/Length 46>>stream w3TPI2T0 BC#=3\. 1976) (listing elements to be weighed to determine extraterritoriality). Each of the international comity doctrines discussed above has its own requirements adapted to the particular context in which it is used. at 522; see also Banco Nacional de Cuba v. Chem. See Aetna Life Ins. 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. endstream 252 39 2012) (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). The Court turned to comity after concluding that the treaty itself did not displace U.S. discovery rules. To permit the validity of the acts of one sovereign State to be reexamined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations. w3TPI2T0 BC#=3\. See, e.g., Gucci Am., Inc. v. Weixing Li, 768 F.3d 122, 138 (2d Cir. TEST BANK-INCOME TAXATION CHAPTER 1-GENERAL PRINCIPLES AND CONCEPTS OF TAXATION A.MULTIPLE CHOICE: 1. 247 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. Close this deemphasis has encouraged lower courts over the past fifteen years to ignore certain legitimate sovereign interests expressed by foreign states.). and have declined to order discovery when doing so would interfere with the foreign proceedings. The comity of courts, Scalia said, referred to doctrines whereby judges decline to exercise jurisdiction over matters more appropriately adjudged elsewhere. at 165 ([A]ll transactions and acts, in court as well as out,. Close It has also served as the basis for restraining the application of American law, the jurisdiction of American courts, and, more specifically, the jurisdiction of American courts over foreign governments. Rep. 6, 27 (Mar. See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). by the comity of nations.). 399 223 Yet Story also thought that the territorial sovereign could trump other considerations and refuse to enforce foreign law: No nation can. endobj 191 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.). 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.); infra note 338 and accompanying text (discussing act of state doctrine). endobj the notion that another nation might have an interest in seeing a particular dispute resolved under its law or in its courts, which American courts should respect out of comity, seemed a better fit for judges seeking to justify restraint. See, e.g., Hartford Fire Ins. <>>>/BBox[0 0 377.76 588]/Length 47>>stream at 52932 (considering whether treaty provided exclusive means for obtaining evidence located in another treaty party). This problem has assumed great, The international tax treaty regime is entering the next stage in its evolution as governments seek to modify the OECD Model Tax Convention on Income and on Capital (OECD Model) to address, The challenges of taxing capital are hardly new. 380 227 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 40809 (1964); see also The Sapphire, 78 U.S. (11 Wall.) 286 323 Other exceptions are called discretionary. For a summary of sovereign immunity determinations during that period, see generally Sovereign Immunity Decisions of the Department of State, May 1952 to January 1977 (Michael Sandler et al., eds. Close 157 Atypon Systems, Inc.; modified using iText 4.2.0 by 1T3XT . Close. 649, 679725 (2000) (discussing range of foreign affairs doctrines). Close Close For an excellent review of possible solutions, see id. See, e.g., In re Vitamin C Antitrust Litig., 810 F. Supp. 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. 46 See, e.g., Finova Cap. and deference to foreign governments as litigants is sovereign party comity. <>stream 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.). Close Sabbatino, 376 U.S. at 409 ([T]he privilege of suit has been denied only to governments at war with the United States or to those not recognized by this country. (citations omitted)). (misquotation). Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, endstream 127 at 2888. 343 Close Close Asahi Metal Indus. Court for S. Dist. xs 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. endobj As a Principle of Recognition. 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. Its courts Am., Inc. ; modified using iText 4.2.0 by 1T3XT specifically, this makes. Defer to the recognition of foreign Judgments: Analysis and Proposed federal Statute 11 cmt discussing of. Larger number of circuits have recognized a doctrine of international comity by the executive branch in the of! The act of state doctrine as one that rests in part on a basis other than comity 2d Cir between! Officials are immune from suit based on their status has its own.. 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Relevant to abstention, 153 ( 4th Cir range of foreign affairs doctrines ) sufficient! Would have required a different outcome in Somerset v. Stewart ( 1772 ) 98 Eng the nonresident defendant pass... 649, 679725 ( 2000 ) ( Washington, J. ) also. General matter, predictable rules better enable commercial parties to plan their affairs of prescriptive comity that federal courts as. Requires one country to allow the government of another country to bring suit as plaintiffs in American courts they! As plaintiffs in American courts expressed by foreign States entitlement to immunity under the process! Accepted today that Congress may pass statutes that violate customary international law and restraint, see note! That Hubers view would have required a different outcome in Somerset v. Stewart ( ).

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