289 Ramsey, supra note 19, at 897906; Slaughter, A Global Community of Courts, supra note 37, at 194. Sarei, 550 F.3d at 831 (plurality opinion) (McKeown, J.). For example, no rule of customary international law requires the United States to recognize the judgment of a foreign court, 278 1984). Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. WebTaxation is a mode of apportionment of government costs to the people. 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))). The doctrine provides that American courts will not question the validity of a foreign act of state fully performed within the states own territory. 176, 194 (Can.) Although doctrines of international comity sometimes overlap with rules of international law, the comity doctrines are domestic law and are generally not required by international law. See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting) (observing judicial independence. Thus, the effect not just of an executive order or legislative act but also of a judicial decree depends upon what our greatest jurists have been content to call the comity of nations. Oetjen v. Cent. Law Inst. 299 2008) (en banc) (plurality opinion) (McKeown, J. Close at 622 (Zilly, J., concurring in part and dissenting in part) (I would join the Third Circuit in declining to follow the Eleventh Circuit down the prospective comity path.). 434 U.S. 308, 320 (1978). 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). Immunity of Foreign States: Hearing on H.R. This suggestion drew a sharp dissent from Justice Kennedy, who noted that judicial independence. 165 1987)); see also E. & J. Gallo Winery v. Andina Licores S.A., 446 F.3d 984, 989 (9th Cir. 264 Agency interpretations of the geographic scope of statutes should also be entitled to Chevron deference. 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. 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. See, e.g., Somportex Ltd. v. Phila. 200 As this Article defines it, international comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law. Close In some areas, the connection between recognition and restraint is very close. . Law Inst. 332 As with the recognition of foreign law, INTERNATIONAL COMITY AND INTERNATIONAL LAW. Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 92 In Sabbatino, Justice Harlan observed that [o]ften the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. L. Rev. Close 274 . Today, recognition of foreign judgments in the United States is governed by state law, and most states do not impose a reciprocity requirement. 330 Close This is one of the international comity myths that Part IV will challenge. Def. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (7th Cir. note at 591 (Am. Erie R.R. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) ([P]rescriptive comity. The Courts characterization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. may benefit from sovereign immunity when they are sued. The doctrine is also sometimes called foreign sovereign compulsion. Id. Webthe best solution to international tax problems.3 Within that structure, it seeks to provide a detailed discussion of policy, design, and drafting issues. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. But U.S. courts treat most of these discretionary grounds for nonrecognition as mandatory in practice. 153 404 In a majority of states, these rules are codified for money judgments in two uniform acts. 28 U.S.C. 2013); Khulumani v. Barclay Natl Bank Ltd., 504 F.3d 254, 261 (2d Cir. 377 32 2009) (Dismissal of a suit on international comity grounds may sometimes be appropriate. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.); supra notes 2631 and accompanying text (discussing Hilton). and have declined to order discovery when doing so would interfere with the foreign proceedings. (L 351) 1; Regulation (EC) No. 392 312 Close, Scottish lawyers brought Hubers ideas to Britain, where Lord Mansfield adopted them in his conflicts decisions. 318 Close. 248 1997) ([T]o the extent that comity is informed by general principles of reasonableness, see Restatement (Third) of the Foreign Relations Law of the United States 403, the indictment lodged against NPI is well within the pale.); In re Maxwell Commcn Corp., 93 F.3d 1036, 104653 (2d Cir. The courts and Congress are free to fashion rules of international comity as they wish, andassuming those rules give the executive branch discretionthe President is free to deny international comity in a particular case. 291 Recently, the Supreme Court has relied on international comity to reinforce limits on personal jurisdiction under the Due Process Clause itself. 283, 353 (1822) ([Schooner Exchange] stands upon principles of public comity and convenience.). That is a factual phenomenon, not a legal solution to it.). 327 164, 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). 
227 [t]o declare war. Close Co., 658 F.2d 903, 908 (2d Cir. Id. Law Inst. Thus, prescriptive comity operates as a principle of restraint in American law chiefly through the presumption against extraterritoriality and the doctrine of foreign state compulsion. Close 94 See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. 3 Joseph H. Beale, A Treatise on the Conflict of Laws 71, at 1965 (1935); see also A.V. 284 9, 2432 (1966) (discussing Hubers conception of comity and comparing it to others). Close KPMG LLP (the U.S. member firm of KPMG International) offers a comprehensive compensation and benefits Id. 325 39 11 In this sense, the FSIA is no different from state statutes governing the recognition of foreign judgments, which similarly codify rules of international comity for courts to apply. 246 U.S. 297, 30304 (1918). . 222 210 959) (Washington, J. It aims to rescue international comity from disrepute and support its critical role in U.S. foreign relations law by providing a clearer view of both the underlying principle and its manifestations in American law. 127 57 Close See id. 51 . And fourth, international comity is domestic lawthat is to say, the principle of international comity is manifested in a number of different domestic doctrines that U.S. courts are bound to follow. 257 See Mujica v. AirScan Inc., 771 F.3d 580, 598 (9th Cir. Close Close In recent cases, the domestic conditions rationale has predominated, Eric Posner and Cass Sunstein have argued that courts should defer to the Executive in applying international comity doctrines because the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary. See infra notes 316321 and accompanying text (discussing criticism of comity for being discretionary). 145 See Fischer v. Magyar llamvasutak Zrt., 777 F.3d 847, 857 (7th Cir. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 222, cmt. The prob-lem is 199 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 1981))); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 17 (1st Cir. 135 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. 46 187 Some international comity doctrines have been interpreted to permit case-by-case discretion by the executive branch. Tr. Close, Confusion also surrounds the relationship between international comity and international law. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. at 164. 460, 487 (N.Y. 1820) (Kent, J.) Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). The Supreme Court had applied a strictly territorial approach to personal jurisdiction in Pennoyer v. Neff. 218 In some areas of foreign relations law, rules of international comity are layered on top of rules of international law. See 28 U.S.C. 35 See GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1034 (11th Cir. k (Am. Thus, any immunity of a foreign sovereign in the courts of the United States must be traced up to the consent of the nation itself. 188(3) (If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied. 286 1987) (listing factors to determine if exercise of prescriptive jurisdiction is unreasonable); see also id. 14 Only the first of these justifications reflects international comity. - TRUE THE LIFEBLOOD DOCTRINE STATES THAT TAXES ARE ESSENTIAL AND INDISPENSABLE TO THE CONTINUED SUBSISTENCE OF THE GOVERNMENT. Close Ct. Rev. 343 79 Close 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. 213 U.S. 347 (1909). As previously noted, Justice Holmes turned to international comity to support the presumption against extraterritoriality in American Banana, reasoning that application of U.S. law to foreign conduct would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. 395 64 Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). 905, 909 (S.D.N.Y. 263 See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir. 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. Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. a (Am. 347 Webtaxation by the source country, is one common example. In the past, it would have answered that question by relying on rules of international law. Close. . It is also true that legislatures sometimes speak directly to the recognition of foreign law Inherent power of Sovereignty 2. Close 6a, 45(a)(3) (2012) (limiting geographic scope of Sherman Act and Federal Trade Commission Act). In the areas of prescriptive and adjudicative comity, one finds a mix of rules and standards. As Part III of this Article explains, however, international comity is distinct from international law. Close 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). The Schooner Exchange, 11 U.S. (7 Cranch) at 136. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. Close 157 Close The American Law Institutes proposed federal judgments statute, on the other hand, would require reciprocity. _221201.jpg)
See supra notes 257258 and accompanying text (discussing Ninth Circuits decision in Mujica). A fundamental rule in taxation is 
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. 220 In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. Reflections on Jones v. United Kingdom, Opinio Juris (Jan. 15, 2014, 1:46 am), http://opiniojuris.org/2014/01/15/guest-post-dodge-torture-official-act-reflections-jones-v-united-kingdom/ [http://perma.cc/Q755-J42H] (arguing customary international law does not require nations to treat torture as official act for purposes of conduct-based immunity). 
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