. The Schooner Exchange is sometimes read as applying international law, but Marshall treated the international rules governing immunity as defeasible by the United States. Because of its expertise in foreign relations, 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. 282 For an argument that U.S. courts should adopt a similar rule, see Parrish, supra note 18, at 26977 (arguing for stay in favor of action first filed unless manifest injustice would result). But comity as a principle of restraint was more difficult to explain in convenience terms. 390 37 In an early case, the Supreme Court characterized the doctrine as resting on the highest considerations of international comity and expediency. As former State Department Legal Adviser John Bellinger has noted, the same dynamic is likely to play itself out in the context of foreign official immunity, where the State Department currently claims unreviewable discretion to make case-by-case immunity determinations: I wonder whether, in a few years time, the Legal Advisers Office will be in that same situation again, seeking another kind of FOIAa Foreign Officials Immunities Actjust as 40 years ago it sought the FSIA to relieve the burden and political pressure of having to file statements of sovereign immunity in every case. Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. Bank Ltd., 130 S. Ct. 2869, 2881 (2010). . at 423; see also Kirkpatrick, 493 U.S. at 404 (noting evolution in jurisprudential foundation for the act of state doctrine from comity to separation of powers). endobj 1, 45 (2014) ([I]f a statute is silent or ambiguous with respect to its extraterritoriality, and if Congress has explicitly or implicitly delegated responsibility for that statute to an administrative agency, the agencys ex ante interpretation is valid if it is a permissible construction of the statute.). and instead articulated a number of factors to guide the district courts discretion. 217 The President has never used this authority. VIII INTERNATIONAL COMITY IN TAXATION CLYDE J. CROBAUGH University of Indiana (Reprinted from the Journal of Political Economy, Vol. See infra notes 404410 and accompanying text (noting purpose of FSIA to transfer foreign state immunity determinations to courts). at 763. 304 319 327 Id. In the area of sovereign party comity, the Supreme Court has adopted a rule that any government recognized by the United States, and not at war with it, may bring suit in U.S. courts, v. In recent cases, the domestic conditions rationale has predominated, Quackenbush v. Allstate Ins. Holdings SE, 763 F.3d 198, 216 (2d Cir. 258 See infra notes 406409 and accompanying text (discussing legislative history of FSIA). 767.041 Full faith and credit; comity. w3TPI2T0 BC#=3\. They consistently cited mutual convenience as the basis for extending comity to foreign laws, subject to the proviso that they do not produce injury to the rights of [the] government or its citizens. Colo. River Water Conservation Dist. 82 the laws of one State have no operation outside of its territory, except so far as is allowed by comity). . 349 See id. 1782(a)). 274 2. Other opinions accurately describe comity as the historical basis for sovereign immunity. Close. Other international comity doctrines that allow the Executive to dictate the outcome in specific casesthe Bernstein exception to the act of state doctrine, Altmanns possibility of deference to statements of interest under the FSIA, and Sosas suggestion of case-specific deference in ATS casespresent the same dangers. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as singular specimen of confusion of thought produced by laxity of language). 382 .). (forthcoming 2016) (manuscript at 3364) (on file with the Columbia Law Review) (examining reasons for Courts deference to views of foreign sovereigns who file amicus briefs). Id. 389 . 42 U.S.C. See supra notes 7491 and accompanying text (discussing Huber and Story). Story, supra note 54, 18, at 25. (W.W.L.) at 23 (Vague terms, such as comity, promise much and deliver little in terms of usable instructions for judges facing a potential encounter with foreign courts.). Second, this Article explains the critical distinction between international law and international comity. 56 0 obj at 41011 (rejecting argument that unfriendliness, including severance of diplomatic relations, should lead to denial of privilege). 1971) (articulating standard for torts); id. Under this doctrine, a court will first look to see if an adequate alternative forum exists. Close But the origin of these rules in comity is clearly seen in the widespread adoption of a public policy exception. 351 58 Since the Supreme Courts 2010 decision in Samantar, the executive branch has claimed authority to make determinations with respect to official immunity that are binding on the courts. . 206 w3TPI2T0 BC#=C3\. See Restatement (Second) of the Foreign Relations Law of the United States 9 (Am. 265 The first myth goes back at least to the early nineteenth century. With respect to the second myth, it is important to recognize that the proper role of the Executive depends on the comity doctrine at issue. Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, Close Each directs the court to determine particular relevant facts. The act of state doctrine was once said to rest on the highest considerations of international comity and expediency. Comity was neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. Tax laws cannot apply to properties of foreign governments (international comity). 367 . Such discretion invades the province of the judiciary and may harm, rather than advance, U.S. foreign relations. Chimne I. Keitner, The Common Law of Foreign Official Immunity, 14 Green Bag 2d 61, 6364 (2010) (discussing head of state immunity as status-based immunity). . Geo.LJ, 80, 53. Legacy. Close Only the first of these justifications reflects international comity. at 146. Close 1965) ([W]hen property confiscated is within the United States at the time of the attempted confiscation, our courts will give effect to acts of state only if they are consistent with the policy and law of the United States. (quoting Restatement of the Foreign Relations Law of the United States 46 (Am. 372 164 1971) (rejecting reciprocity requirement for conflict of laws). 261 endstream The Supreme Court in Hilton v. Guyot (1895) famously defined international comity as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation." That definition is incomplete, however, as comity encompasses much more than the recognition of foreign acts. 25, at 31. Close See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) ([A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Y.B. 199 Law & Governmental Relations of the H. Comm. Erie R.R. The power of taxation is limited to the territorial jurisdiction of the taxing state. 288 See, e.g., Calamita, supra note 37, at 637 (noting adjudicatory comity serves as the founding principle for the courts acceptance of [forum non conveniens]); Slaughter, A Global Community of Courts, supra note 37, at 205 (As courts grapple with issues such as forum selection clauses, forum non conveniens motions, and parallel suits, they are developing a more nuanced conception of judicial comity.). 292 A review of the international comity doctrines in American law shows that many take the form of rules rather than standardsfrom foreign sovereign immunity, to the act of state doctrine, to the presumption against extraterritoriality. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.). Close But see Massey, supra note 130, at 42834 (arguing section 403 does not reflect customary international law). 309 1517 (2012) (authorizing order recognizing foreign bankruptcy proceeding); see also In re Vitro S.A.B. <>>>/BBox[0 0 377.76 588]/Length 46>>stream Much more problematic is judicial deference to the Executive with respect to the outcomes of particular cases. See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (concluding principles of prescriptive comity limit U.S. antitrust law). The Supreme Court has adopted a rule that any government recognized by the United States, and not at war with it, may bring suit in U.S. courts. 403 See The Sapphire, 78 U.S. (11 Wall.) (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). . Until the turn of the twentieth century, a private rationale for comity predominated, most often expressed as commercial convenience. <>>>/BBox[0 0 377.76 588]/Length 46>>stream xS**T0T0 BiU" n In Wharf, we said the turnover order did not raise international comity concerns. 33 Socit Nationale Industrielle Arospatiale v. U.S. Dist. Although the Third Restatement took the position that such interest balancing was required by customary international law, 361 Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) ([P]rescriptive comity. Rules bind a court to decide a case in a particular way based upon a limited number of triggering facts, while standards invite a court to apply the background policy directly after considering the full range of facts. 111 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. 360 Co. of Can. 360 Joseph Story, Commentaries on the Conflict of Laws 28, at 34 (2d ed. . . 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). 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. <>>>/BBox[0 0 377.76 588]/Length 47>>stream . Kirkpatrick & Co. v. Envtl. Similarly, Joseph Beale observed that [t]he doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws. Close Close, In other areas, there is no international law core, and the rules mediating the relationship of the U.S. legal system with other countries are entirely rules of international comity. 128 Some international comity doctrines have been interpreted to permit case-by-case discretion by the executive branch. Watson speculates that Mansfield was deliberately ignoring Huber in order to reach his decision, Watson, supra, at 68, and that the attorneys for Somersets owners must not have raised Huber since that would have forced Mansfields hand, id. It is worth noting that three of the Supreme Courts most recent personal jurisdiction cases have involved non-U.S. defendants. Restatement (Third) of the Foreign Relations Law of the United States 102(2) (Am. in the international sphere.). When an award is annulled at the seat, however, enforcing courts in secondary . These international comity doctrines operate to recognize foreign law and to restrain the reach of American law. G.R. Probs., Summer 2008, at 19, 20 (Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches.). On almost identical facts, however, the Third Circuit rejected abstention. xS**T0T0 Bih]" S _ . 2013); Khulumani v. Barclay Natl Bank Ltd., 504 F.3d 254, 261 (2d Cir. As Part III explains, international comity is not just distinct from international lawit is deference to foreign government actors that is not required by international law. 295 186 163 Trades Council, 485 U.S. 568, 575 (1988) (stating constitutional avoidance canon has its roots in Chief Justice Marshalls opinion for the Court in Murray v. The Charming Betsy); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500 (1979) (misciting The Charming Betsy for proposition that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available). Allowing the Executive to tell courts which cases to dismiss does not. 321 When one looks at the full range, one sees quite a few with respect to which deference to the Executive seems completely inappropriate: the conflict of laws, the enforcement of foreign judgments, forum non conveniens, antisuit injunctions, and questions of foreign discovery, to name a few. 191 4(b). towards greater consideration of private interests. . 24, 1963, 21 U.S.T. Close Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. 164, 167 (1870). 162 129 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. Childress, supra note 20, at 34. Close gave substantial weight to a U.S. statement of interest suggesting that the adjudication of this case will have an adverse impact on the foreign policy interests of the United States. 32 16 Id. 257 Comity refers to courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdictions - whether state, federal or international - not as a matter of obligation but out of deference and mutual respect. 273 For a more detailed discussion of the relationship between international comity and international law, see infra Part III. 68 See infra section II.A (describing prescriptive comity). 93 208 See, e.g., Regulation No. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (noting relevant factors and declining to lay down inflexible and all-encompassing rule). 2071, 2078 (2015). TARIFF C. TAXATION D. TRIBUTE 2. 2011) (declining to consider whether exhaustion is required under ATS), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. v. Tremblay, 223 U.S. 185, 190 (1912) (holding Supreme Court had no jurisdiction to review state courts decision on recognition of foreign judgment). This is one of the international comity myths that Part IV will challenge. 393 at 817 (Scalia, J., dissenting). is this assessment valid? at 164. To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. Mining Co., 342 U.S. 437, 44748 (1952)). ,.. 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. See Alford, supra note 209, at 13339 (discussing different approaches to discovery for international arbitrations). 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)). 379 Co., 313 U.S. 487, 496 (1941) (The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delawares state courts.). 381 Part IV shows that international comity doctrines are frequently expressed as rules rather than standards, and that allowing courts to apply these doctrines without inference by the executive branch promotes not just the rule of law but also U.S. foreign relations. Judge Cardozo wrote in Loucks v. Standard Oil Co. of New York that [t]he misleading word comity has been responsible for much of the trouble in denying the enforcement of foreign law. . J. Comp. TRUE 7. 127 18 Kirkpatrick & Co. v. Envtl. 2202, 2212 (2015) (discussing early American understanding of law of nations). Close 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. [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. See Flomo v. Firestone Nat. endobj (2) that no state or nation can, by its laws, directly affect or bind property out of its own territory, or bind persons not resident therein; But see Joel R. Paul, The Transformation of International Comity, Law & Contemp. 3, 2015) (noting extent of discretion depends on the statute). Id. UUsL}b%t (The district court did not abuse its discretion when it considered whether exhaustion was required under the controlling plurality opinion of this court.), vacated on other grounds, 133 S. Ct. 1995 (2013); Paramedics Electromedicina Comercial, Ltda. Close 55 0 obj . : Gb(Z}*ohr[83h%))\8QDi_")\ H)+O:'3F5tMP 307 Close. National Internal Revenue Code as of its amendment by PD 69. of Iowa, 482 U.S. 522, 546 (1987) (The exact line between reasonableness and unreasonableness in each case must be drawn by the trial court, based on its knowledge of the case and of the claims and interests of the parties and the governments whose statutes and policies they invoke. (emphasis added)). 416 260 BULLETIN OF THE NATIONAL TAX ASSOCIATION [Vol. 69 0 obj The recognition of foreign governments is controlled by the executive branch. Law Inst. 201 Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. on the Judiciary, Define Jurisdiction of U.S. Courts in Suits Against Foreign States, S. Rep. No. . x+ | Even outside the Chevron context, they argue, courts should defer if the executive branch argues that the court should dismiss the case rather than reach the merits. . Prohibition against taxation of non-stock, non-pro G.R. See Samantar, 130 S. Ct. at 2292 (concluding FSIA does not govern petitioners claim of [foreign official] immunity). procedures compatible with. See Ramsey, supra note 19, at 90637 (referring to legislative comity). See Adam I. Muchmore, Jurisdictional Standards (and Rules), 46 Vand. Close 340 Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating international comity and international law interchangeably); W.S. 263 Giving the executive branch authority to make case-by-case determinations under doctrines of international comity is a bad idea. Although it is generally omitted from scholarly discussions of international comity, 25 w3TPI2T0 BC#=C3\. Which is not among the three (3) inherent powers of the state? It has been fertile in suggesting a discretion unregulated by general principles. See Altmann, 541 U.S. at 702 ([S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.); infra notes 386388 and accompanying text (discussing Altmann). The court called dismissal in the absence of a pending proceeding prospective[] comity. 182 6604, 6606; S. Comm. See, e.g., The Apollon, 22 U.S. (9 Wheat.) First, international comity is not just recognition but deferencea word that captures comitys use both as a principle of recognition and as a principle of restraint. ,.. 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. 414 As noted above, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency). . If comity is neither a matter of absolute obligation. See Restatement (Third) of the Foreign Relations Law of the United States 401(a) (noting prescriptive jurisdiction may be exercised by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court). 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. 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. 389 400 . 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. Close See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. See Cohen, supra note 34, at 436 (Special deference to the Executive on foreign affairs now seems ill-placed.). Only a few international comity doctrines clearly constitute federal law binding on state courts, including foreign sovereign immunity, due process limitations on personal jurisdiction, and the act of state doctrine. Close But they do so by attaching legal consequences to an exercise of executive authority made outside the context of litigation, rather than by deferring to the Executives judgment about whether any particular case should be dismissed. endobj 239 623), G.R. Exemption from extraterritorial legislation or adjudicative jurisdiction might be convenient for the defendant, but hardly so for the plaintiff. See infra notes 287288 and accompanying text (citing cases in which Court equates international comity with international law). Close, Beginning in the nineteenth century, comity was also invoked to allow a foreign sovereign to bring suit in U.S. courts. XXXI, No. 12 Close, Confusion also surrounds the relationship between international comity and international law. 289 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. 16 0 obj United States portal. may benefit from sovereign immunity when they are sued. Close. Today, comity appears to play a smaller role in England than in America. 32 0 obj 381 ,.. 416 ,.. ck^68p'>!!h,{G!WYb! See supra notes 152154 and accompanying text (discussing emergence of foreign sovereignty rationale). w3TPI2T0 BC#=C3\. The Department would be in a position to assert that the question of immunity is entirely one for the courts. 1984) (footnotes omitted). Close Close 391 Am. 1411), G.R. 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 and happiness, or conscientious regard to justice and duty.). . See, e.g., Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (The forum non conveniens determination is committed to the sound discretion of the trial court. Close . Parkcentrals holding may be limited to cases in which the defendants were not parties to the U.S. transactions. 388 403 reporters note 2 (citing Timberlane). 40 0 obj Close 235 104 xs 262 Close Court for S. Dist. endobj Close Wash. L. Rev. Answer: No, under international comity the property of a foreign state or government may not be the subject of taxation by another. subject to a number of presumptive rules for recognizing foreign law. But other references emphasize comity as the normative justification for sovereign immunity. 549 F.2d at 613. 62 Council, Inc., 509 U.S. 155, 174 (1993) (noting presumption has a foundation broader than the desire to avoid conflict with the laws of other nations); Smith v. United States, 507 U.S. 197, 204 n.5 (1993) (rejecting argument presumption does not apply where there is no risk of conflict with foreign law). Convenient for the defendant, but hardly so for the courts bankruptcy proceeding ;. To allow a foreign state or government may not be the subject of taxation is to! Discussing Altmann ) the widespread adoption of a foreign sovereign to bring suit in U.S. courts on identical! 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Haitian Ctrs by the executive branch ( ). 56 0 obj close 235 104 xs 262 close Court for S. Dist obj close 235 xs! Dismissal in the widespread adoption of a foreign sovereign to bring suit in U.S. courts diplomatic... See the Sapphire, 78 U.S. ( 11 Wall. ) a discretion unregulated by general principles 34! As is allowed by comity ) discussing Altmann ) 69 0 obj at 41011 ( rejecting reciprocity for. Vacated on other grounds, 133 S. Ct. at 2292 ( concluding FSIA does not govern petitioners of... However, the Supreme Court characterized the doctrine as resting on the statute ) 372 164 1971 ) articulating. Alford, supra note 209, at 42834 ( arguing section 403 does not ) \8QDi_ '' ) \ ). Iv will challenge comity and expediency arguing section 403 does not reflect international! Have No operation outside of its territory, except so far as is by... Would be in a position to assert that the question of immunity is one! 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