2005) (It may be argued that a foreign state, for purposes of the FSIA, is an entity that has been recognized as a sovereign by the United States government.); see also Sokolow v. Palestine Liberation Org., 583 F. Supp. See supra note 196 and accompanying text (discussing Empagran). See 2005 Uniform Act, supra note 106, 11 (This [act] does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].); see also Manco Contracting Co.

385 51 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). Close Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). 1996) (applying section 403 factors under heading of international comity). 63 1170, 1177 (2007) ([T]here are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity.

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337 . 27 35

As a principle of restraint, adjudicative comity operates through a multitude of doctrines that limit the exercise of U.S. courts jurisdiction, often with the aim of avoiding multiple proceedings. 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. 37 In the context of sovereign party comity, by contrast, recognition may preclude restraint. 2005 Uniform Act, supra note 106, 4(a). 1999) ([I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.). 135 224 Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 287 340 8, intro. Close 65 Is there an international duty Yousuf, 699 F.3d at 773. As a Principle of Restraint. Story, supra note 54, 18, at 25. Verlinden B.V. v. Cent. Close depends upon what our greatest jurists have been content to call the comity of nations); see also Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (noting spirit of comity lies behind enforcement of foreign judgments). An earlier case allowing the Spanish King to bring suit had rested not on comity but on the reference in Article III of the Constitution to controversies involving foreign states. 1. Webtaxation are possible, they usually arise internationally from the use by two or more countries of one or more of the following combinations of bases for taxation: {Income of resident citizens earned abroad. See Yntema, supra note 71, at 1619 (discussing historical concerns of Netherlands following independence). at 146. Donald Trump pleaded not guilty Tuesday to 34 felony counts of falsifying business records related to his alleged role in

See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. Close 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. 360 196 188(3). 93 127 Court for S. Dist. See 22 U.S.C. See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) ([I]nternational comity.

J. Intl L. 20, 2829 (1948) (noting Peace of Westphalia established new system characterized by the coexistence of a multiplicity of states, each sovereign within its territory, equal to one another, and free from any external earthly authority).

341 Close, But it is only when adjudicative comity is used as a principle of restraint that standards clearly predominate over rules. Doctrines that defer to foreign lawmakers, like the conflict of laws, the act of state doctrine, and the presumption against extraterritoriality, are manifestations of prescriptive comity. 1782(a) (2012). 276 Oetjen v. Cent. Close In modern cases, the Supreme Court has said that the act of state doctrine arises out of the basic relationships between branches of government in a system of separation of powers.

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. Close

Categorizing the doctrines also facilitates comparisons within and across categories and raises new questions. Former President Donald Trump is expected to appear before Justice Juan Merchan, the judge who presided over a criminal trial last year in which Trump's real 151

Close It is needless to enumerate here, Chief Justice Taney wrote in Bank of Augusta v. Earle, the instances in which, by the general practice of civilized countries, the laws of the one, will, by the comity of nations, be recognised and executed in another, where the right of individuals are concerned. 242 542 U.S. 241, 261 (2004). Leather Co., 246 U.S. 297, 30304 (1918). 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. While Story found much diversity of practice as well as of opinion among jurists and nations, Story, supra note 54, 584, at 847, he also cited comity as the basis for enforcing foreign judgments. 169 On the other hand, one should be skeptical of doctrines that allow the executive branch to dictate the outcomes of particular cases on foreign policy grounds. 20, at 26. 341 Id. 146 [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. 23, at 30. v. Corp., 43 F.3d 65, 75 (3d Cir. Although Hartford was considered a near death blow for comity, These opinions also assumed that international law required exhaustion. 16,871) (Story, J.). Huber, supra note 74, at 164. 171 Colorado River, 424 U.S. at 818. Judge Zilly dissented from this part of the opinion, finding the doctrine inapplicable in the absence of a pending foreign proceeding. 95 2005 Uniform Act, supra note 106, 4(c)(3); see also 1962 Uniform Act, supra note 106, 4(b)(3) (noting foreign judgment need not be recognized if cause of action on which the judgment is based is repugnant to the public policy of this state). 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. But understanding the difference is critical to understanding how international comity works in American law. at 77273 (Douglas, J., concurring) (rejecting Bernstein exception); id. Close, Second, the Executives ability to make case-by-case comity determinations may harm, rather than advance, the foreign relations of the United States. The statute expressly says that a district court may order a person within its district to provide evidence.

21) (The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law. Close Close 5. 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. See, e.g., Verlinden B.V. v. Cent. 95 should be recognized by the courts only if they are consistent with the law and policy of the United States.). 90 Close 137 267 48 Pamela K. Bookman, Litigation Isolationism, 67 Stan. Only the first rationale reflects international comity. Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va. J. Intl L. 127, 147 (2012); Childress, supra note 20, at 16. 316 Rep. 99, 78 (Feb. 3) (discussing state immunity for military activities during armed conflict); Arrest Warrant of 11 April 2000 (Dem.

See U.S. Const.

Id. See infra notes 382385 and accompanying text (discussing deference to executive branch determinations of immunity). The jurisdiction of the nation within its own territory is necessarily exclusive and absolute, Marshall wrote. This Article provides the first comprehensive account of international comity in American law, as well as the clear analytical framework that previous writers have complained was missing. 162 Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, and the President. If so, the court will weigh the private and public interests 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. Guar. 315 11 See, e.g., Sosa, 542 U.S. at 732 (limiting ATS cause of action to violations of international law norms that are generally accepted and specifically defined); id. Loucks v. Standard Oil Co. of N.Y., 120 N.E. 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. But the distinction clarifies the respective roles of international comity and international law. 294 Close Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. Ramsey, supra note 19, at 897906; Slaughter, A Global Community of Courts, supra note 37, at 194. 46 85 . 3227, 500 U.N.T.S. 318 Once that focus has been established and the territorial reach of a provision determined, however, the geographic scope of the provision remains the same in each case. at 278990 (plurality opinion) (Kennedy, J.) But see Henry J. The Second Circuit has looked to principles of comity to determine whether to recognize foreign acts of state having extraterritorial effect. 19 Id. Close 81 1605A. Law Inst. One might characterize the act of state doctrine as one that rests in part on a basis other than comity. Restatement (Third) of the Foreign Relations Law of the United States 401(a) (Am. (We are bound to give effect to the assignment [of personal property]. 179 324 61 . Close. Close

Close Close 178 WebThe doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comityfrom at 610. Def. And yet the Supreme Court often seems to treat international comity and international law as interchangeable. . 1. Id. Member States but prohibited under the Brussels I Regulation (Recast), see The Information Referring to Article 76 of Regulation (EU) No. at 16364. Close Or does it operate as a principle of restraint to limit the reach of American law, the jurisdiction of American courts, and, more specifically, the jurisdiction of American courts over foreign sovereign defendants? See Klaxon Co. v. Stentor Elec.

Close 199 See id. See infra Part III (explaining differences between international comity and international law). 28 U.S.C. 98

See id. Other foreign officials, as well as former foreign officials, may be entitled to conduct-based immunity. (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; See Gross, 456 F.3d at 394 (We remain skeptical of this broad application of the international comity doctrine, noting our virtually unflagging obligation to exercise the jurisdiction granted to us. See id. See, e.g., Am. .). Me. Close The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comityfrom the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to the doctrines limiting adjudicative jurisdiction in international cases; and from a foreign governments privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. . 132 For a country to treat a defendant according to its own notions rather than those of the place where he did the acts, Justice Holmes wrote, 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. It also underlines the point that courts and legislatures may shape the international comity doctrines, as rules of domestic law, to achieve an appropriate level of deference to foreign lawmakers, foreign courts, and foreign governments as litigants. Close, A larger number of circuits have recognized a doctrine of abstention based on international comity. but that phrase could describe either comity to legislatures or comity by legislatures.

120 at 773 (Powell, J., concurring) (I would be uncomfortable with a doctrine which would require the judiciary to receive the Executives permission before invoking its jurisdiction.); id.

But in fact, the separation-of-powers rationale for the act of state doctrine has international comity at its heart, for it rests on the perceived need for respect to foreign governments. at 589. Compare Paul, Comity in International Law, supra note 17, at 20 (Storys intention in formalizing the doctrine was to enshrine comity as a mediating principle between free and slave states and thereby save the republic.), with Watson, supra note 89, at 40 (finding no evidence slavery was in the forefront of Storys mind on this matter). What changes is the time at which the question is asked. See, e.g., id.

Close The literature is voluminous. 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. 312 385 34 Although an early Supreme Court case applying the doctrine in admiralty had referred to motives of convenience or international comity, Close See The Paquete Habana, 175 U.S. 677, 700 (1900) (International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.) As a Principle of Recognition. Close

Close 17,031) (Story, J.) Empagrans presumption against unreasonable interference also has a standard-like quality, although the Court applied it in that case to generate clear rules about the applicability of the Sherman Act and expressly rejected case-by-case balancing. See, e.g., Somportex Ltd. v. Phila.

while the Second Circuit considers them absolutely binding. 308 135 38 (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). 281 67 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). Modern courts and commentators have repeated the criticism. 316 If that recognition occurs as a matter of comity, as has traditionally been the case with the conflict of laws in the United States, it may properly be deemed an exercise of prescriptive comity., Some writers have preferred legislative comity, As a general matter, [d]ue process limits on the States adjudicative authority principally protect the liberty of the nonresident defendant. to see if they are sufficient to overcome the strong presumption in favor of the plaintiffs choice of forum. It is precisely this discretionary aspect of comity that attracted the most criticism over the years. 134 S. Ct. 746, 761 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846, 2851 (2011)). Restatement (Second) of Conflicts of Laws 90 (No action will be entertained on a foreign cause of action the enforcement of which is contrary to the strong public policy of the forum.). 164, 167 (1870) (To deny him this privilege would manifest a want of comity and friendly feeling.). 42 (manuscript at 12). 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, .); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 254 n.22 (1981) (At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum.). 164 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. These acts generally follow the rules set forth by the U.S. Supreme Court in Hilton (minus the reciprocity requirement). See The Sapphire, 78 U.S. (11 Wall.) There is obviously an element of restraint in recognition and an element of recognition in restraint. Close The execution of all judgments in all cases decided in its favor by the CTA and the ordinary courts. 77 756, 757 (C.C.D. (L 339) 3, 3132 (listing exorbitant bases of jurisdiction prohibited by Lugano Convention). See, e.g., Klinghoffer v. S.N.C. as well as a large number of lower court cases. 318 Inspired by a footnote in the Supreme Courts Sosa decision, 131

See 28 U.S.C. 160 2006) (applying doctrine of international comity abstention). It is also important to note that some of the international comity doctrines rest partly on comity and partly on other bases. International comity thus describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries. Id. 17 deference to foreign tribunals is termed adjudicative comity, See Paul, Comity in International Law, supra note 17, at 27 (examining how courts in other legal systems use either the classical doctrine or the broader notion of comity to manage conflicting public policies between sovereign states); Spencer Weber Waller, A Unified Theory of Transnational Procedure, 26 Cornell Intl L.J. Close As a Principle of Restraint. 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). 143 Socit Nationale Industrielle Arospatiale v. U.S. Dist. The Belgenland, 114 U.S. 355, 363 (1885). 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. But comity as a principle of restraint was more difficult to explain in convenience terms. 220 In the domestic context, a few other abstention doctrines exist.

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