Others, like the presumption against extraterritoriality, may properly allow for deference to agency interpretations. 415 43 22. Ins. xs Close <>stream 367 It may be reversed only when there has been a clear abuse of discretion. 2004); Republic of Philippines v. Westinghouse Elec. In deciding conflicts cases today, U.S. courts rarely invoke comity directly. endstream 292 In a sense, all of these doctrines defer to the executive branch. Close 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. 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). Id. 359 w3TPI2T0 BC#=3\. 1838) (No. In 1991, for example, Congress created an exception to Title VII of the 1964 Civil Rights Act for a workplace in a foreign country if compliance with [Title VII] would cause such employer. The Ninth Circuit developed this doctrine in the context of human rights litigation under the Alien Tort Statute. Hub Ltd. v. Porsche Auto. But the distinction should not be overstated. 10 0 obj EEOC v. Arabian Am. deference to foreign tribunals is termed adjudicative comity, 28 U.S.C. Speaking only of acts, this definition leaves out foreign sovereign immunity and a foreign states privilege of bringing suit in U.S. courts, both of which the Supreme Court had recognized as manifestations of international comity well before Hilton was decided. 106 <>stream The Courts characterization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. [2] Taxation is a power legislative in nature. 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. xs 4(c)(2)(8). Res. As a Principle of Restraint. Finally, the increasing reliance on maintaining friendly relations with foreign governments as a justification opened the door to arguments for increased deference to the executive branch on questions of international comity. endstream Close 304 Id. A/56/10, at 32 (2001), reprinted in [2001] 2 Y.B. . 1954) (giving effect to State Department letter waiving act of state doctrine). Each of these doctrines defers to foreign courts by restraining the exercise of U.S. courts jurisdiction. For status-based immunities, this authority derives from the Presidents recognition power and is uncontroversial, but there is no equivalent constitutional basis for determinations of status-based immunity. . 225 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.). The same is true of foreign discovery under Arospatiale, which requires a particularized analysis of the respective interests of the foreign nation and the requesting nation. . Close, But it is only when adjudicative comity is used as a principle of restraint that standards clearly predominate over rules. See, e.g., id. Close 366 Childress, supra note 20, at 51. Close 232 212 to those respecting the ownership of personal property, See Hilton v. Guyot, 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. Close 356 Close 341 256 Statement 2: International comity is an inherent limitation in taxation. 394 These doctrines defer to foreign lawmakers by limiting the reach of U.S. laws and thus protecting against possible conflicts with foreign law. See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. ,.. .). 2009) (While these bases have been characterized as exorbitant or extraordinary, they have, thus far, not been asserted, on authoritative grounds, to be violative of international law.); Clermont & Palmer, supra note 308, at 476 ([E]xorbitant jurisdiction is best understood less as an existing rule than as a normative statement about the appropriate scope of international jurisdiction.). endobj The second myth challenged here is that the executive branch has greater institutional competence to apply the comity doctrines. J. Comp. Bank of Nigeria, 461 U.S. 480, 486 (1983) (As The Schooner Exchange made clear, however, foreign sovereign immunity is a matter of grace and comity on the part of the United States, and not a restriction imposed by the Constitution.); First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) Close <> Quackenbush v. Allstate Ins. 1971) (The rules in the Restatement of this Subject apply to cases with elements in one or more States of the United States and are generally applicable to cases with elements in one or more foreign nations.). 15 1841) (1834) (quoting Saul v. His Creditors, 5 Mart. at 168. But see First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (plurality opinion) (Rehnquist, J.) In most circuits, international comity abstention is simply an application to foreign proceedings of the federalstate abstention doctrine articulated in Colorado River, Law Inst., Preliminary Draft No. 201 Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) ([G]overnments recognized by the United States and at peace with us are entitled to access to our courts. 344 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). 381 THE PROCESS BY WHICH THE SOVEREIGN RAISES INCOME TO DEFRAY THE EXPENSES OF THE GOVERNMENT IS CALLED- (RPCPA) A. ([I]n ATS cases where the United States nexus is weak, courts should carefully consider the question of exhaustion. Close 1981))); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 17 (1st Cir. Originally comprising seven articles, it delineates the national frame and constraints of government. The first has long made comity an object of criticism. Choong Yong, 837 F.2d 33, 37 (2d Cir. 346 (n.s.) Close, A larger number of circuits have recognized a doctrine of abstention based on international comity. 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. 8 0 obj Close 128 If only the first statement is correct. subject to a number of presumptive rules for recognizing foreign law. Practice in International Law 1017 (1977). 285 No. 36 0 obj 323 1971) (articulating standard for torts); id. endobj 16 (We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.); Wadleigh v. Veazie, 28 F. Cas. As the Court restated the rule most recently, governments recognized by the United States and at peace with us are entitled to access to our courts. State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. 549 F.2d at 613. 101 Close ,.. 321), The aggravating circumstances of nighttime, G.R. Answer: No. 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. Am. Tectonics Corp., Intl, 493 U.S. 400, 40809 (1990) (The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments. The power of taxation in the Philippines Constitution are grants of power and no limitations on taxing power. 283, 353 (1822). 1062, 1064 (C.C.D.R.I. 364 Close 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. Part II discusses and categorizes the manifestations of international comity in American law, defending the inclusion of each doctrine and explaining why each of the categories represents a coherent group. See supra note 74 and accompanying text (quoting Hubers maxims). b (Am. 17 Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. 51 Federal courts also exercise adjudicative comity as a principle of recognition when they assist foreign courts with the discovery of evidence in the United States. at 2884. . Close . + Close, This definition of comity is both incomplete and ambiguous. 154 Is NO-license driver AUTOMATICALLY criminally liable for car accident? 57 This exception is a direct descendant of Hubers third maxim that a government should enforce foreign laws so far as they do not cause prejudice to the power or rights of such government or of its subjects. Further, state courts were not obliged to follow the Supreme Courts decision in Hilton requiring reciprocity as a condition for recognizing foreign judgments. Close . . Close . 280 347 For detailed study of this topic we have to understand the tax provisions already prevailing in India: 318 [1] Taxation must be for a public purpose. Close Close J. Transnatl L. 819, 835 (2011). The issue is not one of jurisdiction, but one of comity. (quoting Seattle Totems Hockey Club, Inc. v. Natl Hockey League, 652 F.2d 852, 855 (9th Cir. J. Intl L. 708, 708 (1998) (Comity. 260 BULLETIN OF THE NATIONAL TAX ASSOCIATION [Vol. I, ch. 2009) (noting possibility of abstention when there is litigation pending in a foreign forum or, even absent such litigation, but finding abstention inappropriate in that case). Close 157 The President has never used this authority. 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 or happiness, or conscientious regard to justice and duty. Close International comity is one of the principal foundations of U.S. foreign relations law. Close This provoked a strong dissent from Justice Scalia, who thought the case should have been dismissed on the basis of prescriptive comity: the respect sovereign nations afford each other by limiting the reach of their laws. Is compulsory sterilization of criminals legal? In Oetjen v. Central Leather Co., the Supreme Court said that the doctrine rests at last upon the highest considerations of international comity and expediency. 102 308 See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. 165 A number of prior articles have discussed international comity in American law, but each has been restricted in some way. 47252. As noted in the introduction, many doctrines of American law manifest the principle of international comity. at 50607 (In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process. Co. of N.Y. v. United States, 304 U.S. 126 (1938). Each directs the court to determine particular relevant facts. The Restatement (Second) of Conflict of Laws adopts a most significant relationship standard, 42 209 H Mujica v. Airscan Inc., 771 F.3d 580, 609 (9th Cir. . overlap to a large degree). H 194 The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to international comity. Id. Close To be sure, the Supreme Courts decision in Morrison makes clear that the presumption does not turn mechanically on the location of the conduct but rather requires a court to determine the focus of congressional concern. 182 168 49 Other circuits have rejected an exhaustion requirement in ATS cases. Close. 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.). 28 U.S.C. Academic Research on Comity. Kirkpatrick & Co. v. Envtl. 75 But other references emphasize comity as the normative justification for sovereign immunity. Close 391 See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 5 0 obj Hilton imposed a reciprocity requirement for the enforcement of foreign judgments under general common law. at 164, 165, 169. endstream at 5464 (providing contract theory analysis); see also id. 31 See Sabbatino, 376 U.S. at 423 (The act of state doctrine. .). INTERNATIONAL COMITY IN TAXATION The problem of international double taxation is one of the most serious questions that engages the attention of economists and financial experts at the present time. Id. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. J. Transnatl L. 563, 564 (2000); see also Edward T. Swaine, Cooperation, Comity, and Competition Policy: United States, in Cooperation, Comity, and Competition Policy, supra note 37, at 3, 910 (suggesting comity was immolated in Hartford Fire). 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. More specifically, this Article makes three contributions to understanding international comity in American law. See id. Sabbatino, 376 U.S. at 40809 (holding privilege of bringing suit extends to governments recognized by United States and not at war with it); see also Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (Recognized sovereigns may sue in United States courts. on Claims & Governmental Relations of the H. Comm. 5/30/2019 1 International Comity after the Tax Cuts and Jobs Act of 2017 (Part I) The NY State Bar Association - Tax Section Summer Meeting Chair: Lawrence Garrett, Ernst & Young LLP John Merrick, Internal Revenue Service Michael Mollerus, Davis Polk & Wardwell LLP Ansgar Simon, Covington & Burling LLP June 1, 2019 The discretion afforded under the public policy exception may also make conflicts approaches seem like standards, but this discretion is cabined by the requirement that the forums public policy be a strong one. Nevertheless, lower courts have developed other comity doctrines to restrain adjudicative jurisdiction in international cases. See Spector, 545 U.S. at 158 (Scalia, J., dissenting) (The fine tuning of legislation that the plurality requires would be better left to Congress. Hubers De Conflictu Legum set forth three maxims to address the problem of foreign rights in a world of exclusive territorial sovereignty: (1) The laws of each state have force within the limits of that government and bind all subject to it, but not beyond. xs 94-1487, at 7 (1976), reprinted in 1976 U.S.C.C.A.N. And other countries moderate the jurisdiction of their courts with a doctrine of lis pendens that defers in rule-like fashion to the first court seized with jurisdiction. 54 226 If it does it, it is as a matter of comity, and not as a matter of international right. 49 0 obj Close L. Rev. Based on this survey, this Article adopts a functional definition of international comity that captures its uses in American law today: International comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law. 217 Close 300 For consideration of international comity in other countries in the specific context of competition law, see generally Cooperation, Comity, and Competition Policy (Andrew T. Guzman ed., 2011) (discussing comity and antitrust in laws of the European Union, Brazil, Japan, and Israel, among others). 178 99 A panel of the Ninth Circuit later applied the doctrine to an expropriation claim brought under the FSIA, though that decision was later vacated when the case was reheard en banc. Close For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. In Pfizer, Inc. v. Government of India, the Court stated more broadly that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue, but in context the Court appears to have been referring to the Presidents recognition power and not any broader authority to deny recognized foreign governments access to U.S. courts. Bank N.Y. Tr. Rev. See William S. Dodge, International Comity in American Law, 115 Colum. a (Am. See, e.g., Am. See 159 U.S. 113, 163 (1895) (noting enforcement of judicial decree. 226 41 0 obj 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.) See, e.g., Hannah L. Buxbaum, Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Arospatiale, 38 Tex. Close B. I and II only. Justice demands we videotape all police interrogat G. R. No. See W.S. xs 320 Like Huber and Story, Gray noted the territorial sovereigns discretion not to enforce foreign law against its own interests. Close See Parkcentral Glob. Close, The doctrine of foreign state immunity, codified in the FSIA, is also quite rule-like. Although it is generally omitted from scholarly discussions of international comity, Close, U.S. courts have sometimes used other tools to restrain the reach of U.S. statutes. 284 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (That international law does not require application of the [act of state] doctrine is evidenced by the practice of nations.). . Riding circuit two years later, Justice Washington invoked Huber for the proposition that by the courtesy of nations, to be inferred from their tacit consent, the laws which are executed within the limits of any government are permitted to operate everywhere, provided they do not produce injury to the rights of such other government or its citizens. . 2000e-1(b) (2012); see also Age Discrimination in Employment Act, 29 U.S.C. Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. xS**T0T0 Bih]" W L.J. 215 86 See, e.g., Restatement (Second) of Conflict of Laws 188(1) (Am. No. As a Principle of Recognition. Close 3, 2015) (noting extent of discretion depends on the statute). 187 INS v. Chadha, 462 U.S. 919, 951 (1983) (The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.). 344 Kirkpatrick & Co. v. Envtl. x+ | 37 0 obj . See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 222 cmt. See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 321 260 186 endobj Close The border between the two has shifted over time. w3TPI2T0 BC#=3\. 276 Close, Huber saw these maxims as part of the law of nations, at 610. After examining a number of different doctrines, Maggie Gardner concludes that open-ended discretion promotes parochial outcomes systemically because it enables the evolution of tests that increasingly lock in parochial results. Maggie Gardner, Parochial Procedure 4 (Aug. 20, 2015) (unpublished manuscript), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2651453 (on file with the Columbia Law Review). x+ | 1, 4 (1991) [hereinafter Paul, Comity in International Law] ([D]espite ubiquitous invocation of the doctrine of comity, its meaning is surprisingly elusive.); Anne-Marie Slaughter, Court to Court, 92 Am. The same could be said of other areas in which comity has been employed as a standard rather than a rule. 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. . xs See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 50712 (1947) (recognizing authority of district court to dismiss on grounds of forum non conveniens). 4(c)(1). 53 Close 172 2370(e)(2) (2012) (creating exception in any case with respect to which the President determines that application of the act of state doctrine is required in that particular case by the foreign policy interests of the United States). See infra section II.B (describing adjudicative comity). , so long as its refusal to give it effect is not arbitrary according to the rules of the conflict of laws of states that have reasonably developed legal systems.). When one considers the full range, one sees a number of doctrines under which deference to the Executive would seem utterly inappropriate: the conflict of laws, the enforcement of foreign judgments, forum non conveniens, antisuit injunctions, and questions of foreign discovery, to name a few. Of course, a few of the examples in this Article, like international comity abstention and foreign official immunity, did not have the same salience when Posner and Sunstein published their Article in 2007. International Comity - Enforcement of Awards annulled in the Primary Jurisdiction. Story, supra note 54, 38, at 41. Only the first of these justifications reflects international comity. taxation notes, reviewer . <>stream See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). Close, With respect to foreign official immunity, the executive branch has claimed authority to make binding determinations since the Supreme Courts 2010 decision in Samantar. 140 And when the court is asked to decline jurisdiction for lack of personal jurisdiction or on grounds of forum non conveniens, a foreign proceeding may not even have begun. Close w3TPI2T0 BC#=3\. 277 194 52 0 obj 146. Comity in international law, Paul, J. R. (1991). Def. 192 courts have refused to permit persons who have acted in bad faith to rely on the defense.). From the beginning, international comity has been understood to be a matter for each nations discretion. See infra notes 316321 and accompanying text (discussing criticism of comity as discretionary). <>>>/BBox[0 0 377.76 588]/Length 46>>stream xs Why, for example, has reciprocity been urged as a requirement for some of the comity doctrines but not for others? . x+ | Resol. Co., 517 U.S. 706, 723 (1996). No. Close Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). 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. endstream Close See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004) (stating we would certainly consider [an exhaustion] requirement in an appropriate case). 61 2006) (A federal district court with jurisdiction over the parties has the power to enjoin them from proceeding with an action in the courts of a foreign country, although the power should be used sparingly. Close 2, April, 1923) The problem of international double taxation is one of the most serious ques-tions that engages the attention of econo- <>>>/BBox[0 0 377.76 588]/Length 47>>stream The Supreme Court has held that [u]nder principles of comity governing this countrys relations with other nations, sovereign states are allowed to sue in the courts of the United States. v. Century Intl Arms, Inc., 466 F.3d 88, 92 (2d Cir. and counterclaims. Id. 764), Free exercise of religion = basis of tax exemption, G. R. No. See W.S. These acts generally follow the rules set forth by the U.S. Supreme Court in Hilton (minus the reciprocity requirement). 121004. CCI Fines Google For Abuse Of Dominant Position. Socit Nationale Industrielle Arospatiale v. U.S. Dist. Guar. 253 Close The Charming Betsy canon is more akin to the constitutional avoidance canon, with which it is sometimes linked, than to doctrines of international comity. 45 23 In the bankruptcy context, U.S. courts have been more willing to abstain in favor of foreign proceedings because of express congressional authorization. The en banc court did not reach the question of prudential exhaustion. Oetjen v. Cent. 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). 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. This discretionary aspect of international comity has been responsible for much of the criticism that the doctrine has attracted over the years. 33 0 obj and the Supreme Court has rejected a case-by-case approach for restraining the extraterritorial reach of federal statutes. Close But in the first half of the twentieth century, this territorial approach gave way to the more flexible framework of International Shoe Co. v. Washington, which required only certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. 38, at 51, 180 F.3d 896, 898 ( 7th Cir If... 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Institutional competence to apply the comity doctrines to restrain adjudicative jurisdiction in international law: some Lessons from History 120! Conflictu Legum, 13 U.S. ( international comity taxation Cranch ) 388, 423 ( the of... Not reach the question of prudential exhaustion limiting the reach of U.S. laws and thus protecting possible. Statement is correct nations, at 610 INCOME to DEFRAY the EXPENSES of the foreign Relations law of nations at. Nereide, 13 U.S. ( 9 Cranch ) 388, 423 ( 1815 ) ( noting extent discretion! To restrain adjudicative jurisdiction in international cases foreign judgments R. ( 1991 ) responsible much...