. (emphasis omitted)). 313 119 1971) (rejecting reciprocity requirement for conflict of laws).

195 but that phrase could describe either comity to legislatures or comity by legislatures. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004); see also Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.) Close Id. See id. Scholars echo these complaints. 1812) (No. Corp., 43 F.3d 65, 75 (3d Cir. Quackenbush v. Allstate Ins. and, conversely, has used comity to explain why foreign governments should be allowed to bring suit as plaintiffs in American courts. The case, in which Dallas served as counsel, was dismissed on jurisdictional grounds, but Dallas apparently felt that his translation should not go to waste. And finally, even when a U.S. court takes jurisdiction, comity has been deemed relevant to how that jurisdiction is exercised with respect to matters such as the discovery of evidence abroad under the Hague Evidence Convention. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (treating international comity and international law interchangeably); W.S. 260

134 756, 757 (C.C.D. Posner and Sunstein have argued that there are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity. 959) (Washington, J. H. Comm. . 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. 193 105 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. 185 See Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) (citing considerations of comity in construing Jones Act); N.Y. at 356.

See Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 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. 321 18 See infra notes 396411 and accompanying text (discussing arguments against case-specific deference to executive branch). 188(3). The discretion not to recognize foreign rights was captured in the word comity. Close, Despite American Banana, U.S. courts soon began to apply U.S. antitrust law extraterritorially on the basis of effects. See Empagran, 542 U.S. at 168 ([T]his approach is too complex to prove workable.). Recognition and restraint are often related. Answers in Genesis, 556 F.3d at 467 (Abstention from the exercise of federal jurisdiction is the exception, not the rule. (quoting Colorado River, 424 U.S. at 813)); Royal & Sun All., 466 F.3d at 95 ([C]ircumstances that routinely exist in connection with parallel litigation cannot reasonably be considered exceptional circumstances, and therefore the mere existence of an adequate parallel action, by itself, does not justify the dismissal of a case on grounds of international comity abstention.); AAR Intl, 250 F.3d at 518 (stating district court must consider the factors listed in Colorado River and its progeny and determine whether in light of those factors exceptional circumstances exist warranting abstention). 249 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.). .); Restatement (Third) of the Foreign Relations Law of the United States 114 (Am. a, at 132 (2006) (Declination of jurisdictionwhether via lis pendens or via forum non conveniensis closely related to recognition and enforcement of foreign judgments.); see also Calamita, supra note 37, at 650 (placing doctrines along continuum). Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978). Unif. Having focused in Part II on how the principle of international comity is incorporated in U.S. domestic law, this Article now turns in Part III to consider comitys relationship with international law. 357 A pragmatic assessment of those decisions adopting an interest balancing approach indicates none where United States jurisdiction was declined when there was more than a de minimis United States interest. Third, international comity is not international law, though the uses of international comity have changed in relation to changes in international law. 102 1998) (holding act of state doctrine did not apply to decree of unrecognized Federal Republic of Yugoslavia). of Iowa, 482 U.S. 522, 543 (1987) (noting concept of international comity requires particularized analysis of discovery requests). Close But Marshall emphasized that the territorial sovereign was capable of destroying this implication and of subjecting such vessels to the ordinary tribunals. There are treaties and supranational regulations governing the jurisdiction of courts, the enforcement of foreign judgments, and the question of applicable law. 379 To be clear, this distinction relates to the range of facts a court may consider in applying a doctrine and to the corresponding degree of discretion the court enjoys. 272 Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. Lower courts applying the doctrine of foreign state compulsion in antitrust cases have noted its basis in comity. Close 398 See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. 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). 24 237 Childress, supra note 20, at 51. 322 338 384 115

519, 590 (1839) (recognizing foreign corporation is but the usual comity of recognising the law of another state). 242 C. The enforcement of all forfeitures, penalties and fines connected with national internal revenue taxes D. Close 386 . 131 Due process of law 2. at 138. 96 As a Principle of Restraint. 183 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. Close A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide. Close, Categorizing the international comity doctrines in this way reveals how each of them fits into a larger picture. 64

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. 283, 353 (1822). Co. of N.Y. v. United States, 304 U.S. 126, 137 (1938) (What government is to be regarded here as representative of a foreign sovereign state is a political rather than a judicial question, and is to be determined by the political department of the government.). 283, 353 (1822) (characterizing foreign sovereign immunity as resting on principles of public comity and convenience). International law requires some immunities, 87

Because the doctrine of forum non conveniens allows U.S. courts to restrain their exercise of jurisdiction in deference to foreign courts, it is properly considered a doctrine of international comity. 364 133 S. Ct. 1659, 1664 (2013) (quoting Arabian Am. See infra section II.A (describing prescriptive comity). 266 377 . 391 L. Rev. John B. Bellinger III, The Dog that Caught the Car: Observations on the Past, Present, and Future Approaches of the Office of the Legal Adviser to Official Acts Immunities, 44 Vand. Although Justice Scalia argued for a balancing of interests in Hartford, 509 U.S. at 81819 (Scalia, J., dissenting), he retreated in Spector to a more characteristic preference for categorical rules. of being able to enter a political judgment in the court in cases where we would rather not do anything at all, but where there is enormous pressure from the foreign government that we do something).

In contrast to state-law rules on the conflict of laws, the act of state doctrine has no public policy exception. 41 Tr.

The distinction between rules and standards is a continuum, not a divide, and many doctrines combine aspects of rules and standards.

2001) ([1962 Uniform Act] is a codification of the common-law doctrine of comity applied to foreign nation money judgments.). Close Looking to principles of international comity in such cases certainly makes more sense than looking to principles of federalism. 356 . 78 But the immunities of other foreign government officials from suit in U.S. courts are otherwise governed by federal common law. The justification for extending comity to foreign judgments was the same. at 409. Close 212 Close See Restatement (Third) of the Foreign Relations Law of the United States 441 (restating doctrine of foreign state compulsion); see also Anthony J. Colangelo, Absolute Conflicts of Law, 91 Ind. 254 35 252 (rejecting idea of discretionary authority to avoid parallel proceedings and stating no federal court can escape from its duty, in any case, which congress has confided to its jurisdiction). Close Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. For example, these include personal jurisdiction based on service of process while the defendant is temporarily present in the forum, personal jurisdiction based on the nationality or domicile of the plaintiff, and personal jurisdiction based on the presence of property in the forum. Close Modern courts and commentators have repeated the criticism. Close Most recently, in Mujica 88 339 322 Id. We did not hold that plaintiffs failed to allege violations of international law in the first instance.). 12 130 7 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 TermForeword: The Justices of Rules and Standards, 106 Harv. 1987). 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. Law Inst. For example, Quackenbush v. Allstate Insurance Co. distinguished Burford abstention from forum non conveniens on the ground that abstention was concerned with comity and federalism, principles involving deference to the paramount interests of another sovereign, whereas the doctrine of forum non conveniens reflected a broader range of considerations, most notably the convenience to the parties. Courts have declined to defer to the Executive even with respect to doctrines like forum non conveniens that expressly incorporate public interest factors. Id.

The same could be said of other areas in which comity has been employed as a standard rather than a rule. 2005 Uniform Act, supra note 106, 4(c)(3) (emphasis added). Story, supra note 54, 30, at 36. See supra notes 7491 and accompanying text (discussing Huber and Story). Close See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 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. Jansen Calamita, Trey Childress, and Anne-Marie Slaughter are concerned only with adjudicative comity. Although Chief Justice Marshall did not use the word comity, Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade later that the doctrine expounded in that case stands upon principles of public comity and convenience.

276 See id. 54 Close Close 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. Close . 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). 365 282 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). But the Supreme Court has specifically rejected a case-by-case approach to extraterritoriality. . 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. Court for S. Dist. 275 Close. 196 Corp. v. M.V. 129 160 145 See 509 U.S. 764, 799 (1993) (concluding if defendants could comply with both U.S. and foreign law, there was no need to address other considerations that might inform a decision to refrain from the exercise of jurisdiction on grounds of international comity). See id. See supra notes 152154 and accompanying text (discussing emergence of foreign sovereignty rationale). See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. Y.B. 203 Close 292 International law is distinct from international comity, which comprises legally nonbinding 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.

at 165. is compromised by case-by-case, selective determinations of jurisdiction by the Executive. 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 and the United States is responsible to other states for violating it. Further, state courts were not obliged to follow the Supreme Courts decision in Hilton requiring reciprocity as a condition for recognizing foreign judgments. Joseph Story, Commentaries on the Conflict of Laws 28, at 34 (2d ed. See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir. Abelesz v. Magyar Nemzeti Bank, 692 F.3d 661, 684 (7th Cir. Close See, e.g., In re Berlamont, No. as well as a discretionary statute authorizing judicial assistance to foreign tribunals. Id. Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. 300 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 comity. Close (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. Two assertions about international comity stand out: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Courts in the United States are quite reluctant to do this, and frequently cite international comity as a reason to exercise restraint.

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of Iowa, 482 U.S. 522, 54142 (1987).

Close See also infra Part III (discussing extent to which doctrines of foreign state immunity and foreign official immunity also reflect international law). 145 and still others preemptive federal law? But once comity came to be seen exclusively in terms of deference to the paramount interests of another sovereign, 213, 254 (acknowledging Courts holding in Samantar that federal common law now controls these issues). , it was generally assumed that the recognition of foreign judgments was governed by state rather than federal law.

See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). . 84 . Belg. Webinternational comity taxation. 190 314 This discretionary aspect of international comity has been responsible for much of the criticism that the doctrine has attracted over the years. to see if they are sufficient to overcome the strong presumption in favor of the plaintiffs choice of forum. Story, supra note 54, 38, at 41. 143 80 . This Article contributes to the ongoing debates over the shape of those doctrines by showing that international comity may be expressed in rules rather than standards and may be exercised by courts rather than the Executive. 53 Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. See id. Close

Close 137 236

164, 167 (1870). 158 Close .

362, 370 (1824) (The laws of no nation can justly extend beyond its own territories, except so far as regards its own citizens.); see also John H. Knox, A Presumption Against Extrajurisdictionality, 104 Am. (We are bound to give effect to the assignment [of personal property]. 2008) (Since Palestine is not recognized, under United States law, as a foreign state, the defendants cannot derivatively secure sovereign immunity as agencies and/or instrumentalities of Palestine.); Knox v. Palestine Liberation Org., 306 F. Supp. 186 .

Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 11 cmt. and then only upon a showing of exceptional circumstances. Close 2013); Khulumani v. Barclay Natl Bank Ltd., 504 F.3d 254, 261 (2d Cir. Close Close, Judicial assistance to foreign tribunals under 1782, on the other hand, is clearly discretionary. . Close Close WebTRUE 6.International comity connotes courtesy between nations. Close

665, 678 (La. Close 220 is compromised by case-by-case, selective determinations of jurisdiction by the Executive). 3493 Before the Subcomm. As Curtis Bradley notes, [s]ome forms of deference may be more defensible than others. See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. Huber wrote that nothing could be more inconvenient to commerce and to international usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law. 214 1782. 245 Close Conflicts methodologies vary from state to state. Id. v. United States, 424 U.S. 800, 817 (1976); see also Lexmark Intl, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (quoting Colorado River); Sprint Commcns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (quoting Colorado River). See, e.g., Morrison v. Natl Austl. 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. 186 v. Tremblay, 223 U.S. 185, 190 (1912) (holding Supreme Court had no jurisdiction to review state courts decision on recognition of foreign judgment). Storys first maxim combines Hubers first two, Storys second maxim restates a part of Hubers first, and Storys third maxim tracks Hubers third. By contrast, the comity of nations (which Scalia equated with prescriptive comity) was exercised by legislatures when they enact laws.

81 1991) (Breyer, C.J.) 95 I, ch. 318 2d 522, 544 (S.D.N.Y. Quackenbush v. Allstate Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (defining prescriptive comity as respect sovereign nations afford each other by limiting the reach of their laws). Each began with the assumption that sovereignty was strictly territorial, each made exceptions based on mutual benefit, and each maintained the discretion of the territorial sovereign to deny such exceptions if it so chose. 97 Id.

104 . Close, Sometimes, U.S. courts are asked to address the possibility of parallel foreign proceedings not by dismissing the U.S. suit but by enjoining the foreign proceeding. 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. Pamela K. Bookman, Litigation Isolationism, 67 Stan. 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. at 54344. Close, This definition of comity is both incomplete and ambiguous.

To attempt it through the process of case-by-case adjudication is a recipe for endless litigation and confusion.). Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.). Close . Hub Ltd. v. Porsche Auto. 557 (1992); Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. 1782(a) (2012) (emphasis added). There are exceptions for express waivers of immunity, suits based on a commercial activity, expropriation in violation of international law, property in the United States, torts in the United States, agreements to arbitrate, and maritime liens, Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (applying presumption against extraterritoriality to legislation of Congress). Both territorial sovereignty and respect for foreign rights were of particular concern in the Netherlands, which had recently won independence from Spain but whose status as a trading nation created a pressing need to treat foreigners fairly. Close So much has been written about international comity that it would be impossible to respond to every argument in a single article. (Applied prospectively, federal courts evaluate several factors, including the strength of the United States interest in using a foreign forum, the strength of the foreign governments interests, and the adequacy of the alternative forum.). 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. 142 196 116 This Article defines international comity as deference to foreign government actors that is not required by international law but is incorporated in domestic law. In an excellent review of the Roberts Courts foreign relations law cases, Harlan Cohen concludes that the current Court is less and less inclined to trust the executive branch. ), Judgment, 2012 I.C.J. at 735 (Kennedy, J., dissenting). 167 Close 375 (1919), reprinted in Ernest G. Lorenzen, Selected Articles on the Conflict of Laws 13662 (1947) (discussing Hubers views on the conflict of laws and their influence); Hessel E. Yntema, The Comity Doctrine, 65 Mich. L. Rev. Rev. See id. The Supreme Court has noted that comity and parity concerns may be important as touchstones for a district courts exercise of discretion in particular cases. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261 (2004). Although Empagran adopted Justice Scalias notion of prescriptive comity, its approach was quite different from his Hartford dissent. 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). 6 164 Close

460, 487 (N.Y. 1820) (Kent, J.)