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Close 1782 (2012), U.S. courts may recognize foreign proceedings by providing judicial assistance with discovery, but courts will exercise restraint when discovery might in fact hinder the foreign proceeding. See id. Milbank LLP New York City Peter H. Blessing, Esq. v. GE Med. The Supreme Court has looked to international comity to reinforce constitutional due process limitations on personal jurisdiction. See Restatement (Third) of the Foreign Relations Law of the United States, ch. w3TPI2T0 BC#=3\. 398 Close Congress has the constitutional power to declare war. To be sure, the convenience rationale for comity was not exclusive in the nineteenth century. w3TPI2T0 BC#=3\. 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. Close Some doctrines, like forum non conveniens, may properly take the form of standards rather than rules. Comity in international law, Paul, J. R. (1991). Close 168 See 28 U.S.C. Close (invoking unique genius of our Constitution in establishing two orders of government). 2013). Inherent power of sovereignty Essentially a legislative function For public purposes Territorial in operation Tax exemption of government The. The lower courts approach to extraterritorial acts of state is more of a standard, calling for an evaluation of the foreign acts consistency with U.S. policy in each case. 74 Close, This Article uses its categorization of international comity doctrines to challenge two enduring myths about comity: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. 166 246 U.S. 297, 30304 (1918). 205 Whether a doctrine takes the form of a rule or a standard is a separate question from whether that doctrine binds the court as a rule of law. American courts generally apply the same choice-of-law rules in interstate and international cases. Neither myth withstands scrutiny. . . 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). A court has no discretion to decide on a case-by-case basis whether the purposes of foreign state immunity would be served by its application. 30, at 36. See Socit Nationale Industrielle Arospatiale v. U.S. Dist. Historically, given the differences in corporate profit tax rates across jurisdictions, companies have manipulated pricing to reduce their total tax, The article argues that international tax law is not a recent law born in the 1920s, it has always existed. U.S. courts have also looked to comity when considering whether to enjoin parallel proceedings in a foreign court. Close 97 Close, The Eleventh Circuit, however, has articulated a broader version of the doctrine, whichcontrary to Colorado Riverdoes not require a showing of exceptional circumstances but instead considers: (1) a proper level of respect for the acts of our fellow sovereign nationsa rather vague concept referred to in American jurisprudence as international comity; (2) fairness to litigants; and (3) efficient use of scarce judicial resources. 332 See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir. S.S. Rana & Co. Second, international comity is not just deference to foreign acts; it is deference to foreign government actors, a phrase that captures the use of international comity with respect to a foreign court prior to judgment, as well as the use of international comity in relation to foreign governments as plaintiffs or defendants in U.S. courts. See WestlawNext, http:// See Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.); Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943) (holding determination of state immunity must be accepted by the courts as a conclusive determination by the political arm of the Government). Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. at 164, 165, 169. The modern presumption against extraterritoriality, for example, has two rationales: (1) [i]t serves to protect against unintended clashes between our laws and those of other nations which could result in international discord; 28 U.S.C. It may thus also serve as a modern instrument of "civilization ." As closer analysis will show, the doctrine is multifaceted. Jurisdiction to prescribe is also distinct from jurisdiction to enforce. See id. Justice Ginsburg noted that general jurisdiction under the Brussels I Regulation is limited to the place where the defendant is domiciled and that expansive U.S. views of general jurisdiction had impeded the negotiation of international agreements on jurisdiction and judgments. +wCLGNMU}Pk|*95?Smxs6|:+q,}"'j!MYGxBz:XFi5^{='IN[6*V Fo@kbD4v^ i3$'q+1cU4*y.>21 198 Close 1827) (Porter, J.)) Techs., Inc., 369 F.3d 645, 652 (2d Cir. See Ramsey, supra note 19, at 896 n.16 (I speak here and throughout this Article only of international comity used in connection with the effect-of-foreign-acts inquiry.). at 1238. 17 Close, These rules were generally followed by state courts, and have been codified in two uniform state acts that govern the enforcement of most foreign judgments in the United States today. 2071, 2078 (2015). endstream (citing Huber). Close Close 79 Close, Scottish lawyers brought Hubers ideas to Britain, where Lord Mansfield adopted them in his conflicts decisions. Lower courts have continued to rely on comity to enforce foreign acts of state not covered by the doctrine because they were not fully performed within the foreign states own territory. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 43637 (1964). See, e.g., Republic of Austria v. Altmann, 541 U.S. 677, 696 (2004) (citing Dole Food Co. v. Patrickson, 538 U.S. 468, 479 (2003)). Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. . endstream 168 The request for discovery may be made by the tribunal itself or by any interested person. Id. which requires a showing of exceptional circumstances after consideration of several factors. 28 U.S.C. If international comity is deference to foreign government actors, then one may begin by dividing the comity doctrines into three categories based on the actors to whom deference is given: deference to foreign lawmakers is prescriptive comity; deference to foreign courts is adjudicative comity; and deference to foreign governments as litigants is sovereign party comity. Within each of these categories, one must further distinguish based upon the function of the doctrine. 371 note at 17 (Am. w3TPI2T0 BC#=C3\. . ,.. The doctrine provides that American courts will not question the validity of a foreign act of state fully performed within the states own territory. No. See id. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). doctrines that considered private interests were excluded almost by definition. 28 U.S.C. The Court has also expressly rejected reciprocity as a condition to a foreign governments privilege of bringing suit in U.S. courts. 1827) (Porter, J.)) The Second Circuit has looked to principles of comity to determine whether to recognize foreign acts of state having extraterritorial effect. endstream 2010) (en banc). See infra section II.C (describing sovereign parity comity). 10, art. Close 261. Close Close 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. 145 w3TPI2T0 BC#=C3\. 407 2015) (Understood correctly, however, the prior opinion imposed an exhaustion requirement that limits where plaintiffs may assert their international law claims. To understand the role of international comity in American law today, one must have some idea of where it came from and how it developed. 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. 79 75 U.S. courts exercise adjudicative comity as a principle of recognition when they give effect to foreign judgments. 154 Some of those exceptions are mandatory. Corp. v. M.V. % No. Close This suggestion drew a sharp dissent from Justice Kennedy, who noted that judicial independence. Close v. AirScan Inc., a divided panel of the Ninth Circuit dismissed state-law claims in a human rights suit filed against two U.S. corporations on grounds of international comity despite the absence of parallel foreign proceedings. Close Close . Rules further these interests by binding courts to defer to foreign government actors even when they might prefer not to do so. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 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.). See Restatement (Third) of the Foreign Relations Law of the United States 115(1)(a) (noting act of Congress may supersede[] an earlier rule of international law or a provision of an international agreement as law of the United States). Close 362 76 reinforce[s] our determination that subjecting Daimler to the general jurisdiction of courts in California would not accord with the fair play and substantial justice due process demands. (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945))). 93 397 Situs or territoriality - As a rule, the taxing power cannot go beyond the territorial limit of the taxing authority. Part I begins with a brief history of international comity, from its origins in the Netherlands, through its adoption by English common law, to its transmission to the United States. 348 ck^68p'>!!h,{G!WYb! Third, this Article uses its categorization of international comity doctrines to challenge two enduring myths about comity: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Yet Story also thought that the territorial sovereign could trump other considerations and refuse to enforce foreign law: No nation can. To raise revenue 35 constitutional exemption of religious or charitable institutions refers only to- Real property tax 36 agreement . Close 276 21) (The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law. Michael Ramsey has argued that because the phrase international comity adds nothingand obscures muchin judicial discourse, it should be abandoned. 65 . ,.. Law Inst. k (Am. TAX 628 - Tax Planning for the Owner-Manager and Executive Steve Barichello, Ruth Cummings. 4(b). 141), Service incentive leave; conversion to cash, G.R. 24, 1989 (254 Phil. But the immunities of other foreign government officials from suit in U.S. courts are otherwise governed by federal common law. (manuscript at 12). x+ | Oetjen v. Cent. See, e.g., In re Berlamont, No. With these new roles came new justifications for comity, specifically public interests in sovereignty and fostering friendly relations with other nations, which ultimately eclipsed comitys original rationale of commercial convenience serving private interests. This Article also omits enforcement of arbitration clauses, which Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. said rested in part on concerns of international comity. 473 U.S. 614, 629 (1985). endobj Comity avoided that inconvenience. w3TPI2T0 BC#=C3\. 110 Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 18, 1961, 23 U.S.T. Hilton, 159 U.S. at 16364. Another example is discovery under the Hague Evidence Convention. but there were important differences between Hubers first two maxims and his third. In the ATS context, an exhaustion requirement might be justified as an exercise of the federal courts authority to shape the federal common law cause of action. In their letter of transmittal to Congress, the Department of Justice and the Department of State explained: The transfer of this function to the courts will also free the [State] Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity. Close endobj 129 Answer: D. One of the following is not inherent limitations on the exercise of the power of taxation - a. 346 Close 216 176 Turner Entmt Co. v. Degeto Film GmbH, 25 F.3d 1512, 1518 (11th Cir. See Cohens v. Virginia, 19 U.S. (6 Wheat.) 213 U.S. 347 (1909). Close The statute expressly says that a district court may order a person within its district to provide evidence. Close The Supreme Court did not expressly hold that the common law governing immunity was federal common law, but that is how the opinion has been read. 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 16 . endobj v. GE Med. Close 298 n.97 (citing Altmann). To be sure, the executive branch has authority to determine certain facts on which some of the comity doctrines turn. Yet international comity remains poorly understood. 377 1991) (Breyer, C.J.) v. United States, 424 U.S. 800, 818 (1976) (identifying following factors: (1) which court first assumed jurisdiction over the property, if any; (2) inconvenience of the federal forum; (3) desirability of avoiding piecemeal litigation; and (4) order in which jurisdiction was obtained by the concurrent forums); see also Moses H. Cone Meml Hosp. Law Inst., Tentative Draft No. In both of these aspects, sovereign party comity defers to foreign government actors as litigants in U.S. courts. . 292 Stat. Sarei v. Rio Tinto PLC, 550 F.3d 822, 831 (9th Cir. 250 Nature of Taxation Power? See infra notes 316321 and accompanying text (discussing criticism of comity as discretionary). 195 Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, 87, 100 (2003) ([T]he Arospatiale decision improperly de-emphasized system values as compared to particular interests raised in individual cases, and. But he analyzes the doctrines from the perspective of contract theory rather than comity. The word, "Atmanirbhar" is usually thought of as related to the concepts of self-reliance and self-sufficiency. 165 at 52932 (considering whether treaty provided exclusive means for obtaining evidence located in another treaty party). For further examples of criticism of comity, see infra notes 317321 and accompanying text. Id. . 334 See Socit Nationale Industrielle Arospatiale v. U.S. Dist. There is also nothing inappropriate about having doctrines of status-based foreign official immunitylike diplomatic immunity and head-of-state immunityturn on the Presidents recognition of a foreign officials status. 82 endstream . the Ninth Circuit held that in ATS cases where the United States nexus is weak, courts should carefully consider the question of exhaustion, particularlybut not exclusivelywith respect to claims that do not involve matters of universal concern. xs Close, The changing role of international comityattributable to international laws movement away from strict territorialityled in turn to a shift in the justifications for comity. s~)4^ hu_ 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.). endobj + 38 It. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 TermForeword: The Justices of Rules and Standards, 106 Harv. The relationship between international comity and international law is often misunderstood. 121 See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. In Daimler AG v. Bauman, the Supreme Court limited general jurisdiction to instances in which the defendants contacts with the forum state are so continuous and systematic as to render it essentially at home there. 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). Since Intel, lower courts have recognized international comity as the underlying basis of 1782, As this territorial view of sovereignty weakened, however, comity came to play new roles in American law. 78 142 Close, Despite American Banana, U.S. courts soon began to apply U.S. antitrust law extraterritorially on the basis of effects. Ungaro-Benages also adapted the factors relevant to abstention. Close And doctrines that defer to foreign government actors as litigants, like a foreign governments privilege of bringing suit as a plaintiff and its immunity from suit as a defendant, are forms of sovereign party comity. THE PROCESS BY WHICH THE SOVEREIGN RAISES INCOME TO DEFRAY THE EXPENSES OF THE GOVERNMENT IS CALLED- (RPCPA) A. Close (considering personal jurisdiction over a British manufacturer of scrap metal machines). xS**T0T0 BiU" Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)). 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. See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. Source-based taxation First, states must decide how to tax the income that is generated within their borders by foreign-based MNCs. (International Comity. Conduct-based immunity is more complicated and still developing, but the courts of appeals have so far adopted rule-like approaches, with the Fourth Circuit holding that violations of jus cogens norms can never be official acts, Comitys connection to foreign relations has led some to conclude that international comity determinations would be better made by the executive branch than by courts. 2014) (internal quotation marks omitted). Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations First, as Justice Kennedy pointed out in his Altmann dissent, judicial independence is compromised when the Executive has the power to make case-by-case, selective determinations that dictate the outcome of cases. In his 1834 treatise on conflicts, Story endorsed the view that comity is, and ever must be uncertain and must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule. ,.. .). In The Schooner Exchange v. McFaddon, Chief Justice Marshall held that a French warship was immune from suit by its former owners to recover it. (referring to international comity to limit interference with internal affairs of foreign-flag ship); Sosa v. Alvarez-Machain, 542 U.S. 692, 761 (2004) (Breyer, J., concurring in part and concurring in the judgment) (referring to notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement). Is the assessment valid? 15 115 101, 102 (1993) (proposing single omnibus comity inquiry conducted as early as possible in the litigation process). With a proper definition of international comity and an understanding of the full range of American doctrines manifesting that principle, this Article now turns to examine critically some of the conventional wisdom. No one shall be imprisoned for non-payment of tax.FALSE 8. x+ | due process or if the foreign court lacked personal or subject matter jurisdiction. See 28 U.S.C. On the one hand, the executive branch plainly has authority to make some decisions that affect the application of international comity doctrines. For discussions of international comity in English law, see generally Adrian Briggs, The Principle of Comity in Private International Law, 354 Recueil des Cours 65 (2011) (surveying international comitys application in English caselaw); Collins, supra note 20, at 95110 (discussing manifestations of international comity in English law). Colo. River Water Conservation Dist. xs 31 0 obj 167 Close 352 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. J. Intl L. 351, 352 (2010) (For most of U.S. history, the Supreme Court determined the reach of federal statutes in the light of international lawspecifically, the international law of legislative jurisdiction.). v. Chisholm, 268 U.S. 29, 32 (1925) (referring to comity of nations while interpreting Federal Employers Liability Act (quoting American Banana, 213 U.S. at 356)). Close But international laws strictly territorial view of jurisdiction had faded by 1909, 322 Close Restatement (Third) of the Foreign Relations Law of the United States 403 (Am. 374 Close Close 39 See infra notes 382385 and accompanying text (discussing deference to executive branch determinations of immunity). endstream . 173 Some have asserted that this discretion must be exercised on a case-by-case basis and that the executive branch is more competent to apply the doctrines of international comity. 259 Sys. (noting courtesy, comity, or mutual convenience of nations, amongst which commerce has introduced so great an intercourse, has sanctioned the admission and operation of foreign laws relative to contracts). 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. Statement 1: It is so because the State has the supreme power to command and enforce obedience to its will from the people within its jurisdiction. 52 xs <>>>/BBox[0 0 377.76 588]/Length 46>>stream e. Observance of international comity such that property of foreign sovereigns, not subject to taxation. 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). See Restatement (Third) of the Foreign Relations Law of the United States ch. 48 Books You don't have any books yet. (3) Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. 29 121004. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Close See id. Is NO-license driver AUTOMATICALLY criminally liable for car accident? Close Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978). Close In effectuating the purposes of international comity, rules have some advantages over standards. 72 and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (applying presumption against extraterritoriality to legislation of Congress). 401 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. 541 U.S. 677, 70102 (2004). 327 . That system generally leaves the taxation of foreign income to the government within whose territory the activity occurs and thus avoids double taxation entirely. 130 See, e.g., Morrison v. Natl Austl. Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. Close <>stream Close Close <>stream comity is excluded by definition. Close (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). w3TPI2T0 BC#=C3\. See infra Part III (explaining relationship between international comity and international law). 1782(a)). International laws move away from strict territorial sovereignty in the early twentieth century strongly influenced the evolution of international comity in American courts. Project-based employee v. Regular employee. 331 163 8, intro. 29, 2006) ([I]ssues of comity weigh against allowing the discovery in this case.). 1954) (giving effect to State Department letter waiving act of state doctrine). Close Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. A court of this state shall recognize and enforce a liability for a sales or use tax lawfully imposed by another state if the other state extends a like comity to this state. 19 Co., 109 F.3d 1, 8 (1st Cir. Leather Co., 246 U.S. 297, 303 (1918) (holding recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence). 8 0 obj xs . Third, international comity is not international law, though the uses of international comity have changed in relation to changes in international law. 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.). (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.). This comity, Story emphasized, was not the comity of the courts, but the comity of the nation. Close, The supposedly indeterminate nature of comity has long made it an object of criticism. 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 William S. Dodge, After Sosa: The Future of Customary International Law in the United States, 17 Willamette J. Intl L. & Disp. See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. 95. . Much more problematic is judicial deference to the Executive with respect to the outcomes of particular cases. 377 See infra notes 386388, 404410 and accompanying text (discussing FSIA). 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.) ,.. 331 w3TPI2T0 BC#=3\. 277 . <>>>/BBox[0 0 377.76 588]/Length 47>>stream Close 365 When a court construes a federal statute to avoid conflict with international law under the Charming Betsy canon, it does not defer to a foreign government actor but rather to another body of law with a complex relationship to U.S. domestic law. S See, e.g., Am. Samson v. Daway (Case Digest. 1782(a) (2012). July 4, 2012 (690 Phil. 2000) (applying Colorado River abstention to foreign proceedings). Although it is generally omitted from scholarly discussions of international comity, Close A characteristic of taxes which means taxes are assessed with some reasonable rule of apportionment A.
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