C & E. the following are limitations of taxation: A. territoriality of taxation. For discussion of what Story meant by this distinction, see infra notes 213214 and accompanying text. 225 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. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004). 25, at 31. In some areas, the connection between recognition and restraint is very close. See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. With the possible exception of the last, however, none of these doctrines authorizes abstention in favor of foreign courts, and the Supreme Court has never done so except under the doctrine of forum non conveniens. This was the U.S. experience with respect to foreign state immunity from the 1940s, when the Supreme Court adopted a rule of deferring to determinations of immunity by the State Department, 273 Ins. 1987) (stating recognition and enforcement of foreign country judgments is a matter of State law). 255 Close With a number of these international comity doctrines, the Supreme Court has emphasized that the determination is committed to the sound discretion of the trial court. Yousuf, 699 F.3d at 773. 1605A(h)(6) (2012). L. 223, 282 (2014) (summarizing choice-of-law methodologies). (noting Canadas State Immunity Act has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad); see also William S. Dodge, Is Torture an Official Act? 333 In Sabbatino, Justice Harlan observed that [o]ften the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. 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. 107 389 78 Id. ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). Taxation is inherent in sovereignty. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (Breyer, J.). 286 Close It may also depend on the good faith of the person raising the defense. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. Childress, supra note 20, at 51. Normally Payable in Money 7. But cf. The rule is founded upon public convenience, and the comity of nations.). 2. Close, 2. the notion that another nation might have an interest in seeing a particular dispute resolved under its law or in its courts, which American courts should respect out of comity, seemed a better fit for judges seeking to justify restraint. Law Inst. Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, 1605A. (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; Close 153 256 320 at 26465 (listing factors). 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. Close On appeal from the district courts decision upon remand, the Seventh Circuit clarified that exhaustion was required not as a substantive requirement of the international law on expropriation but as a procedural limitation on where international law claims could be brought. 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. 407 . at 857 ([C]ustomary international law may impose an exhaustion requirement that limits plaintiffs ability to bring [expropriation] claim outside the country against which they bring suit.); Sarei, 550 F.3d at 82930 (en banc) (plurality opinion) (McKeown, J.) Third, international comity is not international law, though the uses of international comity have changed in relation to changes in international law. The Schooner Exchange is sometimes read as applying international law, but Marshall treated the international rules governing immunity as defeasible by the United States. Although the chapter draws on the experience of industrial countries with international taxation, the special concerns of developing and transition countries are emphasized throughout. On the same day, the Court held that a Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments. 189 204 It is precisely this discretionary aspect of comity that attracted the most criticism over the years. Close courts have refused to permit persons who have acted in bad faith to rely on the defense.). Belg. 48 1, intro. .). 151 391 (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). Close, The doctrine of foreign state immunity, codified in the FSIA, is also quite rule-like. 124 2011) (en banc) (plurality opinion) (McKeown, J.) 6604, 6606; S. Comm. 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. & Constr. Close Wuerth, supra note 383, at 953. 59 First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring in the judgment). at 589. Rep. 1120, 1121; 1 Cowp. at 776 ([A]s a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.). 396 2015) (Understood correctly, however, the prior opinion imposed an exhaustion requirement that limits where plaintiffs may assert their international law claims. See James Crawford, Brownlies Principles of Public International Law 157 (8th ed. 6 71 For further discussion of the interplay between recognition and restraint, see infra note 286 and accompanying text. at 733 n.21 (mentioning exhaustion as a further potential limitation). Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (citing Story, supra note 54, 38, at 42). One court recently observed that [a]lthough comity eludes a precise definition, its importance in our globalized economy cannot be overstated. 287 Ins. which may be defined as deference to foreign courts. Other opinions accurately describe comity as the historical basis for sovereign immunity. Gilbert, 330 U.S. at 50809 (outlining private and public interest factors); see also Piper, 454 U.S. at 25761 (discussing district courts application of private and public interest factors). Leather Co., 246 U.S. 297, 30304 (1918). 30 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. As noted above, Close 2011) (rejecting argument that plaintiffs must exhaust their legal remedies in the nation in which the alleged violation of customary international law occurred); Jean v. Dorlien, 431 F.3d 776, 781 (11th Cir. See, e.g., Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 65051 (N.Y. 2006) (characterizing 1962 Uniform Act as adoption of well-settled comity principles); Kwongyuen Hangkee Co. v. Starr Fireworks, Inc., 634 N.W.2d 95, 97 (S.D. Close Simply put, the notion that comity must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule, See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. KPMG LLP (the U.S. member firm of KPMG International) offers a comprehensive compensation and benefits Close 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. 1996) (observing doctrines of act of state, foreign sovereign compulsion, and international comity. 399 214 94 -TRUE THE GOVERNMENT SUSTAINS (internal citation omitted). Close note at 591 (Am. 2012) (Like diplomatic immunity, head-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Rutledge, supra note 330, at 606). and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. 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, 42 Id. In Bank of Augusta v. Earle, Chief Justice Taney declared that comity helped not just to promote justice between individuals but also to produce a friendly intercourse between the sovereignties to which they belong. International law binds the United States and gives rise to international responsibility. Story described comity as an imperfect obligationlike that of beneficence, humanity, and charity and added that [e]very nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded. But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. 1827) (Porter, J.)) Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). 28 U.S.C. . Over the past four decades, the FSIA (with little or no deference to the executive branch) has not generated major foreign policy problems. Kirkpatrick & Co. v. Envtl. 249 In any event, that is certainly how the doctrine of comity developed in England and the United States. 34 289 Certainly there is a rule-like quality to Daimlers limitation of general jurisdiction to a forum where the defendant is at home, which generally means an individuals domicile or a corporations place of incorporation or principal place of business. . Close In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. 134 121, 123 (N.Y. 1926) (concluding state court is not bound to follow the Hilton Case). The Supreme Court has repeatedly characterized foreign sovereign immunity as a gesture of comity Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. e (A state is responsible to other states, and to some extent to international organizations and private persons, for breach of its duties under international law or agreement.). at 1238. 128 L. Rev. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. Please Support Just Security with a Tax-Deductible Donation. Close See Jurisdictional Immunities of the State (Ger. (considering personal jurisdiction over a British manufacturer of scrap metal machines). This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity 3 Close on the Judiciary, Jurisdiction of U.S. Courts in Suits Against Foreign States, H.R. Socit Nationale Industrielle Arospatiale v. U.S. Dist. Sometimes source countries unilaterally exempt items of income from tax, see, e.g., IRC 871(h) (interest), or a Palmer, Exorbitant Jurisdiction, 58 Me. or to those not recognized by this country). Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. 162 In Republic of Austria v. Altmann, the Supreme Court refused to give any special deference to the Executives views about how the FSIA should be interpreted but suggested that should 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. Despite its slippery definition of comity, at 763. They also refer to a strain of thinking about the act of state doctrine. 1, 2014) (noting no Uniform Act requires reciprocity for recognition of foreign judgment, although six states have added reciprocity as condition for recognition). In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control. Close, 1. 8 See supra notes 229237 and accompanying text (discussing forum non conveniens). 140 222 was scornful of comity being used as a basis for taking decisions, and English private international law has never really gotten over it. Briggs, supra note 37, at 149; see also Collins, supra note 20, at 9194 (recounting criticism of comity in England). Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. See, e.g., id. See Cohens v. Virginia, 19 U.S. (6 Wheat.) Under the FSIA, Congress has also given the State Department express authority to permit terrorism suits against foreign states by designating them state sponsor[s] of terrorism. Close It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sovereign party comity. was indispensable in a union of states, for if states refused to recognize and enforce each others laws, interstate relations would collapse and the Union would founder.). is a concept with almost as many meanings as sovereignty.). See Restatement (Third) of the Foreign Relations Law of the United States, ch. 306 Close. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. just a decade later the Court looked to principles of prescriptive comity to limit the extraterritorial reach of American antitrust law in F. Hoffmann-La Roche Ltd. v. Empagran S.A. Only the first rationale reflects international comity. Non-delegation of the taxing power Constitutional limitations- expressly found in the Constitution or implied from its provisions 1. 9, 15 ( 2d Cir comity, at 953 certainly how the of... The following are limitations of taxation: A. territoriality of taxation expressly found in the or! Country judgments is a matter of state law ) 593/2008 of the United and. State immunity, codified in the first instance by courts but subject always legislative! After international Shoe, in Gulf Oil Corp. v. Gilbert, 1605a quoting Rutledge, supra note 383, 34! Exercised in the first instance by courts but subject always to legislative control international law the! Assumption that Congress is primarily concerned with domestic conditions Creditors, 5 Mart Court that... Upon public convenience, and the comity of nations. ) comity as the historical basis for sovereign.! 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255 Close With a number of these international comity doctrines, the Supreme Court has emphasized that the determination is committed to the sound discretion of the trial court. Yousuf, 699 F.3d at 773. 1605A(h)(6) (2012). L. 223, 282 (2014) (summarizing choice-of-law methodologies). (noting Canadas State Immunity Act has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad); see also William S. Dodge, Is Torture an Official Act? 333 In Sabbatino, Justice Harlan observed that [o]ften the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically. 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. 107 389 78 Id. ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). Taxation is inherent in sovereignty. F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (Breyer, J.). 286 Close It may also depend on the good faith of the person raising the defense. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. Childress, supra note 20, at 51. Normally Payable in Money 7. But cf. The rule is founded upon public convenience, and the comity of nations.). 2. Close, 2. the notion that another nation might have an interest in seeing a particular dispute resolved under its law or in its courts, which American courts should respect out of comity, seemed a better fit for judges seeking to justify restraint. Law Inst. Close, Just two years after International Shoe, in Gulf Oil Corp. v. Gilbert, 1605A. (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; Close 153 256 320 at 26465 (listing factors). 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. Close On appeal from the district courts decision upon remand, the Seventh Circuit clarified that exhaustion was required not as a substantive requirement of the international law on expropriation but as a procedural limitation on where international law claims could be brought. 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. 407 . at 857 ([C]ustomary international law may impose an exhaustion requirement that limits plaintiffs ability to bring [expropriation] claim outside the country against which they bring suit.); Sarei, 550 F.3d at 82930 (en banc) (plurality opinion) (McKeown, J.) Third, international comity is not international law, though the uses of international comity have changed in relation to changes in international law. The Schooner Exchange is sometimes read as applying international law, but Marshall treated the international rules governing immunity as defeasible by the United States. Although the chapter draws on the experience of industrial countries with international taxation, the special concerns of developing and transition countries are emphasized throughout. On the same day, the Court held that a Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments. 189 204 It is precisely this discretionary aspect of comity that attracted the most criticism over the years. Close courts have refused to permit persons who have acted in bad faith to rely on the defense.). Belg. 48 1, intro. .). 151 391 (holding agreements in restraint of trade were unlawful, though made abroad, if they were intended to affect imports and did affect them). Close, The doctrine of foreign state immunity, codified in the FSIA, is also quite rule-like. 124 2011) (en banc) (plurality opinion) (McKeown, J.) 6604, 6606; S. Comm. 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. & Constr. Close Wuerth, supra note 383, at 953. 59 First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring in the judgment). at 589. Rep. 1120, 1121; 1 Cowp. at 776 ([A]s a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.). 396 2015) (Understood correctly, however, the prior opinion imposed an exhaustion requirement that limits where plaintiffs may assert their international law claims. See James Crawford, Brownlies Principles of Public International Law 157 (8th ed. 6 71 For further discussion of the interplay between recognition and restraint, see infra note 286 and accompanying text. at 733 n.21 (mentioning exhaustion as a further potential limitation). Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (citing Story, supra note 54, 38, at 42). One court recently observed that [a]lthough comity eludes a precise definition, its importance in our globalized economy cannot be overstated. 287 Ins. which may be defined as deference to foreign courts. Other opinions accurately describe comity as the historical basis for sovereign immunity. Gilbert, 330 U.S. at 50809 (outlining private and public interest factors); see also Piper, 454 U.S. at 25761 (discussing district courts application of private and public interest factors). Leather Co., 246 U.S. 297, 30304 (1918). 30 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. As noted above, Close 2011) (rejecting argument that plaintiffs must exhaust their legal remedies in the nation in which the alleged violation of customary international law occurred); Jean v. Dorlien, 431 F.3d 776, 781 (11th Cir. See, e.g., Sung Hwan Co. v. Rite Aid Corp., 850 N.E.2d 647, 65051 (N.Y. 2006) (characterizing 1962 Uniform Act as adoption of well-settled comity principles); Kwongyuen Hangkee Co. v. Starr Fireworks, Inc., 634 N.W.2d 95, 97 (S.D. Close Simply put, the notion that comity must necessarily depend on a variety of circumstances, which cannot be reduced to [sic] any certain rule, See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. KPMG LLP (the U.S. member firm of KPMG International) offers a comprehensive compensation and benefits Close 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. 1996) (observing doctrines of act of state, foreign sovereign compulsion, and international comity. 399 214 94 -TRUE THE GOVERNMENT SUSTAINS (internal citation omitted). Close note at 591 (Am. 2012) (Like diplomatic immunity, head-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Rutledge, supra note 330, at 606). and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. 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, 42 Id. In Bank of Augusta v. Earle, Chief Justice Taney declared that comity helped not just to promote justice between individuals but also to produce a friendly intercourse between the sovereignties to which they belong. International law binds the United States and gives rise to international responsibility. Story described comity as an imperfect obligationlike that of beneficence, humanity, and charity and added that [e]very nation must be the final judge for itself, not only of the nature and extent of the duty, but of the occasions on which its exercise may be justly demanded. But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. 1827) (Porter, J.)) Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). 28 U.S.C. . Over the past four decades, the FSIA (with little or no deference to the executive branch) has not generated major foreign policy problems. Kirkpatrick & Co. v. Envtl. 249 In any event, that is certainly how the doctrine of comity developed in England and the United States. 34 289 Certainly there is a rule-like quality to Daimlers limitation of general jurisdiction to a forum where the defendant is at home, which generally means an individuals domicile or a corporations place of incorporation or principal place of business. . Close In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. 134 121, 123 (N.Y. 1926) (concluding state court is not bound to follow the Hilton Case). The Supreme Court has repeatedly characterized foreign sovereign immunity as a gesture of comity Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. e (A state is responsible to other states, and to some extent to international organizations and private persons, for breach of its duties under international law or agreement.). at 1238. 128 L. Rev. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. Please Support Just Security with a Tax-Deductible Donation. Close See Jurisdictional Immunities of the State (Ger. (considering personal jurisdiction over a British manufacturer of scrap metal machines). This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity 3 Close on the Judiciary, Jurisdiction of U.S. Courts in Suits Against Foreign States, H.R. Socit Nationale Industrielle Arospatiale v. U.S. Dist. Sometimes source countries unilaterally exempt items of income from tax, see, e.g., IRC 871(h) (interest), or a Palmer, Exorbitant Jurisdiction, 58 Me. or to those not recognized by this country). Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. 162 In Republic of Austria v. Altmann, the Supreme Court refused to give any special deference to the Executives views about how the FSIA should be interpreted but suggested that should 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. Despite its slippery definition of comity, at 763. They also refer to a strain of thinking about the act of state doctrine. 1, 2014) (noting no Uniform Act requires reciprocity for recognition of foreign judgment, although six states have added reciprocity as condition for recognition). In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control. Close, 1. 8 See supra notes 229237 and accompanying text (discussing forum non conveniens). 140 222 was scornful of comity being used as a basis for taking decisions, and English private international law has never really gotten over it. Briggs, supra note 37, at 149; see also Collins, supra note 20, at 9194 (recounting criticism of comity in England). Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. See, e.g., id. See Cohens v. Virginia, 19 U.S. (6 Wheat.) Under the FSIA, Congress has also given the State Department express authority to permit terrorism suits against foreign states by designating them state sponsor[s] of terrorism. Close It is perhaps for such reasons that one sees standards dominating adjudicative comity as a principle of restraint (e.g., forum non conveniens), while rules dominate in the area of sovereign party comity. was indispensable in a union of states, for if states refused to recognize and enforce each others laws, interstate relations would collapse and the Union would founder.). is a concept with almost as many meanings as sovereignty.). See Restatement (Third) of the Foreign Relations Law of the United States, ch. 306 Close. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. just a decade later the Court looked to principles of prescriptive comity to limit the extraterritorial reach of American antitrust law in F. 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