Co., 658 F.2d 903, 908 (2d Cir. Doctrines that defer to foreign courts, like the recognition of foreign judgments, the doctrine of forum non conveniens, and the limits on personal jurisdiction and discovery, are expressions of adjudicative comity. .); see also supra notes 107115 (discussing original understanding of sovereign immunity as comity). 155 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.). For a discussion of the Supreme Courts treatment of amicus briefs filed by foreign governments, see Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. . 287

12112(c)(1) (incorporating defense similar to that in Title VII). Close 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. Such discretion invades the province of the judiciary and may harm, rather than advance, U.S. foreign relations. 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. J. Transnatl L. 911, 969 (2011) ([T]he Executive Branch engages in undelegated lawmaking when it makes head of state immunity determinations.). As noted above, the Court first used international comity this way in American Banana Co. v. United Fruit Co. 52 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. See infra Part III (explaining differences between international comity and international law). Oetjen v. Cent. See Cohens v. Virginia, 19 U.S. (6 Wheat.) Close, Finally, even when American courts have personal jurisdiction and decide to exercise it, they sometimes employ adjudicative comity as a principle of restraint to moderate that exercise. Although the Third Restatement took the position that such interest balancing was required by customary international law, International law binds the United States and gives rise to international responsibility. 203 Id. . 191 . See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. 50 Close, U.S. courts have sometimes used other tools to restrain the reach of U.S. statutes. Law Inst. For further discussion, see infra notes 228258 and accompanying text (discussing adjudicative comity as principle of restraint). (misquotation). As with the recognition of foreign law, INTERNATIONAL COMITY AND INTERNATIONAL LAW. , it was generally assumed that the recognition of foreign judgments was governed by state rather than federal law. But the Supreme Court has specifically rejected a case-by-case approach to extraterritoriality. 311 See Daimler, 134 S. Ct. at 750 (considering personal jurisdiction over claim brought by foreign plaintiffs against a foreign defendant based on events occurring entirely outside the United States); Goodyear, 131 S. Ct. at 2850 (considering personal jurisdiction in case involving bus accident outside Paris); J. McIntyre Mach., Ltd. v. Nicastro, 131 S. Ct. 2780, 2785 (2011) (plurality opinion) (Kennedy, J.) Close 1999) ([I]n the interests of international comity, we apply the same general principles [of Colorado River abstention] with respect to parallel proceedings in a foreign court.). 265 Probs., Summer 2008, at 19, 20 (Whereas once courts justified applying foreign law out of deference to foreign sovereigns, courts later justified their decisions out of deference to the autonomy of private parties or to the political branches.). 333 16 at 278990 (plurality opinion) (Kennedy, J.)

Close Close, A larger number of circuits have recognized a doctrine of abstention based on international comity. 368 What changes is the time at which the question is asked. 51 28 Close . WebThe international scope of domestic regulation is usually determined by looking closely at the principles of public international law and comity. to violate the law of the foreign country in which such workplace is located. 48 [T]he argument for deference to the executive is that it has more expertise than the courts in foreign relations and that the executives accountability for foreign relations is more important than the courts independence from political pressure. 111 It seems more likely that Mansfield, Kent, and Story correctly read Huber to allow discretion not to enforce foreign law.

1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). 14mc00190 (JSR), 2014 WL 3893953, at *1 (S.D.N.Y. Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, Rep. 141, 141; 1 Black W. 257, 258 (K.B.) But the But the courts are free to draw for themselves its legal consequences in litigations pending before them. each of which allows a district court to stay or dismiss a case over which it has personal jurisdiction. 1350 (2012). See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. 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. Lower courts have generally applied international law to decide if a defendant is a foreign state under the Act, Close Close Close Recognition and restraint are often related. 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. 87 at 735 (Kennedy, J., dissenting). See, e.g., Royal & Sun All. at 405 (finding it unnecessary to address possibility of exception for cases in which the Executive Branch has represented that it has no objection to denying validity to the foreign sovereign act). 92 . 22 Modern courts and commentators have repeated the criticism. Historically, however, comity had as much to do with private interests in convenience as with the public interests of other sovereigns. 354 See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423 (2d Cir.

Close 382 283 363 State courts consider the uniform acts to be codifications of international comity, Scholars have differed over the importance of slavery in shaping Storys views of comity. 295 234 Tectonics Corp., Intl, 493 U.S. 400, 405 (1990) (noting act of state doctrine bars U.S. courts from declar[ing] invalid the official act of a foreign sovereign performed within its own territory). The Supreme Court captured the distinction in its 1938 Guaranty Trust decision. Close 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. 14 at 1207. 396 42 U.S.C. See Restatement (Third) of the Foreign Relations Law of the United States 403 cmt. 144 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. 343 330 Only a few international comity doctrines clearly constitute federal law binding on state courts, including foreign sovereign immunity, due process limitations on personal jurisdiction, and the act of state doctrine. Close, On the restraint side of the ledger, some courts applying section 403 of the Restatement (Third) of Foreign Relations Law have determined the geographic scope of U.S. statutes on a case-by-case basis. 164, 167 (1870). Ch. . 357 Erie R.R. International law and international comity both mediate the relationship between the U.S. legal system and other nations, but they are fundamentally different. 401 Similarly, when an American court uses international comity as a principle of restraint, it is often because that court recognizes a foreign court as the more appropriate forum, a foreign lawmaker as a more appropriate source of rules, or a foreign government as a sovereign coequal with the United States. Public interests began to play a larger role around the turn of the twentieth century. . 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). 91 16,871) (Story, J.). See Klaxon Co. v. Stentor Elec. The Supreme Court has held that a foreign government may not be recognized as a plaintiff in U.S. courts and simultaneously claim immunity from suit. 16041607 (2012) (providing foreign state immunity from suit subject to specific exceptions). 8, No. Techs., 369 F.3d 645, 651 (2d Cir. 301 Id. Bachelors Starting in the 1970s, some turned to comitynow expressed as a weighing of contacts and interestsas a way of limiting the Sherman Acts reach. 180 263 2014) (reaffirming Matar). 69 70

. Justice Story wrote in his treatise that this comity of nations was founded upon the notion of mutual convenience and utility. Quackenbush, 517 U.S. at 721. A U.S. court must recognize as valid a foreign act to which the doctrine applies, [h]owever offensive to the public policy of this country and its constituent States [the act] may be. See Aetna Life Ins. Tr. and still others preemptive federal law? a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency). 164 Close depends upon what our greatest jurists have been content to call the comity of nations); see also Croudson v. Leonard, 8 U.S. (4 Cranch) 434, 437 (1808) (noting spirit of comity lies behind enforcement of foreign judgments). American courts in the nineteenth century tended to follow Huber in this regard.

Since Intel, lower courts have recognized international comity as the underlying basis of 1782, 398 Close

([T]he doctrine of immunity for foreign sovereigns[] has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.); see also Republic of Argentina v. NML Capital, Ltd., 134 S. Ct. 2250, 2255 (2014) (Foreign sovereign immunity is and always has been, a matter of grace and comity . 198 courts have refused to permit persons who have acted in bad faith to rely on the defense.). 349

Recent scholarship suggests that the Supreme Court as a whole has become more skeptical of deference to the executive branch in foreign relations cases. See 28 U.S.C. 100 Posner and Sunstein favor such deference, while this Article argues that it not only compromises judicial independence but also harms U.S. foreign relations by putting the Executive in the uncomfortable position of having to make decisions that may displease foreign governments. . at 16364. See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 41112 (1964) (rejecting reciprocity requirement for foreign governments privilege of bringing suit in U.S. courts); Restatement (Second) of Conflicts of Laws 6 cmt. Professor of Law, University of California, Davis, School of Law. Close, Scottish lawyers brought Hubers ideas to Britain, where Lord Mansfield adopted them in his conflicts decisions. This Article proceeds in four parts. Y.B. 1971) (noting contract issues are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties). 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. Even in Storys day, Samuel Livermore called the comity of nations a phrase, which is grating to the ear, when it proceeds from a court of justice. 309 (quoting Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). . Campbell McLachlan has astutely observed that lis pendens does not require adoption of a first-seized rule. Id. 150 . Close U.S. courts exercise adjudicative comity as a principle of recognition when they give effect to foreign judgments. Close passing on the validity of foreign acts of state may hinder rather than further this countrys pursuit of goals. 123 217 Law Inst., Tentative Draft No. See infra notes 404410 and accompanying text (noting purpose of FSIA to transfer foreign state immunity determinations to courts). 15 380, 437 (2015) (The Court is skeptical of the executive branchs claims that it knows better, that it should not be second-guessed, and that it needs room to maneuver in a dangerous world.); Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign Relations Law, 128 Harv. Close 270 Neither myth withstands scrutiny. .

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.). For an argument that U.S. courts should adopt a similar rule, see Parrish, supra note 18, at 26977 (arguing for stay in favor of action first filed unless manifest injustice would result). But customary international law requires the exhaustion of local remedies in domestic courts only before a claim is brought in an international tribunal. Id. 23 84 Close 6 11, 51 (2010); see also Lawrence Collins, Comity in Modern Private International Law, in Reform and Development of Private International Law 89, 110 (James Fawcett ed., 2002) (The vast amount of material [on comity] cries out for some synthesis. Id. 63 Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.). Al-Abood v. El-Shamari, 217 F.3d 225, 232 (4th Cir. 322 Further, state courts were not obliged to follow the Supreme Courts decision in Hilton requiring reciprocity as a condition for recognizing foreign judgments. 190 Finally, Part IV challenges two of the leading comity myths: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Close The Article defines international comity in a way that is both clearer and more comprehensive than the Supreme Courts famously ambiguous statement in Hilton. Close 905, 909 (S.D.N.Y. at 164, 165, 169. Corp., 43 F.3d 65, 75 (3d Cir. Law Inst. See supra note 195 and accompanying text (discussing cases applying section 403). Recognition automatically confers the privilege of bringing suit in U.S. courts as a matter of comity, at least in the absence of a state of war with the United States. v. H. Comm. Rep. 3, 51 (Feb. 14) (discussing head-of-state immunity). 275 Close 209 242 569, 596 (La. 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. Because of its expertise in foreign relations, the executive branch is in a better position to understand the benefits of foreign reciprocation or the likelihood and costs of retaliation than the judiciary. Id. The Court has also told district courts to engage in a comity analysis when considering the discovery of evidence abroad for use in U.S. courts Bank Ltd., 130 S. Ct. 2869, 2887 (2010) (Scalia, J.) Close Since the start of the twentieth century, American courts have invoked the public interest rationale for comity in other areas of law too. The scope of taxation is regarded as comprehensive, plenary, unlimited and supreme. 409 Techs., Inc., 369 F.3d 645, 652 (2d Cir. 28 U.S.C. It was easy to justify comity as a principle of recognition on grounds of convenience because both parties to a contract had an interest in having it be enforceable and, by extension, in the enforceability of judgments based on the contract. 2005 Uniform Act, supra note 106; 1962 Uniform Act, supra note 106. 33 as well as a discretionary statute authorizing judicial assistance to foreign tribunals. 62 See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 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. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. 152 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. at 761 n.19 (citing Perkins v. Benguet Consol. 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. 307 See infra notes 361362, 393395 and accompanying text (discussing Posner and Sunsteins argument). See, e.g., Verlinden B.V. v. Cent. In summary, prescriptive comity operates as a principle of recognition in American law through state conflicts rules and the federal act of state doctrine. See 28 U.S.C. 300 11 See Restatement (Third) of the Foreign Relations Law of the United States, ch. 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 Close note at 591 (Am. Id. Council, Inc., 509 U.S. 155, 174 (1993) (noting presumption has a foundation broader than the desire to avoid conflict with the laws of other nations); Smith v. United States, 507 U.S. 197, 204 n.5 (1993) (rejecting argument presumption does not apply where there is no risk of conflict with foreign law).

159 165 Id. Web1. 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. .). 159 In this sense, the FSIA is no different from state statutes governing the recognition of foreign judgments, which similarly codify rules of international comity for courts to apply. Close 340 Hilton articulated clear rules for the enforcement of foreign judgments in the United States: [W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh. See Crawford, supra note 24, at 157 (noting while some countries allow recognized governments to sue in local courts, great caution is needed in using municipal cases to establish propositions about recognition in general international law).

Close In any event, that is certainly how the doctrine of comity developed in England and the United States. (forthcoming 2016) (manuscript at 748) (on file with the Columbia Law Review) (discussing doctrine of foreign state compulsion). 207 176 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. See id. See Flomo v. Firestone Nat. 38, at 42. Wuerth, supra note 383, at 953. 32 278 Close This Article takes a different approach. 295 Close 256 306 L. Rev. Nations were bound by the voluntary law of nations but were free to withdraw from the customary law of nations by giving proper notice. 132 245 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. Huber, supra note 74, at 164; see also Story, supra note 54, 25, at 31 (No nation can. 293 The act of state doctrine operates as a rule rather than a standard, 319 Close. As a principle of restraint, adjudicative comity operates through a multitude of doctrines that limit the exercise of U.S. courts jurisdiction, often with the aim of avoiding multiple proceedings. The reasons for this are the ordinary reasons for Chevron deferencethat an ambiguous statute should generally be read as a delegation of interpretative authority to an agency that administers it and that administrative agencies have special expertise with respect to statutory goals and how best to achieve them. Furthermore, prescriptive comity is exercised by courts. . 230 In some areas of foreign relations law todaylike foreign sovereign immunity and prescriptive jurisdictionone may think of an international law core and a comity penumbra, while in other areas all of the rules are rules of comity alone. (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).