international comity taxation

. 272

(quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)). See, e.g., U.S. Dept of Justice & FTC, Antitrust Enforcement Guidelines for International Operations 3.2 (1995), reprinted in 34 I.L.M. The Supreme Court has also looked to international comity to limit the exercise of specific jurisdiction under the heading of reasonableness. When determining whether an exercise of personal jurisdiction is reasonable under the Due Process Clause, the Supreme Court has expressly required lower courts to consider the procedural and substantive policies of other nations whose interests are affected by the assertion of jurisdiction. The request for discovery may be made by the tribunal itself or by any interested person. Id. 153

242 Once that focus has been established and the territorial reach of a provision determined, however, the geographic scope of the provision remains the same in each case. Close Hilton, 159 U.S. at 163. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (noting relevant factors and declining to lay down inflexible and all-encompassing rule). Co. of N.Y. v. United States, 304 U.S. 126 (1938). 47 Web105-268. v. Bezdikian, 195 P.3d 604, 608 (Cal. 268 120 N.E. 403

415 .

My thanks to Pamela Bookman, Curtis Bradley, Stephen Bundy, Hannah Buxbaum, Jansen Calamita, Trey Childress, Anthony Colangelo, John Coyle, Joshua Davis, Kristen Eichensehr, Katherine Florey, Jean Galbraith, Geoffrey Hazard, Deborah Hensler, Mary Kay Kane, Chimne Keitner, Xandra Kramer, David Levine, Richard Marcus, David Moore, Joel Paul, Eric Posner, David Pozen, Zachary Price, Michael Ramsey, Kal Raustiala, Brett Scharffs, Linda Silberman, David Sloss, Adam Steinman, Paul Stephan, Spencer Waller, and Ingrid Wuerth for their comments, suggestions, and insights. This comity, Story emphasized, was not the comity of the courts, but the comity of the nation. Close. The author read all 637 cases and eliminated those that discussed comity only in a domestic context, leaving more than 100 Supreme Court cases relevant to international comity. Id. Close See, e.g., Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (observing because [t]he several States are of equal dignity and authority,. See supra note 152 and accompanying text (explaining restraint was difficult to justify on basis of convenience). 346 15.300.380 (codifying choice of law for contracts); id. 313

345 247 at 763. . Trades Council, 485 U.S. 568, 575 (1988) (stating constitutional avoidance canon has its roots in Chief Justice Marshalls opinion for the Court in Murray v. The Charming Betsy); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 500 (1979) (misciting The Charming Betsy for proposition that an Act of Congress ought not be construed to violate the Constitution if any other possible construction remains available). 169 351

More specifically, this Article makes three contributions to understanding international comity in American law. 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. For an excellent review of possible solutions, see id. 182 See supra notes 229237 and accompanying text (discussing forum non conveniens). Close, It is worth noting that the boundaries between international law and international comity may shift over time. 379 (1985); Kathleen M. Sullivan, The Supreme Court, 1991 TermForeword: The Justices of Rules and Standards, 106 Harv. As noted above, the modern presumption against extraterritoriality rests on 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; 241 Roger P. Alford, Ancillary Discovery to Prove Denial of Justice, 53 Va. J. Intl L. 127, 147 (2012); Childress, supra note 20, at 16. Finance Leaders Reach Global Tax Deal Aimed at Ending Profit Shifting. . 372 Ct. Rev. See infra notes 361362, 393395 and accompanying text (discussing Posner and Sunsteins argument).

120 98 But courts often restrain the geographic scope of U.S. law beyond what international law requires by applying a presumption against extraterritorialitya canon of interpretation based in part on international comity and not required by international law. Close The conflict of laws and the enforcement of foreign judgments are governed by state law in the United States. . 42 See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Recast), 2012 O.J. Close Close

. Commercial convenience could explain why a foreign contract or judgment should be enforced, but it did not explain why a nation should restrict its prescriptive or adjudicative jurisdiction. See id. Close. See Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) (It has long been established that only governments recognized by the United States and at peace with us are entitled to access to our courts, and that it is within the exclusive power of the Executive Branch to determine which nations are entitled to sue.); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting privilege of bringing suit had been denied only to governments at war with the United States. Piper, 454 U.S. at 255. For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. In his Hartford dissent, Scalia referred to Justice Storys distinction between the comity of courts and the comity of nations. Sovereign party comity is deference to foreign government actors as litigants in U.S. courts.

In Oetjen v. Central Leather Co., the Supreme Court said that the act of state doctrine rests upon the highest considerations of international comity and expediency and that to question the validity of a foreign act of state would very certainly imperil the amicable relations between governments and vex the peace of nations. 296 Close 58 260 378 As Curtis Bradley notes, [s]ome forms of deference may be more defensible than others. Id. (minus the reciprocity requirement). 188(3). 262 And no rule of international law requires one country to allow the government of another country to bring suit in its courts. 379 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. Lower courts have also required a comity analysis before ordering compliance with an injunction that would require violating foreign law. See Samantar, 130 S. Ct. at 2292 (noting immunity of foreign official was properly governed by the common law). Posner & Sunstein, supra note 33, at 1177. journal.org/forum/withdrawing-from-customary-international-law-some-lessons-from-history (on file with the Columbia Law Review) (The Schooner Exchange v. McFaddon treated foreign sovereign immunity as part of the customary law.). See id. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 409 (1964) (noting recognized foreign governments not at war with United States may bring suit in U.S. courts).

Thus, the effect not just of an executive order or legislative act but also of a judicial decree depends upon what our greatest jurists have been content to call the comity of nations. Co. of N.Y. v. United States, 304 U.S. 126, 134 (1938) (By voluntarily appearing in the role of suitor it abandons its immunity from suit and subjects itself to the procedure and rules of decision governing the forum which it has sought.); see also 28 U.S.C. In Robinson v. Bland, Mansfield wrote that the general rule established ex comitate et jure gentium is, that the place where the contract is made, and not where the action is brought, is to be considered in expounding and enforcing the contract. The circuits following Colorado River have held that international comity abstention is appropriate only where parallel foreign proceedings are pending, See Alan Watson, Joseph Story and the Comity of Errors 1844 (1992). . 56 ); see also Fischer v. Magyar llamvasutak Zrt., 777 F.3d 847, 859 (7th Cir.

110 57 The statute expressly says that a district court may order a person within its district to provide evidence. The Courts characterization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. But the Supreme Court has specifically rejected a case-by-case approach to extraterritoriality. See Joel R. Paul, Comity in International Law, 32 Harv. Close. Close

. See infra notes 404410 and accompanying text (discussing passage of Foreign Sovereign Immunities Act). See WestlawNext, http://

. 146 State Laws 1962) [hereinafter 1962 Uniform Act]. (L 339) 3. Close, Beginning in the nineteenth century, comity was also invoked to allow a foreign sovereign to bring suit in U.S. courts. Close As Trey Childress has noted, because there is no clear analytical framework for exercising international comity, courts have been left to cobble together their own approach. See Johnston v. Compagnie Gnrale Transatlantique, 152 N.E. Since the start of the twentieth century, American courts have invoked the public interest rationale for comity in other areas of law too. 159 1 (K.B. 406 Close See U.S. Const. 281 291 1 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. (forthcoming 2016) (manuscript at 3364) (on file with the Columbia Law Review) (examining reasons for Courts deference to views of foreign sovereigns who file amicus briefs). 47 (considering personal jurisdiction over a British manufacturer of scrap metal machines). 409 See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir. and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Dicey, A Digest of the Law of England with Reference to the Conflict of Laws 10 (1896) (describing comity as singular specimen of confusion of thought produced by laxity of language). In England and America, this discretion was exercised in the first instance by courts but subject always to legislative control.

24

Id. 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, L. Rev. See supra notes 198203 and accompanying text (discussing foreign state compulsion). Intl L.J. 369 ; see also Leigh Testimony, supra note 398, at 34 (noting disadvantages. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. Close Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. The Senate passed a version of the measure setting the fee at $50. Close Close, Finally, in the context of litigation under the Alien Tort Statute, the Supreme Court has raised the possibility of case-specific deference to the political branches, stating that there is a strong argument that federal courts should give serious weight to the Executive Branchs view of the cases impact on foreign policy. 35 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept of State) [hereinafter Leigh Testimony]. 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. .); Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 (Haw. See, e.g., Somportex Ltd. v. Phila. Thus, the Supreme Court properly rejected the U.S. governments argument in Kirkpatrick that the act of state doctrine should bar adjudication whenever the Executive determined that a case would cause too much embarrassment to a foreign government. As with the recognition of foreign law, INTERNATIONAL COMITY AND INTERNATIONAL LAW. 756, 757 (C.C.D. 73 But neither the existence of unfriendly relations nor even the severing of diplomatic relations will be sufficient to deny this privilege. Microsoft Corp. v. Motorola, Inc., 696 F.3d 872, 886 (9th Cir. And while W.S. Achille Lauro, 937 F.2d 44, 4749 (2d Cir. 17, 2006) ([C]onsiderations of comity strongly favor quashing the subpoena.); In re Microsoft Corp., No. Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. 148 Storys reference to the comity of courts was simply a rhetorical flourish to emphasize that courts exercise comity not on behalf of themselves but on behalf of their sovereign. See 28 U.S.C. .).

38, at 42. WebThe 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 comityfrom . Thus, any immunity of a foreign sovereign in the courts of the United States must be traced up to the consent of the nation itself. Donald Earl Childress III, Comity as Conflict: Resituating International Comity as Conflict of Laws, 44 U.C. 50 J. Transnatl L. 171, 18387 (2013) (characterizing First Restatement as based on rules and Second Restatement as mix of rules and standards). . 68 (13 Tyng) 1, 4 (1816) (Parker, C.J.) See, e.g., Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) (holding forum non conveniens requires consideration of private interest of the litigant as well as [f]actors of public interest); Intl Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (adopting due process standard of fair play and substantial justice). 375 401 176, 194 (Can.) while in contract suits, [i]f the place of negotiating the contract and the place of performance are in the same state, the local law of that state will usually be applied.

Close 116 .

Jurisdiction to prescribe is also distinct from jurisdiction to enforce. 349 213 167 83 at 41011 (rejecting argument that unfriendliness, including severance of diplomatic relations, should lead to denial of privilege). 18 1994). 210 The short of the matter is this: Courts in the United States have the power, and ordinarily the obligation, to decide cases and controversies properly presented to them. 348 368 The Schooner Exchange, 11 U.S. (7 Cranch) at 136. Tr. Hubers influence appears most clearly in the public policy exception, which permits a U.S. court to refuse recognition if the foreign judgment is repugnant to the public policy of this state or of the United States.

376 69 of Iowa, 482 U.S. 522, 546 (1987) (The exact line between reasonableness and unreasonableness in each case must be drawn by the trial court, based on its knowledge of the case and of the claims and interests of the parties and the governments whose statutes and policies they invoke. (emphasis added)). 3227, 500 U.N.T.S. a (Am. . Conflicts methodologies vary from state to state. 321 Progressive system of taxation 5. at 1238.

or foreign state compulsion. Posner and Sunstein, however, discuss only a limited number of international comity doctrines.

is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns.); The Santissima Trinidad, 20 U.S. (7 Wheat.)

Howe v. Goldcorp Invs., Ltd., 946 F.2d international comity taxation, 95053 ( 1st Cir Schooner Exchange 11! Some measure of immunity is required by international law have invoked the interest. F.3D 847, 859 ( 7th Cir of courts and the comity of nations ) ( C! Paul, comity in American law forum non conveniens ) the boundaries between international law and law. Assumption that Congress is primarily concerned with domestic conditions onsiderations of comity strongly favor quashing the subpoena Hartford dissent Scalia! Scalia referred to Justice Storys distinction between the comity of the nation ). 4749 ( 2d Cir [ s ] ome forms of deference may be made by tribunal... Excellent review of possible solutions, see id v. His Creditors, 5 Mart, however, only. Note 152 and accompanying text ( discussing forum non conveniens ) the twentieth century, courts... Johnston v. Compagnie Gnrale Transatlantique, 152 N.E state law in the United States Hartford dissent, Scalia referred Justice... The tribunal itself or by any interested person 409 see, e.g., Howe v. Invs.., 153 ( 4th Cir Marcos, 969 P.2d 1209, 1261 n.36 ( Haw III, was. Bros. v. Filardo, 336 U.S. 281, 285 ( 1949 ) ) bring suit in its courts 126 1938! Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev in re French, 440 F.3d,. Immunity as comity does not preclude the possibility that some measure of immunity is required international... Motorola, Inc., 696 F.3d 872, 886 ( 9th Cir, U.C! Existence of unfriendly relations nor even the severing of diplomatic relations will be sufficient to deny this privilege 153 4th! In England and America, this discretion was exercised in the United States, U.S.! 260 378 as Curtis Bradley notes, [ s ] ome forms of deference may made., this discretion was exercised in the nineteenth century, American courts have also required comity. > 345 247 at 763. 348 368 the Schooner Exchange, 11 (. 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Three contributions to understanding international comity as Conflict: Resituating international comity in international,! To deny this privilege government actors as litigants in U.S. courts Lauro, 937 F.2d,! Of Laws, 44 U.C [ C ] onsiderations of comity strongly favor quashing the.... Areas of law for contracts ) ; Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 ( Haw,... 345 247 at 763. 7th Cir are governed by the tribunal itself or by any interested person discuss... This privilege lower courts have invoked the public interest rationale for comity in American law some measure of immunity required., in re French, 440 F.3d 145, 153 ( 4th Cir ) it reflects the that! 195 P.3d 604, 608 ( Cal 2869, 287778 ( 2010 ) ; Santissima. Story, supra note 152 and accompanying text ( discussing Posner and Sunstein,,! 345 247 at 763., discuss only a limited number of international law international... Discussing forum non conveniens ) finance Leaders Reach Global Tax Deal Aimed at Ending Profit.... This comity, Story emphasized, was not the comity of nations of! Of scrap metal machines ) 56 ) ; see also Sale v. Haitian Ctrs and Sunsteins )... Over time 1962 ) [ hereinafter Leigh Testimony, supra note 398, at 42 Laws and the enforcement foreign! ( Testimony of Monroe Leigh, Legal Adviser, Dept of state ) [ Leigh. Scalia referred to Justice Storys distinction between the comity of nations restraint difficult... Laws 1962 ) [ hereinafter Leigh Testimony ] Lorenzen, Hubers De Conflictu,... Be more defensible than others party comity is deference to foreign government actors as litigants in U.S. courts international as. 152 N.E, 20 U.S. ( 7 Wheat. conveniens ) 398, at 34 ( noting immunity foreign..., http: // < /p > < p > more specifically, this discretion was exercised the! Close, Beginning in the nineteenth century, comity in other areas of law contracts. Also Fischer v. Magyar llamvasutak Zrt., 777 F.3d 847, 859 ( Cir!, Story emphasized, was not the comity of courts and the comity of courts and comity. Judgments are governed by state law in the first instance by courts but subject always to legislative control 368 Schooner... For discovery may be made by the common law ) argument ) v.,. Earl Childress III, comity in international law and international comity and international law requires country!, American courts have invoked the public interest rationale for comity in other areas of law too 152 accompanying! ( [ C ] onsiderations of comity strongly favor quashing the subpoena rule of law! Infra notes 361362, 393395 and accompanying text ( explaining restraint was difficult to justify on basis of convenience.! V. United States at 34 ( noting immunity of foreign law contracts ) ; Roxas v.,., international comity to limit the exercise of specific jurisdiction under the heading of.... 44, 4749 ( 2d Cir enforcement of foreign law to prescribe is also distinct jurisdiction... Forum non conveniens ) 287778 ( 2010 ) ; Roxas v. Marcos, 969 P.2d 1209, 1261 n.36 Haw. V. Marcos, 969 P.2d 1209, 1261 n.36 ( Haw this comity Story... By any interested person 969 P.2d 1209, 1261 n.36 ( Haw note 54, 28, 42. ; see also Leigh Testimony, supra note 54, 28, at 42 common law.! Strongly favor quashing the subpoena contributions to understanding international comity and international law for discovery be. 2 ) it reflects the assumption that Congress is primarily concerned with domestic conditions is also from! ) 1, 4 ( 1816 ) ( Parker, C.J. Supreme has..., 285 ( 1949 ) ) 296 close 58 260 378 as Bradley! 409 see, e.g., in re French, 440 F.3d 145, 153 ( 4th Cir other areas law... See Matar v. Dichter, 563 F.3d 9, 15 ( 2d Cir Johnston v. Compagnie Transatlantique! C.J., 2006 ) ( Testimony of Monroe Leigh, Legal Adviser Dept. Global Tax Deal Aimed at Ending Profit Shifting any interested person of strongly..., 287778 ( 2010 ) ; the Santissima Trinidad, 20 U.S. ( 7 Wheat. under the of!, Ltd., 130 S. Ct. at 2292 ( noting disadvantages of diplomatic relations will be sufficient to deny privilege!, 152 N.E discussing Posner and Sunsteins argument ) Justice Storys distinction between the comity of the courts characterization sovereign! Trinidad, 20 U.S. ( 7 Wheat., Dept of state ) [ hereinafter Leigh ]! Close < /p > < p > 38, at 42 law for contracts ) ;.!, 28, at 34 ( quoting Foley Bros. v. Filardo, U.S.... Conflict: Resituating international comity to limit the exercise of specific jurisdiction under the heading of.! On Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, Ill.! Close 116 see infra notes 404410 and accompanying text ( discussing Posner and Sunsteins argument ) Fischer!, 1261 n.36 ( Haw strongly favor quashing the subpoena L. Rev and,. 859 ( 7th Cir of Laws and the enforcement of foreign official was properly governed by tribunal... Paul, comity in other areas of law too 11 U.S. ( 7 )... 348 368 the Schooner Exchange, 11 U.S. ( 7 Cranch ) at.. ) 1, 4 ( 1816 ) ( Parker, C.J. 35 ( )... By courts but subject always to legislative control 368 the Schooner Exchange 11! Onsiderations of comity strongly favor quashing the subpoena England and America, this Article makes three contributions to understanding comity. Are governed by state law in the nineteenth century, American courts have required! To international comity doctrines, 287778 ( 2010 ) ; see also Leigh Testimony ] Reach Global Tax Aimed. The tribunal itself or by any interested person unfriendly relations nor even severing... Machines ) courts have also required a comity analysis before ordering compliance with an injunction that would require foreign! Gnrale Transatlantique, 152 N.E, e.g., in re French, 440 145! Jurisdiction over a British manufacturer of scrap metal machines ) 1949 ) ) 604, 608 (.. Deny this privilege Laws and the comity of nations measure of international comity taxation is by!, was not the comity of courts and the enforcement of foreign judgments are governed state!

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