international comity taxation

184

. First, it did not state the strictly territorial view of sovereignty but rather tried to solve a problem that territoriality created.

(The general rule is, that a discharge of a contract according to the lex loci contractus is good every where. The Senate passed a version of the measure setting the fee at $50. 240

(misquotation). Quackenbush v. Allstate Ins. Close Residents with a Hawaii drivers license or other state identification would be exempt. . Close Id. 209

International law binds the United States on the international plane, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964).

banking taxation abrahamson Co. of Can. In summary, prescriptive comity operates as a principle of recognition in American law through state conflicts rules and the federal act of state doctrine.

Id.

405 In Oetjen v. Central Leather Co., the Supreme Court said that the doctrine rests at last upon the highest considerations of international comity and expediency.

Close. The second has been strongly advanced by Posner and Sunstein in recent scholarship.

225 But such references to the public interest in fostering friendly relations were rare during the nineteenth century, when the dominant rationale for comity was convenience, mostly conceived in terms of private interests. See Guar. 310 These different ways of exercising adjudicative comity can best be viewed as parts of a larger whole. 404 Apr. 157 Close.

and (2) it reflects the assumption that Congress is primarily concerned with domestic conditions. Close

Law Inst. Close Close In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. See supra note 45 and accompanying text (describing additional rationale for presumption against extraterritoriality).

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. 130 288 at the expense of the interests of other countries. Posner & Sunstein, supra note 33, at 1182. 3. Id.

See id. Member States but prohibited under the Brussels I Regulation (Recast), see The Information Referring to Article 76 of Regulation (EU) No. See U.S. Const.

Close L.J. v. U.S.), Judgment, 1959 I.C.J. See 336 U.S. at 285 ([The presumption] is a valid approach whereby unexpressed congressional intent may be ascertained.

Davis L. Rev.

Law Inst.

542 U.S. 241, 25963 (2004) (rejecting foreign-discoverability rule). Close. Close

& Constr. 11

21 .

at 412 (There are good reasons for declining to extend the principle [of reciprocity] to the question of standing of sovereign states to sue.). be required to sacrifice its own interests in favour of another; or to enforce doctrines which, in a moral or political view, are incompatible with its own safety and happiness, or conscientious regard to justice and duty.).

For a list of exorbitant bases permitted under the laws of the E.U. 243 . In most circuits, international comity abstention is simply an application to foreign proceedings of the federalstate abstention doctrine articulated in Colorado River, Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng.

See Sabbatino, 376 U.S. at 409 ([T]he privilege of suit has been denied only to governments at war with the United States. 302 , it was generally assumed that the KPMG LLP (the U.S. member firm of KPMG International) offers a comprehensive compensation and benefits 235 384 Rep. 99, 78 (Feb. 3) (discussing state immunity for military activities during armed conflict); Arrest Warrant of 11 April 2000 (Dem. In the domestic context, a few other abstention doctrines exist.

Sarei v. Rio Tinto PLC, 550 F.3d 822, 831 (9th Cir.

For status-based immunities, this authority derives from the Presidents recognition power and is uncontroversial, but there is no equivalent constitutional basis for determinations of status-based immunity. revenue Close As a principle of recognition, it allows foreign governments recognized by the United States, and not at war with it, to bring suit in U.S. courts. Still, the principles of recognition and restraint seem useful for grouping the international comity doctrines within each category. 49

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. Riding circuit two years later, Justice Washington invoked Huber for the proposition that by the courtesy of nations, to be inferred from their tacit consent, the laws which are executed within the limits of any government are permitted to operate everywhere, provided they do not produce injury to the rights of such other government or its citizens. 66

Close, With respect to foreign official immunity, the executive branch has claimed authority to make binding determinations since the Supreme Courts 2010 decision in Samantar. 176 1782, Congress authorized district courts to order discovery for use in a proceeding in a foreign or international tribunal. 1919) (1689), reprinted in Lorenzen, supra note 71, at 164 (citations omitted).

J. Transnatl L. 819, 835 (2011). See Skiriotes v. Florida, 313 U.S. 69, 79 (1941) (deferring to state interpretation of geographic scope of state statute despite statutory language apparently inconsistent with that interpretation). 22 (1992). As of September 25, 2015, there were 637 such cases. 344 1350 (2012). Quackenbush, 517 U.S. at 721. Close. 108 192

. 747, 75154 (1982) (questioning Pipers holding that forum non conveniens determinations should be reviewed for abuse of discretion). Prescriptive comity operates as a principle of restraint in American law today mainly through the presumption against extraterritoriality.

See 28 U.S.C.

See, e.g., Samantar v. Yousuf, 130 S. Ct. 2278, 2284 (2010) ([Schooner Exchange] was interpreted as extending virtually absolute immunity to foreign sovereigns as a matter of grace and comity. (quoting Verlinden, 461 U.S. at 486)); Republic of Austria v. Altmann, 541 U.S. 677, 688 (2004) ([Schooner Exchange explained] that as a matter of comity, members of the international community had implicitly agreed to waive the exercise of jurisdiction over other sovereigns in certain classes of cases, such as those involving foreign ministers or the person of the sovereign .

Courts complain that comity has never been well-defined.

See id.

See Ungar v. Palestine Liberation Org., 402 F.3d 274, 284 n.6 (1st Cir. and counterclaims.

309 . Close 214

Id. 165

or foreign state compulsion.

112 1782. In Ungaro-Benages v. Dresdner Bank AG, the Eleventh Circuit went further and upheld abstention on international comity grounds, despite the absence of parallel foreign proceedings, to support a foundation established by the United States and Germany to hear claims brought by victims of the Nazi regime. 41 245 63 331

379

143 3, 2015) (noting extent of discretion depends on the statute).

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401(c) (defining jurisdiction to enforce as jurisdiction to induce or compel compliance or to punish noncompliance with its laws or regulations).

362

Before Erie, Close 1350 note (Torture Victim Protection) (A court shall decline to hear a claim under this section if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred.). 8

. 87 The other discretionary grounds for nonrecognition are: the judgment was obtained by fraud; the judgment is repugnant to public policy; the judgment conflicts with another final judgment; the judgment is contrary to a choice-of-court agreement; the foreign court was seriously inconvenient and jurisdiction rested only on service of process; there are substantial doubts about the integrity of the rendering court with respect to the particular judgment; or the defendant was not afforded due process. 153 Guar.

201

372 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. 2005) (It may be argued that a foreign state, for purposes of the FSIA, is an entity that has been recognized as a sovereign by the United States government.); see also Sokolow v. Palestine Liberation Org., 583 F. Supp. requires case-by-case analysis. Normally Payable in Money 7.

303

Court for S. Dist. 198, 20102 (N.Y. 1918) (Cardozo, J.)

181 116

258 The Supreme Court has repeatedly emphasized the virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.

369 93 Close

. Westlaw shows more than 470 quotations of this passage, or parts of it, by state and federal courts since Hilton.

(2) All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof. 393 For example, the President has unreviewable authority to recognize foreign governments. 205

State Laws 2005) [hereinafter 2005 Uniform Act]; Unif. 105

. Close, During the nineteenth century, American courts invoked comity repeatedly as the basis for enforcing foreign lawsfrom those governing contracts, 253

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). Similarly, Joseph Beale observed that [t]he doctrine seems really to mean only that in certain cases the sovereign is not prevented by any principle of international law, but only by his own choice, from establishing any rule he pleases for the conflict of laws. Belg.

(The act of state doctrine, like the doctrine of immunity for foreign sovereigns, has its roots, not in the Constitution, but in the notion of comity between independent sovereigns.). of being able to enter a political judgment in the court in cases where we would rather not do anything at all, but where there is enormous pressure from the foreign government that we do something). 3493 Before the Subcomm.

By the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, Justice Story wrote in Prigg v. Pennsylvania. The case, in which Dallas served as counsel, was dismissed on jurisdictional grounds, but Dallas apparently felt that his translation should not go to waste. 310 In short, adjudicative comity operates as a principle of recognition in American law through state law providing for the recognition of foreign judgments and a federal statute authorizing district courts to help foreign courts with the discovery of evidence in the United States.

Tectonics Corp., Intl, 493 U.S. 400, 409 (1990) (The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.).

See, e.g., Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 95053 (1st Cir.

(We are bound to give effect to the assignment [of personal property].

Close.

227

See W.S.

(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.

191 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,

. art. Close 1170, 1177 (2007) ([T]here are strong reasons, rooted in constitutional understandings and institutional competence, to allow the executive branch to resolve issues of international comity. 80

Id. But whatever particular form a doctrine takes, it is a courts obligation to apply its requirements faithfully rather than treating international comity as a blank check for discretion, either by the court or by the executive branch. 342, 344 (K.B.).

the act of state doctrine,

Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. 16041607 (2012) (providing foreign state immunity from suit subject to specific exceptions). 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.).

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.).

See The Sapphire, 78 U.S. (11 Wall.)

Close 381 160

Counsel cited Huber and courts relied on him.

Close As a principle of restraint, adjudicative comity finds expression in a number of doctrines.

as well as for state-sponsored terrorism Close See W.S. 52

procedures compatible with. 94 241 1987) (concluding factors favoring antisuit injunction are not sufficient to overcome the restraint and caution required by international comity).

They briefly assert that courts continue to take account of the executives views in FSIA cases. Posner & Sunstein, supra note 33, at 1200; see also id. 169

And yet the Supreme Court often seems to treat international comity and international law as interchangeable. The question, the Ninth Circuit wrote in Timberlane, was whether American authority should be asserted in a given case as a matter of international comity and fairness. Close.

. .

See 28 U.S.C. Finally, the increasing reliance on maintaining friendly relations with foreign governments as a justification opened the door to arguments for increased deference to the executive branch on questions of international comity. 2010) (en banc).

368 Law Inst. L. Rev. 2012); Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 18 (1st Cir. 178

Childress, supra note 20, at 34. . at 1205. Oil Co., 499 U.S. 244, 248 (1991) (citing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 2022 (1963)). Over the past four decades, the FSIA (with little or no deference to the executive branch) has not generated major foreign policy problems. Why are some comity doctrines state law, Close It is also possible for international law to shrink and leave gaps for comity to fill.

See infra notes 406409 and accompanying text (discussing legislative history of FSIA). on the Judiciary, 93d Cong.

In the judgments context, the foreign tribunal has already made its decision.

Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909). 124 The presumption in favor of a foreign plaintiffs choice of a U.S. forum is less strong.