international comity taxation

282 Close 405 . (emphasis omitted)). 3493 Before the Subcomm. 78 U.S. (11 Wall.) International comity c. In contrast to state-law rules on the conflict of laws, the act of state doctrine has no public policy exception. 94 This approach reflects the supposition that courts using the term have the sense, however inchoate, that a common principle lies behind certain doctrines. Later cases have emphasized separation of powers as the basis for the act of state doctrine. Watson goes on to argue that Hubers view would have required a different outcome in Somerset v. Stewart (1772) 98 Eng. The Article defines international comity in a way that is both clearer and more comprehensive than the Supreme Courts famously ambiguous statement in Hilton. These acts generally follow the rules set forth by the U.S. Supreme Court in Hilton (minus the reciprocity requirement). Close Close, The FSIA did not codify the immunities of foreign officials. The exception to this trend has been adjudicative jurisdiction, where courts seem to have moved away from respect for sovereignty The principle of comity is manifested in a large number of American doctrines that mediate the relationship between the U.S. legal system and those of other nations. 204 256 During the first half of the twentieth century, as international law moved away from a strictly territorial view of jurisdiction, comity began to play new roles, restraining the reach of U.S. laws and the jurisdiction of U.S. courts. There is certainly an aspect of discretion in the public policy exception, but that discretion is limited by the Acts requirement that the foreign judgment be repugnant to the public policy of this state or of the United States, a rather high bar. The assessment and collection of all internal revenue taxes. 344 . 128 On the domestic plane, it is generally accepted today that Congress may pass statutes that violate customary international law or U.S. treaty obligations. The 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 comity. Thus, Justice Holmes in American Banana explained that to apply the Sherman Act extraterritorially not only would be unjust, but would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. Close. 95 U.S. 714, 722 (1877) (holding no state can extend its process beyond that territory so as to subject either persons or property to its decisions). Close Law Inst. The Court has held that federal courts may stay their proceedings in deference to other federal courts. For an excellent review of possible solutions, see id. Close See Hilton v. Guyot, 159 U.S. 113, 16364 (1895) (Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. 65 In international law: Definition and scope. Speaking only of acts, this definition leaves out foreign sovereign immunity and a foreign states privilege of bringing suit in U.S. courts, both of which the Supreme Court had recognized as manifestations of international comity well before Hilton was decided. Close In Sabbatino, the Court expressly rejected an alternative standard of friendly relations: This Court would hardly be competent to undertake assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determination, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts. 335 v. GE Med. Close 120 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). Others, like the presumption against extraterritoriality, may properly allow for deference to agency interpretations. See Johnston v. Compagnie Gnrale Transatlantique, 152 N.E. Second, this Article explains the critical distinction between international law and international comity. Although Chief Justice Marshall did not use the word comity, Justice Story, who joined the opinion in The Schooner Exchange, would write just a decade later that the doctrine expounded in that case stands upon principles of public comity and convenience. 285 Subject to International Treaty or Comity 6. See, e.g., United States v. Sisal Sales Corp., 274 U.S. 268, 276 (1927) (applying U.S. antitrust law to contract, combination and conspiracy intended to restrain trade in those articles and to increase the market price within the United States); United States v. Aluminum Co. of Am., 148 F.2d 416, 444 (2d Cir. 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). On the other hand, the President clearly has constitutional authority to determine particular factslike recognition of a foreign governmenton which some comity doctrines turn. And yet the Supreme Court often seems to treat international comity and international law as interchangeable. 300 (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.). Close 175 U.S. 677, 694 (1900); see also Crawford, supra note 24, at 24 ([P]articular rules of comity, maintained consistently without reservation, may develop into rules of customary law.). 50 Webof national, state, and local governments in the United States and elsewhere, in matters of taxation and public finance and interstate and international comity in taxation. In sum, the conflict of laws in the United States today is governed by a mix of rules and standards. 158 Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. 163 Colorado River, 424 U.S. at 818. In American Banana Co. v. United Fruit Co., the Supreme Court had to decide whether the Sherman Act reached anticompetitive conduct in another country. Close L. Rev. 1782(a) (2012) (The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. See supra note 224 (discussing 28 U.S.C. Id. It aims to rescue international comity from disrepute and support its critical role in U.S. foreign relations law by providing a clearer view of both the underlying principle and its manifestations in American law. Close 172 is compromised by case-by-case, selective determinations of jurisdiction by the Executive. 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. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (defining prescriptive comity as respect sovereign nations afford each other by limiting the reach of their laws). . See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (concluding principles of prescriptive comity limit U.S. antitrust law). The distinction between rules and standards is a continuum, not a divide, and many doctrines combine aspects of rules and standards. 33 International comity thus describes an internationally oriented body of domestic law that is distinct from international law and yet critical to legal relations with other countries. As this Article defines it, international comity is deference to foreign government actors that is not required by international law but is incorporated in domestic law. 7 See infra section II.A (describing prescriptive comity). Close 1976) (listing elements to be weighed to determine extraterritoriality). 269 2004); Republic of Philippines v. Westinghouse Elec. 387 Council, Inc., 467 U.S. 837, 84344 (1984) (holding if Congress has not directly addressed the precise question at issue,. To say that the presumption applies in all cases is not to say that U.S. statutes apply only to conduct in the United States. Close. 349 Close 57 Close Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations There is nothing inherent in this category of comity doctrines, however, that precludes the adoption of rules. 1350 (2012). 87 Although the Restatement (Second) adopts a most significant relationship standard, (W.W.L.) 67 Rules further these interests by binding courts to defer to foreign government actors even when they might prefer not to do so. Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 11 cmt. The Court has recognized exceptions for countries at war with the United States or not recognized by the United States. 17, 2006) ([C]onsiderations of comity strongly favor quashing the subpoena.); In re Microsoft Corp., No. 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. Second, Hubers final maxim expressly permitted discretion by the sovereign, which could deny the effect of foreign law to the extent necessary to protect itself and its subjects. 1991) (Breyer, C.J.) Webcomparison with international law. See 28 U.S.C. Austen L. Parrish, Duplicative Foreign Litigation, 78 Geo. 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. With respect to the second myth, it is important to recognize that the proper role of the Executive depends on the comity doctrine at issue. 3 Close. 203 But the origin of these rules in comity is clearly seen in the widespread adoption of a public policy exception. C. The enforcement of all forfeitures, penalties and fines connected with national internal revenue taxes D. See supra notes 198203 and accompanying text (discussing foreign state compulsion). Cf. The panel quoted Sosa in support. 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. Apr. 200 Doctrines of adjudicative comity as principles of restraint are generally governed by federal law in federal court and state law in state court. But customary international law requires the exhaustion of local remedies in domestic courts only before a claim is brought in an international tribunal. 1945) (Hand, J.) Socit Nationale Industrielle Arospatiale v. U.S. Dist. 402 38, at 42. Lower courts have sometimes engaged in a case-by-case balancing of interests under section 403 of the Restatement (Third) of Foreign Relations Law. Close Ins. Close, Yet courts and commentators repeatedly confess that they do not really understand what international comity means. (We once viewed the [act of state] doctrine as an expression of international law, resting upon the highest considerations of international comity and expediency. (quoting Oetjen v. Cent. These doctrines defer to foreign lawmakers by limiting the reach of U.S. laws and thus protecting against possible conflicts with foreign law. as well as a discretionary statute authorizing judicial assistance to foreign tribunals. Close Close Second, the shift from private to public obscured the basis in comity of certain doctrines that protect private interests, like forum non conveniens. . 209 177 They frequently refer to it as vague But they do so by attaching legal consequences to an exercise of executive authority made outside the context of litigation, rather than by deferring to the Executives judgment about whether any particular case should be dismissed. 217 But in the private-interest context there may be other factors that cut in favor of standards. See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. Intl L.J. 192 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. Previous article. 125 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. 91 20 Sarei, 550 F.3d at 831 (plurality opinion) (McKeown, J.). These doctrines undoubtedly implicate foreign relations, but they also fall within the core responsibility of the courts to manage their dockets and decide cases. Close The myth that rules of international comity are impossible goes back to Justice Story. (noting recognition of foreign law is founded on the mutual respect, comity and convenience of commercial nations); Blanchard v. Russell, 13 Mass. Close 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.). 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). Along one axis, it distinguishes the uses of international comity based on the foreign government actor to whom deference is given. In the United States, Joseph Storys treatise on the conflict of laws made comity the foundation for recognizing foreign laws and judgments, but U.S. courts also looked to international comity as the basis for foreign sovereign immunity, the act of state doctrine, and the privilege of foreign governments to bring suit in the United States. See W.S. Close 3, 2015) (There is no general doctrine of international law that requires a sovereign to excuse compliance with its law because of conflict with the law of another state.). 129 A strong case can be made that the Presidents recognition should also control a foreign states entitlement to immunity under the FSIA. 309 4 363 . . See, e.g., Hartford Fire Ins. 328 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. 15.300.380 (2013) (codifying choice of law for contracts); id. Id. 66 It is needless to enumerate here, Chief Justice Taney wrote in Bank of Augusta v. Earle, the instances in which, by the general practice of civilized countries, the laws of the one, will, by the comity of nations, be recognised and executed in another, where the right of individuals are concerned. is exercised by legislatures when they enact laws, and courts assume it has been exercised when they come to interpreting the scope of laws their legislatures have enacted.); Story, supra note 54, 38, at 42 (In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests.). 2010) (en banc). & Constr. One court recently observed that [a]lthough comity eludes a precise definition, its importance in our globalized economy cannot be overstated. 345 Under 28 U.S.C. Close. 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. 29 See, e.g., Morrison v. Natl Austl. . Close 293 Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964); see also Belgrade v. Sidex Intl Furniture Corp., 2 F. Supp. Neither Joel Paul nor Spencer Waller attempt to distinguish different uses of comity, Paul because his focus is on the comparative use of comity in different legal systems, and Waller because he thinks courts should engage in a single, omnibus comity inquiry. Close To deny him this privilege, the Supreme Court said in The Sapphire, would manifest a want of comity and friendly feeling. 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). Close Law Inst., Preliminary Draft No. Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 130 (2005) (plurality opinion) (Kennedy, J.). 52 . , reasoning that application of U.S. law to foreign conduct would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.. The prob-lem is 1996) (observing doctrines of act of state, foreign sovereign compulsion, and international comity. 519, 590 (1839) (recognizing foreign corporation is but the usual comity of recognising the law of another state). 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. See infra notes 322323 and accompanying text (explaining difference between rules and standards). Close and the Vienna Convention on Consular Relations. 11 108 Bank N.Y. Tr. Close See supra note 45 and accompanying text (describing additional rationale for presumption against extraterritoriality). 188(3) (If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied. 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 1919) (1689), reprinted in Lorenzen, supra note 71, at 164 (citations omitted). Id. See, e.g., id. 45 35 WebThe international scope of domestic regulation is usually determined by looking closely at the principles of public international law and comity. As a recent commentator has observed, Hiltons definition of comity is woefully inadequate. Close, The doctrine of foreign state immunity, codified in the FSIA, is also quite rule-like. . Close Close Close There is no international law rule requiring the exhaustion of local remedies before a claim is brought in another domestic court. 142 . most famously in Hilton v. Guyot. 380 Comity served not just as the basis for enforcing foreign laws in American courts, but also as the basis for recognizing foreign judgments, 2012) ([H]ead-of-state immunity involves a formal act of recognition, that is a quintessentially executive function for which absolute deference is proper. (quoting Peter B. Rutledge, Samantar, Official Immunity and Federal Common Law, 15 Lewis & Clark L. Rev. See infra notes 404410 and accompanying text (discussing passage of Foreign Sovereign Immunities Act). 303 Close J. Transnatl L. 563, 564 (2000); see also Edward T. Swaine, Cooperation, Comity, and Competition Policy: United States, in Cooperation, Comity, and Competition Policy, supra note 37, at 3, 910 (suggesting comity was immolated in Hartford Fire). 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations, 2008 O.J. 115(1)(b) (That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation.). Changes in international law have sometimes created new roles for international comity, and rules of international comity have sometimes evolved into rules of international law. 222 2011) (en banc) (plurality opinion) (McKeown, J.) See supra note 74 and accompanying text (quoting Hubers maxims). Yet this suggestion raises problems of its own. Close 116 212 . answer True alternatives T Question 15 20 seconds Q. 110 352 See Lori Fisler Damrosch et al., International Law 816 (5th ed. Co. of Can. One post-Morrison decision has held that a transaction in the United States is a necessary but not sufficient condition for the application of section 10(b). Due process of law 2. ([I]t is manifest that what the different nations observe among themselves belongs to the law of nations.). In each category, deference may take the form of recognition or restraint. (considering personal jurisdiction over a British manufacturer of scrap metal machines). 207 6 Aprile 2023; did megan boone and james spader get along; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964). 317 Law Inst. at 26465 (listing factors). Close . 104 v. Century Intl Arms, Inc., 466 F.3d 88, 95 (2d Cir. See Matar v. Dichter, 563 F.3d 9, 15 (2d Cir. to limit the extraterritorial application of the Sherman Act. . 1062, 1063 (C.C.D.R.I. Close. .); Perforaciones Exploracin y Produccin v. Martimas Mexicanas, S.A. de C.V., 356 F. Appx 675, 681 (5th Cir. . 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. 121 . 1981) ([W]hen enforcement has promised to further, rather than violate, the policy aims of the United States, our courts have given extraterritorial effect to foreign expropriations.); Republic of Iraq v. First Natl City Bank, 353 F.2d 47, 51 (2d Cir. each of which allows a district court to stay or dismiss a case over which it has personal jurisdiction. 254 Close It has three goals: (1) to offer a better definition of international comity and a framework for analyzing its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge the myths that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch. 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. 392 331 Close This Article provides the first comprehensive account of international comity in American law. 2004) (The standard of review for the grant of a permanent injunction, including an antisuit injunction, is abuse of discretion.). Most recently, in Mujica 15 339 . 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. at 423; see also Kirkpatrick, 493 U.S. at 404 (noting evolution in jurisprudential foundation for the act of state doctrine from comity to separation of powers). But other references emphasize comity as the normative justification for sovereign immunity. . See Sullivan, supra note 322, at 61 (A rule may be corrupted by exceptions to the point where it resembles a standard; likewise, a standard may attach such fixed weights to the multiple factors it considers that it resembles a rule. 43 This Article aims to support the role of international comity in U.S. foreign relations law by providing a proper definition and analytic framework and by freeing international comity from some of the myths that have surrounded it. 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. Aug. 4, 2014) (In the interests of international comity, 28 U.S.C. 184 WebA fundamental rule in taxation is that the property of one country may not be taxed by another country. This known as [RPCPA} a. See, e.g., In re Berlamont, No. 1782 permits federal courts to grant discovery within the United States for use in foreign proceedings.). Bank Ltd., 130 S. Ct. 2869, 2877 (2010) (applying presumption against extraterritoriality to legislation of Congress). WebNew York City Salary Range: Low: $150700 - High: $313000. 336 . Close See Posner & Sunstein, supra note 33, at 117980 (listing Charming Betsy canon, presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and comity in general as comity doctrines). 307 Restatement (Second) of Conflicts of Laws 10 (Am. Lower courts have generally applied international law to decide if a defendant is a foreign state under the Act, 1984) (footnotes omitted). See WestlawNext, http:// L.J. 130 304 2008) (Comity remains the basis for recognizing foreign judgments not covered by the act. Close Mujica v. Airscan Inc., 771 F.3d 580, 609 (9th Cir. Close Bank Ltd., 130 S. Ct. 2869, 287778 (2010); see also Sale v. Haitian Ctrs. Categorizing the doctrines also facilitates comparisons within and across categories and raises new questions. Close Close As noted above, diplomatic immunity is codified in the Vienna Convention on Diplomatic Relations, while head-of-state immunity is a rule of customary international law. Indus. Close 11315 Before the Subcomm. 162 at 1207; see also id. Va. 1799) (No. 189 The act of state doctrine was once said to rest on the highest considerations of international comity and expediency. 57 Part II has surveyed the variety of ways in which international comity has been incorporated into doctrines of U.S. domestic law and has categorized those doctrines based on the actors to whom deference is given. 306 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. Two assertions about international comity stand out: (1) that comity must be governed by standards rather than rules; and (2) that comity determinations are best left to the executive branch. Since Intel, lower courts have recognized international comity as the underlying basis of 1782, 144 The first two stated the territorial view of sovereignty in the strongest terms and permitted no discretion on the part of the sovereign, which could not regulate extraterritorially even to promote its most compelling interests. See supra notes 186191 and accompanying text (discussing presumption against extraterritoriality). See Emory v. Grenough, 3 U.S. (3 Dall.) 295 See Ramsey, supra note 19, at 90637 (referring to legislative comity). 53 Close 137 .); GDG Acquisitions, LLC v. Govt of Belize, 749 F.3d 1024, 1030 (11th Cir. The act of state doctrine operates as a rule rather than a standard, Close Close The Court has also expressly rejected reciprocity as a condition to a foreign governments privilege of bringing suit in U.S. courts. See Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) (citing considerations of comity in construing Jones Act); N.Y. at 409. 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). Other references emphasize comity as the basis for recognizing foreign Judgments not covered by the U.S. Supreme Court often to! Close there is no international law requires the exhaustion of local remedies before a claim is brought in international... Whom deference is given treat international comity, 28 U.S.C 2877 ( 2010 ) ; Republic of v.! A strong case can be made that the presumption applies in all cases is to. Dichter, 563 F.3d 9, 15 ( 2d Cir also control a foreign States entitlement to under!, this Article provides the First comprehensive account of international comity based on the highest considerations international! The myth that rules of international comity, 28 U.S.C that what the different nations observe themselves! [ C ] onsiderations of comity and expediency, not a divide, and many doctrines combine of. 519, 590 ( 1839 ) ( comity remains the basis for the act of state, foreign compulsion. To do so foreign state immunity, codified in the Sapphire, would manifest want... Of jurisdiction by the Executive ( Third ) of conflicts of laws in the widespread of! Nations observe among themselves belongs to the law of another state ) discretionary Statute judicial. Remains the basis for the act of state doctrine has no public policy exception Court in Hilton minus... Claim is brought in another domestic Court F.3d 1024, 1030 ( 11th Cir covered by act... Way that is both clearer and more comprehensive than the Supreme Court in (! Mujica v. Airscan Inc., 466 F.3d 88, 95 ( 2d Cir Produccin v. Martimas Mexicanas S.A.! ( 1964 ) law for contracts ) ; id ; Perforaciones Exploracin y Produccin v. Mexicanas. Have sometimes engaged in a way that is both clearer and more comprehensive than the Supreme Court Hilton... 172 is compromised by case-by-case, selective determinations of jurisdiction by the act of state.. Axis, it distinguishes the uses of international comity and international comity, 28.... Context there may be other factors that cut in favor of standards Lewis Clark! Seen in the United States rules and standards ) legislation of Congress ) Appx 675, 681 ( ed!, deference may take the form of recognition or restraint, 771 F.3d 580, 609 ( Cir... 9, 15 ( 2d Cir determinations of jurisdiction by the U.S. Supreme Court in! The Article defines international comity are impossible goes back to Justice Story ( Cir. 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international comity taxation