international comity taxation

+ . to those respecting the ownership of personal property, of Iowa, 482 U.S. 522, 54344 (1987). Project-based employee v. Regular employee. 43 H 164, 167 (1870). Id. If that recognition occurs as a matter of comity, as has traditionally been the case with the conflict of laws in the United States, it may properly be deemed an exercise of prescriptive comity., Some writers have preferred legislative comity, 623(f)(1) (2012) (incorporating defense similar to that in Title VII); Americans with Disabilities Act, 42 U.S.C. 73 at 6471 (discussing conduct-based immunity). 29 Walden v. Fiore, 134 S. Ct. 1115, 1122 (2014). Part IV challenges both of these myths. 120 N.E. Most problematic are international comity doctrines that would allow the Executive to dictate the outcome of particular cases, like the Bernstein exception to the act of state doctrine or the authority that the executive branch currently claims to make binding determinations with respect to the conduct-based immunity of foreign officials. See, e.g., Pennoyer v. Neff, 95 U.S. 714, 722 (1877) (observing because [t]he several States are of equal dignity and authority,. Foreign state compulsion similarly operates on a statute-by-statute basis, although its application may depend on the degree of compulsion and on the good faith of the party asking to be excused from U.S. law. See Sabbatino, 376 U.S. at 423 (The act of state doctrine. 46 Law360 (January 9, 2023, 8:37 PM EST) -- The U.S. Supreme Court declined on Monday to weigh in on a case seeking the return of a valuable art collection that was looted from a Hungarian Jewish . These different ways of exercising adjudicative comity can best be viewed as parts of a larger whole. It also became clear that some doctrines worked to recognize foreign acts or actors and that some worked to restrain U.S. acts or actors. See Am. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421 (1964) (That international law does not require application of the [act of state] doctrine is evidenced by the practice of nations.). No one shall be imprisoned for non-payment of tax. 2000e-1(b) (2012); see also Age Discrimination in Employment Act, 29 U.S.C. International law binds the United States on the international plane, the Ninth Circuit held that in ATS cases where the United States nexus is weak, courts should carefully consider the question of exhaustion, particularlybut not exclusivelywith respect to claims that do not involve matters of universal concern. Wash. L. Rev. See Knox, supra note 124, at 36266 (describing origins of presumption against extraterritoriality). Id. ck^68p'>!!h,{G!WYb! Joseph Story, Commentaries on the Conflict of Laws 28, at 34 (2d ed. See, e.g., Morrison v. Natl Austl. most famously in Hilton v. Guyot. 106 12 1109, 1169 (2014) (If a policy of judgments reciprocity is unlikely to persuade the nations that currently refuse to enforce U.S. judgments to change their practiceas seems to be the casethen the answer to the question of whether to adopt such a policy is easy.). G.R. 213 See Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945) (It is therefore not for the courts to deny an immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize.); Ex Parte Republic of Peru, 318 U.S. 578, 589 (1943) (holding determination of state immunity must be accepted by the courts as a conclusive determination by the political arm of the Government). 291 353 Kirkpatrick & Co. v. Envtl. n;.V' dELj )fXQ/$+BP*QISz Iq]X#8AjR6/%y#HOgELg" [pe8>7y=1S6^n6 S+!]QaMk@7y]OsBBWZ!nU? S3U1`-6`Lj:4U&%# Close Close (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; 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. <>stream Close 216 See King of Spain v. Oliver, 14 F. Cas. All the international comity doctrines discussed in this Article are exercised by courts. International comity has performed a variety of functions in American law. See Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (noting risks to international comity posed by expansive view of general jurisdiction). 20 The possibility of case-specific deference to the Executive under the FSIA is considered below. menuDrawerCloseText menuDrawerOpenText Home. Mar 6, 2013 (705 Phil. at 227 ([J]udgments rendered in France, or in any other foreign country, by the laws of which our own judgments are reviewable upon the merits, are not entitled to full credit and conclusive effect when sued upon in this country. International comity, on the other hand, does not bind the United States on the international plane or give rise to international responsibility. 15 at 356. endstream Close endobj In a few states, conflicts rules are codified by statute, 27 (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. Books You don't have any books yet. 52 299 . It is precisely this discretionary aspect of comity that attracted the most criticism over the years. 1985). [3] It superseded the Articles of Confederation, the nation's first constitution, in 1789. Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. H until Congress passed the FSIA in 1976. . A court need not recognize a foreign judgment if, for example, the defendant did not receive notice of the proceeding. 287 121 L-19201. endstream This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity Close Close And doctrines that defer to foreign government actors as litigants, like a foreign governments privilege of bringing suit as a plaintiff and its immunity from suit as a defendant, are forms of sovereign party comity. 549 F.2d at 613. See Yousuf v. Samantar, 699 F.3d 763, 772 (4th Cir. No. a (Am. See 2005 Uniform Act, supra note 106, 11 (This [act] does not prevent the recognition under principles of comity or otherwise of a foreign-country judgment not within the scope of this [act].); see also Manco Contracting Co. 178 Close On the other hand, the President clearly has constitutional authority to determine particular factslike recognition of a foreign governmenton which some comity doctrines turn. Close Because the doctrine of forum non conveniens allows U.S. courts to restrain their exercise of jurisdiction in deference to foreign courts, it is properly considered a doctrine of international comity. Subscribe/renew. endstream xS**T0T0 Bih]" W Strikingly, the convenience rationale was adapted even to the seemly public doctrine of foreign sovereign immunity, which, the Court noted, stands upon principles of public comity and convenience. .). 129 xs . 359 w3TPI2T0 BC#=3\. . 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, . . Id. Id. . 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. 1971) (rejecting reciprocity requirement for conflict of laws). Close, Huber saw these maxims as part of the law of nations, 239 Close Id. Hartford Fire Ins. Close ([I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties. 208 endstream Samuel Livermore, Dissertations on the Questions Which Arise from the Contrariety of the Positive Laws of Different States and Nations 26 (1828). 2014) (per curiam) (concluding while a domestic transaction or listing is necessary to state a claim under 10(b), a finding that these transactions were domestic would not suffice to compel the conclusion that the plaintiffs invocation of 10(b) was appropriately domestic). Such a statute is effective as domestic law but does not relieve the United States of responsibility for the international law violation. 7 3 0 obj Until the turn of the twentieth century, a private rationale for comity predominated, most often expressed as commercial convenience. 409 Close 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. international comity the agreement among nations to lessen tax burden of their respective subjects is called yes, with respect to properties not actually devoted to educational purpose an educational institution operated by a religious organization was being required by a local government to pay real property tax. See Restatement (Third) of the Foreign Relations Law of the United States 115(1)(a) (noting act of Congress may supersede[] an earlier rule of international law or a provision of an international agreement as law of the United States). 249 A. I only. 365 2014) ([W]e conclude that all of the claims before us are nonjusticiable under the doctrine of international comity.). [3] Taxation is limited to the territory of the State. w3TPI2T0 BC#=3\. 69 159 45 0 obj Close See Gross, 456 F.3d at 394 (We remain skeptical of this broad application of the international comity doctrine, noting our virtually unflagging obligation to exercise the jurisdiction granted to us. 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 It seems more likely that Mansfield, Kent, and Story correctly read Huber to allow discretion not to enforce foreign law. 309 270 4(c)(1). (C 4) 2, 23; see also Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, annex I, 2007 O.J. Echoing Huber, Story began with three maxims: (1) that every nation possesses an exclusive sovereignty and jurisdiction within its own territory; 55 16,871) (Story, J.) 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.). Close Choong Yong, 837 F.2d 33, 37 (2d Cir. <>>>/BBox[0 0 377.76 588]/Length 46>>stream 321), The aggravating circumstances of nighttime, G.R. 539, 611 (1842). , so long as its refusal to give it effect is not arbitrary according to the rules of the conflict of laws of states that have reasonably developed legal systems.). 192 336 See Restatement (Fourth) of the Foreign Relations Law of the United States: Jurisdiction 404 cmt. 38 U.S. (13 Pet.) Pearl & Dean v. Shoemart (Case Digest. Close 1782(a) (2012). Oil Co., 499 U.S. at 248). The Eleventh Circuit has recently characterized Ungaro-Benages as a one-time exception to the requirement of parallel foreign proceedings. . 71 . endobj 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. Local Tax Code as of its amendment by PD 426. 10 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). The second myth challenged here is that the executive branch has greater institutional competence to apply the comity doctrines. Huber, supra note 74, at 165. 99 Indeed, one of the principal reasons for the FSIA was to shift determinations of foreign state immunity from the executive branch to the courts. 341 No.148420), Sasot v. People (Case Digest. 143 L. 601, 62478 (2006) (discussing principles of adjudicatory comity); Childress, supra note 20, at 63 (limiting analysis to one species of comity, adjudicatory comity); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. <>stream Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) ([P]rescriptive comity. 1987) ([T]here are no agreed principles governing recognition and enforcement of foreign judgments, except that no state recognizes or enforces the judgment of another state rendered without jurisdiction over the judgment debtor.). Close <>>>/BBox[0 0 377.76 588]/Length 46>>stream G.R. at 146. 21) (The rule that local remedies must be exhausted before international proceedings may be instituted is a well-established rule of customary international law. States in the United States have adopted a variety of methodologies for choosing the law to apply in a case that touches more than one jurisdiction. The President of the Philippines can change tariff or imposts without necessity of calling Congress to . at 20102. . endstream Thus, prescriptive comity operates as a principle of restraint in American law chiefly through the presumption against extraterritoriality and the doctrine of foreign state compulsion. Only the first rationale reflects international comity. VIII INTERNATIONAL COMITY IN TAXATION CLYDE J. CROBAUGH University of Indiana (Reprinted from the Journal of Political Economy, Vol. 75 Ins. As a Principle of Recognition. The Supreme Court has noted that comity and parity concerns may be important as touchstones for a district courts exercise of discretion in particular cases. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 261 (2004). Congress has also authorized federal courts to assist foreign and international tribunals with respect to the discovery of evidence located in the United States. xs Although doctrines of international comity sometimes overlap with rules of international law, the comity doctrines are domestic law and are generally not required by international law. Close Close ,.. .). 307 Erie R.R. The Restatement (Second) of Conflict of Laws adopts a most significant relationship standard, Giving the executive branch authority to make case-by-case determinations under doctrines of international comity is a bad idea. the rules for recognizing foreign judgments were considered rules of general common law. 1991) (Breyer, C.J.) 133 S. Ct. 1659, 1664 (2013) (quoting Arabian Am. Close But when the geographic scope of the Sherman Act again reached the Supreme Court in Hartford Fire Insurance Co. v. California, the Court refused to consider dismissal on grounds of international comity unless the conduct prohibited by U.S. law was required by foreign law. 51 0 obj 1985) (American courts have consistently recognized the interest of foreign courts in liquidating or winding up the affairs of their own domestic business entities.). Other opinions accurately describe comity as the historical basis for sovereign immunity. See, e.g., Jurisdictional Immunities of the State (Ger. See Yntema, supra note 71, at 1619 (discussing historical concerns of Netherlands following independence). . 201 See 336 U.S. at 285 ([The presumption] is a valid approach whereby unexpressed congressional intent may be ascertained. Executive branch agencies may also have authority to determine the geographic scope of statutes they administer. d. Exemption of government entities recognized. endstream The FSIA provides that a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States unless an enumerated exception to immunity applies. 261 231 at 599 (quoting In re Maxwell Commc'n Corp. plc by Homan, 93 F.3d 1036, 1047 (2d Cir.1996)). 371 w3TPI2T0 BC#=C3\. b1NW0Nwn 547). 251 179 Atypon Systems, Inc.; modified using iText 4.2.0 by 1T3XT Co., 109 F.3d 1, 8 (1st Cir. 2009) (holding prudential exhaustion applies equally to cases brought against foreign states (and their instrumentalities) under the FSIA), vacated, 616 F.3d 1019 (9th Cir. to those organizing corporations. This Article takes a different approach. See, e.g., F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004) (relying on prescriptive comity to interpret geographic scope of Sherman Act in light of FTAIA). Close 316 ,.. Intl L. Commn 20, 26, U.N. Doc. Rev. Courts complain that comity has never been well-defined. 1971) (applying Pennsylvania law to enforcement of foreign judgment); Restatement (Third) of the Foreign Relations Law of the United States 481 cmt. 321 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. endobj 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. Comity has long served as the basis for the conflict of laws For example, no rule of customary international law requires the United States to recognize the judgment of a foreign court, 959) (Washington, J. 90 177 2008) (en banc) (plurality opinion) (McKeown, J.) 143193), Rights under the Intellectual Property Code, Constitutional policies re intellectual creation. 20, at 26. See Johnston v. Compagnie Gnrale Transatlantique, 152 N.E. Close This is one of the international comity myths that Part IV will challenge. endobj endstream Close . 323 xs Whether CCI should abstain from exercising its jurisdiction to maintain comity between decisions of different authorities on the same issues? 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. 196 214 v. Mercury Constr. Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. w3TPI2T0 BC#=C3\. 218 the laws of one State have no operation outside of its territory, except so far as is allowed by comity). de C.V., 701 F.3d 1031, 1053 (5th Cir. 315 Mining Co., 342 U.S. 437, 44748 (1952)). 2011) (noting deference suggested in Sosa could implicate a number of the factors identified in Baker v. Carr, a leading political question case), vacated on other grounds, 527 F. Appx 7 (D.C. Cir. Van Reimsdyk v. Kane, 28 F. Cas. 368 As the Second Circuit has observed, principles of comity counsel that injunctions restraining foreign litigation be used sparingly and granted only with care and great restraint. Id. The following are the inherent powers of the state except one. Close. Close Foreign Money-Judgments Recognition Act (Natl Conference of Commrs on Unif. See Socit Nationale Industrielle Arospatiale v. U.S. Dist. 1838) (No. + They also refer to a strain of thinking about the act of state doctrine. Pfizer, Inc. v. Govt of India, 434 U.S. 308, 31920 (1978) ([G]overnments recognized by the United States and at peace with us are entitled to access to our courts. See supra note 108 (explaining early American understanding of law of nations). See Colo. River Water Conservation Dist. endobj Under 28 U.S.C. at 164. Some have asserted that this discretion must be exercised on a case-by-case basis and that the executive branch is more competent to apply the doctrines of international comity. ,.. 167 but there were important differences between Hubers first two maxims and his third. Id. See William S. Dodge, Withdrawing from Customary International Law: Some Lessons from History, 120 Yale L.J. Doctrines that defer to foreign lawmakers, like the conflict of laws, the act of state doctrine, and the presumption against extraterritoriality, are manifestations of prescriptive comity. . Some foreign officials are immune from suit based on their status. Close The conflict of laws and the enforcement of foreign judgments are governed by state law in the United States. Leather Co., 246 U.S. 297, 30304 (1918))). This categorization shows that courts have used international comity to defer to foreign lawmakers, to foreign courts, and to foreign governments as litigants, and that international comity has operated in each category both as a principle of recognition and as a principle of restraint. but domestic law is free to go beyond these minimum requirements and extend greater immunity as a matter of comity. but in most they are judge-made common law. The issue is not one of jurisdiction, but one of comity. (quoting Seattle Totems Hockey Club, Inc. v. Natl Hockey League, 652 F.2d 852, 855 (9th Cir. the Supreme Court recognized the authority of a federal court to dismiss a suit over which it had jurisdiction on grounds of forum non conveniens. Apr. 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. Recently, the Supreme Court has relied on international comity to reinforce limits on personal jurisdiction under the Due Process Clause itself. ,.. Close Close 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). Rev. Close <>>>/BBox[0 0 377.76 588]/Length 47>>stream 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). 378 and (more questionably) the doctrines of prudential exhaustion American Banana, 213 U.S. at 356. Id. 302 218 It is true that courts sometimes justify the extension of comity through assumptions about what the legislature would want. 351 . b (Am. Close See, e.g., Allied Bank Intl v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2d Cir. International comity - the property of a foreign state or government may not be taxed by another. Of course, a few of the examples in this Article, like international comity abstention and foreign official immunity, did not have the same salience when Posner and Sunstein published their Article in 2007. 16 0 obj 370 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.). 1604 (2012) (stating foreign state shall be immune from the jurisdiction of the courts of the United States and of the States subject to exceptions); Daimler AG v. Bauman, 134 S. Ct. 746, 763 (2014) (discussing due process limits on personal jurisdiction); Sabbatino, 376 U.S. at 427 (holding scope of act of state doctrine must be determined according to federal law). (The district court did not abuse its discretion when it considered whether exhaustion was required under the controlling plurality opinion of this court.), vacated on other grounds, 133 S. Ct. 1995 (2013); Paramedics Electromedicina Comercial, Ltda. application/pdf Although Empagran adopted Justice Scalias notion of prescriptive comity, its approach was quite different from his Hartford dissent. . 101 120 379 + Close .). (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? 68 Morrison rejected such a mechanical approach and instructed lower courts to determine the focus of the statute, which (as in Morrison) may be a place other than where the regulated conduct occurs. See, e.g., Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 129798 (3d Cir. 64 Rules for the immunities of diplomatic agents and consuls are set forth in the Vienna Convention on Diplomatic Relations 1987) (listing factors to determine if exercise of prescriptive jurisdiction is unreasonable); see also id. Close And when the court is asked to decline jurisdiction for lack of personal jurisdiction or on grounds of forum non conveniens, a foreign proceeding may not even have begun. Neither myth withstands scrutiny. 40 endstream .Some authorities include double taxation. v. U.S.), Judgment, 1959 I.C.J. 403 cmt. or the extraterritorial reach of domestic law. . Close The literature is voluminous. See, e.g., In re Microsoft Corp., No. 231 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), arts. 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