Comity

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In law, comity is "a principle or practice among political entities such as countries, states, or courts of different jurisdictions, whereby legislative, executive, and judicial acts are mutually recognized." [1] It is an informal and non-mandatory courtesy to which a court of one jurisdiction affords to the court of another jurisdiction when determining questions where the law or interests of another country are involved. [2] Comity is founded on the concept of sovereign equality among states and is expected to be reciprocal. [3]

Contents

Etymology

The term comity was derived in the 16th century from the French comité, meaning association and from the Latin cōmitās , meaning courtesy and from cōmis , friendly, courteous. [4]

Comity may also be referred to as judicial comity or comity of nations. [5]

History of comity (thirteenth century to nineteenth century)

The doctrine of international comity has been described variously "as a choice-of-law principle, a synonym for private international law, a rule of public international law, a moral obligation, expediency, courtesy, reciprocity, utility, or diplomacy. Authorities disagree on whether comity is a rule of natural law, custom, treaty, or domestic law. Indeed, there is not even agreement that comity is a rule of law at all." [6] Because the doctrine touches on many different principles, it is regarded as "one of the more confusing doctrines evoked in cases touching upon the interests of foreign states." [7] The principle of comity has been questioned and even rejected by many scholars throughout the years; however, the use of the term remains present in case law. [8]

European jurists have been wrestling with the decision to apply foreign law since the thirteenth century. [9] As the popularity of commerce outside of the locality grew, the need to find a new way to resolve conflicts of law issues arose. [9] The preexisting system known as statutism became too complex and arbitrary to keep up with the societal values of the time. [9]

A group of Dutch jurists created the doctrine of international comity in the late seventeenth century, most prominently Ulrich Huber. [10] [11] Huber and others sought a way to handle conflicts of law more pragmatically to reinforce the idea of sovereign independence. [10] At the core of his ideas surrounding comity was the respect of one sovereign nation to another. [10] Huber wrote that comitas gentium ("civility of nations") required the application of foreign law in certain cases because sovereigns "so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the powers or rights of such government or of their subjects." [12] Huber "believed that comity was a principle of international law" but also that "the decision to apply foreign law itself was left up to the state as an act of free will." [10]

Huber did not believe comity was a stand-alone principle but rather saw it as a basis for building concrete rules and doctrines of law. [13] At the time of its inception in the common law, comity was an attractive principle as the United States and England were in search for a foundational principle by which they could build conflicts of law rules. [13]

A century after Huber, Lord Mansfield, known for being Chief Justice of the Court of King’s Bench in England for three decades, introduced the doctrine of comity to the English law. [14] Lord Mansfield viewed the application of comity as discretionary, with courts applying foreign law "except to the extent that it conflicted with principles of natural justice or public policy." [15] He demonstrated this principle in Somerset v Stewart (King's Bench 1772), which held that slavery was so morally odious that a British court would not recognize the property rights of an American slaveholder in his slave out of comity. [15] English courts and scholars adopted Lord Mansfield ideas on comity and provides a new means for courts to recognize foreign law where the application of English law would lead to injustices. [16]

Comity was most famously introduced to the American common law by the American jurist Justice Joseph Story in the early nineteenth century. [17] Much like Huber, Story sought to develop a new system of private international law that reflected the new commercial needs of the United States. [17] Similar to Lord Mansfield, Story stressed the importance of justice in comity and that comity is a stand-alone principle that derives from mutual benefit. [18] Story's view, which ultimately prevailed, was that the consensual or voluntary application of comity doctrine would foster trust among states, "localize the effect of slavery," and reduce the risk of civil war. [15]

In the mid-nineteenth century, John Westlake advanced further the idea that States ought to act with comity for reasons of justice in his Treatise on Private International Law. [19] Westlake is praised for adopting Huber’s comity in the English law; he rejected Story’s approach. [19] Westlake states that conflict rules are an instance of domestic sovereignty and therefore, the duty to recognize foreign law must be found as a reason within English law itself. [20]

United States

In the law of the United States, the Comity Clause is another term for the Privileges and Immunities Clause of the Article Four of the United States Constitution, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." [21] Article Four as a whole—which includes the Privileges and Immunities Clause, the Extradition Clause, and the Full Faith and Credit Clause —has been described as the "interstate comity" article of the Constitution. [22]

In the case of Bank of Agusta v Earl, the court adopted Justice Joseph Story’s doctrine of comity. [23] At the end of the ninetieth century, the US Supreme Court delivered the classic statement on comity in the decision of Hilton v. Guyot (1895). The court stated that the enforcement of a foreign judgment was a matter of comity is viewed as the "classic" statement of comity in international law. [24] [25] [26] The Court held in that case: [27]

"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. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

This case continues to be the leading case cited by American courts when articulating the doctrine of comity. [28] It is an important decision for the country as it articulates the definition of comity and does so in a more broad way than previously. Despite the broad definition in Hilton v Guyot, the court refused to enforce the French judgment based on reciprocity, as France would not have enforced an equivalent judgment. [28]   This decision differed from Justice Joseph Story’s idea of comity as his idea of comity was concerned with sovereign interests and was rather concerned with reciprocity. [28]

The United States faced significant development after the Second World War, and this transformed the principle of comity into something that more closely resembled an obligation to apply foreign law. [29] After the Cold War, the Supreme Court heard the case of Hartford Fire Insurance Co v California. [30] In this case, Justice Souter gave the opinion that one only considers comity where there is a “true conflict between domestic and foreign law”. In the dissent, Justice Scalia argues that extraterritorial jurisdiction must consider international comity to ensure international law is not violated. [30] More than ten years later, the Supreme Court heard the decision of F. Hoffman-La Roche, Ltd. v Empagran, S.A. where Justice Kennedy writing for the majority adopted Justice Scalia’s dissent. [31]

In the United States, certain foreign defamation judgments are not recognized under the SPEECH Act (a federal statute enacted in 2010), which supersedes the comity doctrine. The Act aims to stop "libel tourism." [32]

Professional Licensure

In the United States, some states and territories recognize professional engineer licenses granted in a different jurisdiction, depending on the holder's education and experience (a practice called "licensure by comity"). Rules differ significantly from jurisdiction to jurisdiction. [33]

United Kingdom

By the end of the nineteenth century, comity had received judicial approval in England as a foundational principle to private international law. [34] In 1896, Professor Dicey published “Digest of the Law of England with Reference to the Conflict of Laws” that criticized the doctrine of comity on the basis that it is too vague as it promoted the recognition of foreign laws depending on option. [34]

Despite the debate on the role of the principle of comity in academia, the Supreme Court and the House of Lords have recognized the role of comity in the United Kingdom. [35] However, the courts have yet to adopt a precise definition of comity. [35] The case law indicates that comity is relevant in the consideration of determining what effect another state's laws or judicial power should have in England in a given case. [35]

Canada (excluding Quebec)

Unlike the United States of America and Australia, the principle of comity or Full Faith and Credit of recognizing judgments across the country is not recognized in the Canadian constitution or other authoritative bases. However, beginning in the 1990s the courts started to discuss the principle of comity as it relates interprovincially and internationally in a series of cases and adopted the principle of comity as a critical feature underlying Canadian private international law. [36]

Morguard Investments Ltd. v De Savoye was the first case in this series considering comity in Canadian law. [37] The common law reflected the principle from England that one of the basic tenets of international law is that sovereign states have exclusive jurisdiction in their territory. [38] Therefore, before this decision, Canadian courts were conservative in recognizing foreign judgments, including those obtained in other Canadian provinces' courts. [39] Justice La Forest acknowledges that the common law approach is not grounded in the realities of modern times as states cannot live in complete isolation due to travel, flow of wealth, skills and people. [38] Especially interprovincially, the Canadian Constitution was created to form a single country; therefore, there is no foundation for differential quality of justice in the Canadian judicial structure. [38] In response to modern-day values, Justice LaForest notes the Supreme Court of the United States' approach to comity in Hilton v Guyot and explains that comity is a necessary principle to ensure order and fairness in modern-day transactions. [38] Still, it is not a matter of absolute obligation but rather a voluntary matter based on common interests. [40] Comity is not only based on respect for foreign sovereignty but also convenience and necessity, and the court held that the principle of comity called for a more liberal approach to foreign judgments. [38] The court chose to revise the common law test and enforce a judgment with a "real and substantial connection" between the action or damages suffered and the adjudicating jurisdiction. [39] This decision had important implications for both interprovincial and international litigations as Canadian courts began to engage with the comity in judgment enforcement.

The following case addressing comity was Hunt v T&N; the court elaborated on their decision in Morguard by stating that comity is “grounded in notions of order and fairness to participants”. [37] Hunt v T&N is not about enforcement of judgment but rather about the constitutional validity of provincial legislation and its effect on another province's legislation to the proceeding before it. In this case, the Supreme Court of Canada rewrote the rules on the extraterritorial effects of provincial legislation. [41] These extraterritorial effects of provincial legislation will be assessed according to the principle of comity. [41]

In the case of Tolofson v Jensen, the court answers the question of which law should govern in tort when the interest of more than one jurisdiction is involved. [42] The court determines that the law of where the tort occurred should apply, this is known as lex loci delicti. Justice La Forest clearly reaffirmed the importance of comity in private international law in the decision. [42] The court states that the choice of law is where the tort occurred for reasons of comity, order and fairness. [42] The court states that international comity helps ensure “harmony” in the face of potential conflicts of law. [43]

Australia

The Australian Constitution recognizes that the Full Faith and Credit should be afforded to all common law countries: [44]

“Full faith and credit shall be given, throughout the Commonwealth, to the laws, the public Acts and records, and the judicial proceedings of any State.”

In case law, the High Court of Australia has never defined the meaning of comity in Australian law. [45] However, the High Court has adopted and approved the definition of comity from the United States Supreme Court in Hilton v Guyot, with the first reference to it being in 1999 in the decision of Lipohar v The Queen. [45] Comity has played an important role in the development and application of Australian private law. [45] It has been used by courts most frequently in navigating sovereign sensitivities and economic realities. [46]          

European Union

The Brussels 1 Regulation requires that the judgment of the court of one member states of the European Union (absence non-consenting defendants) shall be enforced by the court of another member state. [47]

See also

Related Research Articles

Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.

Conflict of laws is the set of rules or laws a jurisdiction applies to a case, transaction, or other occurrence that has connections to more than one jurisdiction. This body of law deals with three broad topics: jurisdiction, rules regarding when it is appropriate for a court to hear such a case; foreign judgments, dealing with the rules by which a court in one jurisdiction mandates compliance with a ruling of a court in another jurisdiction; and choice of law, which addresses the question of which substantive laws will be applied in such a case. These issues can arise in any private-law context, but they are especially prevalent in contract law and tort law.

Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.

Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

Forum non conveniens (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal case, and transfers the case to such a forum. A change of venue might be ordered, for example, to transfer a case to a jurisdiction within which an accident or incident underlying the litigation occurred and where all the witnesses reside.

International law, also known as "law of nations", refers to the body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.

<i>Morguard Investments Ltd v De Savoye</i> Supreme Court of Canada case

Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 is the leading decision of the Supreme Court of Canada on the enforcement of extraprovincial judgments. The Court held that the standard for enforcing a default judgment from a different province is not the same as if it were from another country; rather the Court adopts the test from Indyka v Indyka, [1969] 1 AC 33 (HL) and Moran v Pyle National (Canada) Ltd, [1975] 1 SCR 393 where there must be a "real and substantial connection" between the petitioner and the country or territory exercising jurisdiction.

<i>Hunt v T&N plc</i> Supreme Court of Canada case

Hunt v T&N plc, [1993] 4 S.C.R. 289 is a landmark decision of the Supreme Court of Canada on conflict of laws. The Court ruled that the Quebec law prohibiting the removal of company documents from the province was constitutionally inapplicable to a British Columbia court order. The decision was significant in that it affirmed much of the reasoning from Morguard Investments Ltd. v. De Savoye (1990) and further held that the principles first identified in Morguard are fundamental to the constitution.

The act-of-state doctrine or federal act of state doctrine is a principle of federal common law in the United States which states, in circumstances where it applies, that courts in the United States will not rule on the validity of another government's (formal) sovereign act with respect to property located within the latter's own territory. The act-of-state doctrine enters consideration most often in cases where a foreign sovereign has expropriated the property of a U.S. national located in that foreign territory.

The Schooner Exchange v. M'Faddon, 11 U.S. 116 (1812), is a United States Supreme Court case on the jurisdiction of federal courts over a claim against a friendly foreign military vessel visiting an American port. The court interpreted customary international law to determine that there was no jurisdiction.

International law is the set of rules, norms, and standards generally recognized as binding between states. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. International law differs from state-based domestic legal systems in that it is primarily, though not exclusively, applicable to states, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states. States may choose to not abide by international law, and even to breach a treaty but such violations, particularly of peremptory norms, can be met with disapproval by others and in some cases coercive action ranging from diplomatic and economic sanctions to war.

Hilton v. Guyot, 159 U.S. 113 (1895), was a United States Supreme Court case where the Court ruled that the recognition and enforceability of a foreign judgment rested on the "comity of nations," namely whether there would be any reciprocity and mutual recognition by the foreign jurisdiction from which the judgment was issued.

In law, the principle of aut dedere aut judicare refers to the legal obligation of states under public international law to prosecute persons who commit serious international crimes where no other state has requested extradition. However, the Lockerbie case demonstrated that the requirement to extradite or prosecute is not a rule of customary international law. The obligation arises regardless of the extraterritorial nature of the crime and regardless of the fact that the perpetrator and victim may be of alien nationality. It is generally included as part of international treaties dealing with an array of transnational crimes to facilitate bringing perpetrators to justice.

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References

  1. ↑ Black's Law Dictionary (10th ed. 2014), p. 324.
  2. ↑ Barron's Canadian Law Dictionary (6th ed.). 2009.
  3. ↑ A Dictionary of Law (10th ed.). Oxford University Press. 2022.
  4. ↑ Online Etymology Dictionary. "Comity". Online Etymology Dictionary.
  5. ↑ Oxford English Dictionary (2nd ed.). Oxford University Press. 2000.
  6. ↑ Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 19–20. JSTOR   27654664 – via JSTOR.
  7. ↑ International Human Rights Litigation in U.S. Courts:, 2d rev. ed. (Martinus Nijhoff, 2008: eds. Beth Stephens et al.), p. 355.
  8. ↑ Schultz, Thomas. "Comity and International Courts and Tribunals". Cornell International Law Journal. 50 (3): 578–610.
  9. 1 2 3 Paul, Joel (2008). "Transformation of International Comity". Law & Contemporary Problems. 71 (3): 21. JSTOR   27654664 – via JSTOR.
  10. 1 2 3 4 Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 22–23. JSTOR   27654664 – via JSTOR.
  11. ↑ Hessel E. Yntema, The Comity Doctrine, 65 Michigan Law Review 9, 9 (1966).
  12. ↑ Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 23. JSTOR   27654664 – via JSTOR. (quoting Ernest G. Lorenzen, Huber's De Conflictu Legum, 13 Illinois Law Review 375, 376 (1919)).
  13. 1 2 Shultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (2): 15. SSRN   3405341 – via SSRN.
  14. ↑ Llewellyn, Karl. "William Murray, 1st earl of Mansfield". Britannica.
  15. 1 2 3 Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 23–24. JSTOR   27654664 – via JSTOR.
  16. ↑ Schultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (2): 21. SSRN   3405341 – via SSRN.
  17. 1 2 Schultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (2): 16. SSRN   3405341 – via SSRN.
  18. ↑ Schultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (2): 18. SSRN   3405341 – via SSRN.
  19. 1 2 Schultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (4): 23. SSRN   3405341 – via SSRN.
  20. ↑ Schultz, Thomas (2019). "The History of Comity". Jus Gentium: Journal of International Legal History. 4 (2): 22. SSRN   3405341 – via SSRN.
  21. ↑ John E. Nowak & Ronald D. Rotunda Principles of Constitutional Law (Thomson/West, 2007), p. 213.
  22. ↑ William L. Reynolds & William M. Richman, The Full Faith and Credit Clause: A Reference Guide to the United States Constitution (Praeger, 2005), p. xvii.
  23. ↑ Dodge, William (2015). "International Comity in American Law". Columbia Law Review. 115 (8): 2071–2142. doi:10.2139/ssrn.2558175. S2CID   262888374. SSRN   2558175 – via SSRN.
  24. ↑ Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 27. JSTOR   27654664 – via JSTOR.
  25. ↑ International Human Rights Litigation in U.S. Courts:, 2d rev. ed., p. 355.
  26. ↑ Thomas Schultz & Niccolò Ridi, Comity in US Courts, 10(1) North Eastern University Law Review 280, 286–287 (2018).
  27. ↑ ''Hilton v. Guyot'', 159 U.S. 113, 163–64 (1895).
  28. 1 2 3 Childress, Donald (2010). "Comity as Conflict: Resituating International Comity as Conflict of Laws". University of California, Davis. 44 (11): 30–32. SSRN   1576633 – via SSRN.
  29. ↑ Paul, Joel (2008). "The Transformation of International Comity". Law & Contemporary Problems. 71 (3): 28. JSTOR   27654664 – via JSTOR.
  30. 1 2 Paul, Joel (2008). "The Transformation of International Comity". Law & Contemporary Problems. 71 (3): 35. JSTOR   27654664 – via JSTOR.
  31. ↑ Paul, Joel (2008). "The Transformation of International Comity". Law and Contemporary Problems. 71 (3): 36. JSTOR   27654664 – via JSTOR.
  32. ↑ Dana Green, The SPEECH Act Provides Protection Against Foreign Libel Judgments Archived 2016-03-18 at the Wayback Machine , Litigation News (American Bar Association Section of Litigation).
  33. ↑ Licensure by Comity, National Society of Professional Engineers (accessed March 29, 2016).
  34. 1 2 Yntema, Hessel (1953). "The Historic Bases of Private International Law". The American Journal of Comparative Law. 2 (3): 307–308. doi:10.2307/837480. JSTOR   837480 – via JSTOR.
  35. 1 2 3 Schultz, Thomas (2018). "Rediscovering the Principle of Comity in English Private International Law". European Review of Private Law. 26: 4. SSRN   3159985 – via SSRN.
  36. ↑ Sun, Kerry (2019). "International Comity and the Construction of the Charter's Limits: Hape Revisited". Queen's Law Journal. 45 (1): 123. SSRN   3491997 – via SSRN.
  37. 1 2 Sun, Kerry (2019). "International Comity and the Construction of the Charter's Limits: Hape Revisited". Queen's Law Journal. 45 (1): 131. SSRN   3491997 – via SSRN.
  38. 1 2 3 4 5 Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077.
  39. 1 2 Glenn, H. Patrick (1992). "Foreign Judgments, the Common Law and the Constitution: De Savoye v. Morguard Investments Ltd". McGill Law Journal. 37 (2) – via McGill Law.
  40. ↑ Sun, Kerry (2019). "International Comity and the Construction of the Charter's Limits: Hape Revisited". Queen's Law Journal. 45 (1): 131. SSRN   3491997 – via SSRN.
  41. 1 2 Wisner, Robert (1995). "Uniformity, Diversity and Provincial Extraterritoriality: Hunt v. T&N plc". McGill Law Journal. 40 (3) – via McGill Law.
  42. 1 2 3 Tolofson v Jensen, [1994] 3 SCR 1022.
  43. ↑ Sun, Kerry (2019). "International Comity and the Construction of the Charter's Limits: Hape Revisited". Queen's Law Journal. 45 (1): 132. SSRN   3491997 – via SSRN.
  44. ↑ Constitution of Australia, chapter 7, section 118.
  45. 1 2 3 Schultz, Thomas (2016). "Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts". Journal of Private International Law. 12 (2): 344–378. doi:10.1080/17441048.2016.1206704. S2CID   156049081. SSRN   2737838 – via SSRN.
  46. ↑ Schultz, Thomas (2016). "Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts". Journal of Private International Law. 12 (2): 37–38. doi:10.1080/17441048.2016.1206704. S2CID   156049081. SSRN   2737838 – via SSRN.
  47. ↑ Regulation (EU) No 1215/2012, articles 2, 36, 39.
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