international comity taxation

2010) (en banc). <>>>/BBox[0 0 377.76 588]/Length 46>>stream Republic of Austria v. Altmann, 541 U.S. 677, 735 (2004) (Kennedy, J., dissenting). Achille Lauro, 937 F.2d 44, 4749 (2d Cir. Id. Close at 1207. . 135 or foreign state compulsion. Close See supra notes 186191 and accompanying text (discussing presumption against extraterritoriality). to see if they are sufficient to overcome the strong presumption in favor of the plaintiffs choice of forum. Close See Campbell McLachlan, Lis Pendens in International Litigation 36 (2009) (In fact, the term denotes only the notion of a dispute, a lis, already pending before another court or tribunal. 195 Close 19 Close Corp. v. Ryan Helicopters U.S.A., Inc., 180 F.3d 896, 898 (7th Cir. . 322 178 354 108 and instead articulated a number of factors to guide the district courts discretion. And while W.S. endstream 413 Whether any particular legal doctrine should take the form of a rule or a standard is a perennial question. It is precisely this discretionary aspect of comity that attracted the most criticism over the years. Close 2023-01-18T11:42:22-08:00 329 1827) (Porter, J.)) H 2012) (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). 265 Categorizing the doctrines also facilitates comparisons within and across categories and raises new questions. See, e.g., Or. the laws of one State have no operation outside of its territory, except so far as is allowed by comity). Close, Storys 1834 treatise Commentaries on the Conflict of Laws cemented comity into the foundations of American conflicts law. Hubers third maxim stated that a government would give effect to foreign laws within its territory only so far as they do not cause prejudice to the power or rights of such government or of its subjects. procedures compatible with. Hilton articulated clear rules for the enforcement of foreign judgments in the United States: [W]here there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment, or any other special reason why the comity of this nation should not allow it full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh. H endobj 2004); Republic of Philippines v. Westinghouse Elec. 11 (The Congress shall have power. 48 0 obj Due process B. As to the real estate, there is the following taxation scheme in Dubai, the UAE: when purchasing the immovable property in Dubai, the one-time cadastral tax in the amount of 4% of the purchase price of the property is charged. 70 Close endstream 169211. 259 Van Reimsdyk v. Kane, 28 F. Cas. which requires a showing of exceptional circumstances after consideration of several factors. 326 64 The expansion of personal jurisdiction created more opportunities for parallel proceedings, which American courts developed new tools to manage, like the doctrine of forum non conveniens They also point out that courts appear to have little understanding of what exactly comity consists, 208 ,.. arises out of the basic relationships between branches of government in a system of separation of powers.); 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). It was easy to justify comity as a principle of recognition on grounds of convenience because both parties to a contract had an interest in having it be enforceable and, by extension, in the enforceability of judgments based on the contract. Lower courts are divided on whether 1782 may be used for discovery in international arbitrations. of Iowa, 482 U.S. 522, 543 (1987) (noting concept of international comity requires particularized analysis of discovery requests). See infra notes 404410 and accompanying text (discussing passage of Foreign Sovereign Immunities Act). 102 Id. Under customary international law, for example, the United States may apply its law extraterritorially only if it has a basis for jurisdiction to prescribe. Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, (citing Huber). Close 239 Close . but no customary international law rule prohibiting the exercise of such jurisdictional bases has emerged. 893, 893 (1998) (International comity is frequently invoked by courts but rarely defined with precision.). Close For discussion of the extent to which the executive branch may control the access of foreign governments to U.S. courts, see infra note 371 and accompanying text. 8 400 395 See 1 L. Oppenheim, International Law: A Treatise 147, at 196 (1905) (Many States claim jurisdiction and threaten punishments for certain acts committed by a foreigner in foreign countries.); John B. Moore, Report on Extraterritorial Crime (1887), reprinted in 2 John Bassett Moore, A Digest of International Law 202, at 244 (1906) (The principle that a man who outside of a country willfully puts in motion a force to take effect in it is answerable at the place where the evil is done, is recognized in the criminal jurisprudence of all countries.). 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.). (discussing exhaustion of local remedies under international law). at 16364. at 117980 (discussing presumption against extraterritoriality, act of state doctrine, foreign sovereign immunity, and (mistakenly) Charming Betsy canon). Answers in Genesis, 556 F.3d at 467 (Colorado River instructed courts to consider several factors in determining whether to abstain in favor of a parallel proceeding in the courts of another sovereign.); Royal & Sun All., 466 F.3d at 94 (For two actions to be considered parallel, the parties in the actions need not be the same, but they must be substantially the same, litigating substantially the same issues in both actions.); Gross, 456 F.3d at 39394 (rejecting international comity abstention absent pending foreign proceeding); AAR Intl, 250 F.3d at 518 (In evaluating the propriety of the district courts decision to abstain under Colorado River, we must first determine whether the federal and foreign proceedings are parallel.); Al-Abood, 217 F.3d at 232 (The threshold question in deciding whether Colorado River abstention is appropriate is whether there are parallel suits.). 175 As a Principle of Recognition. 91 108 Close Federal courts exercising diversity jurisdiction apply the conflicts rules of the state in which they sit. <>>>/BBox[0 0 377.76 588]/Length 46>>stream It catalogues and categorizes the uses of international comity in American law, based on a reading of all the U.S. Supreme Court opinions mentioning comity, as well as a number of lower court decisions. income tax and tariffs Hilton v. Guyot: 159 U.S. 113 (1895) doctrine of comity: United States v. Gettysburg Electric Railway Co. 160 U.S. 668 (1896) Rosen v. United States: 161 U.S. 29 (1896) defendant's ability to inspect evidence at obscenity trial overcame objection that indictment was too vague Geer v. Connecticut: 161 U.S. 519 (1896) These doctrines defer to foreign lawmakers by limiting the reach of U.S. laws and thus protecting against possible conflicts with foreign law. 405 International law requires some immunities, Prohibition against taxation of non-stock, non-pro G.R. For a discussion of the Supreme Courts treatment of amicus briefs filed by foreign governments, see Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting). Sabbatino, 376 U.S. at 423. at 409. Close ,.. 392 endobj This Articles definition of international comity is based on a reading of all the U.S. Supreme Court cases that use the word comity 366 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). Like Huber, Story justified comity on the basis of mutual convenience and utility. See supra note 152 and accompanying text (explaining restraint was difficult to justify on basis of convenience). Sys. 209 For a more detailed discussion of the relationship between international comity and international law, see infra Part III. xs 71 Law Inst., Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute 11 cmt. TAX 628 - Tax Planning for the Owner-Manager and Executive Steve Barichello, Ruth Cummings. 315 Jun 27, 2012 (689 Phil. 90. 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. <>stream that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. See, e.g., In re French, 440 F.3d 145, 153 (4th Cir. 302 246 U.S. 297, 30304 (1918). The comity of nations, he wrote, is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another. b1NW0Nwn The Second Circuit has held that the Executive may waive the act of state doctrine in a particular case under the so-called Bernstein exception. w3TPI2T0 BC#=C3\. 327 . 15 0 obj See, e.g., Louis Kaplow, Rules Versus Standards: An Economic Analysis, 42 Duke L.J. 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.). 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. Yet international comity remains poorly understood. 116 Although adjudicative comity arises in many different contexts, the basic question is often the samewhether to defer to a foreign tribunals resolution of a dispute.

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