By Aakash Saxena
International Comity
It is a general rule that a sovereign has to follow its own rules and cannot go beyond what its laws are. But the rise of the concept of nation-state and, as a result of the nation-state concept, commercial and trading activities started between nations and this fragmentation brought about the conflict of laws between sovereigns. So as a result of that, the concept of limited territoriality was changed and law of foreign states was adopted by the court where the dispute was taken in order to protect the interest of the parties in dispute.
In this context of conflict of laws, the doctrine of international comity took birth. International comity is neither an obligation nor a mere courtesy and goodwill but it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, taking into consideration both international duty and convenience, and the rights of its own citizens or other persons who are under the protection of its laws.
Comity means the accepted rules of mutual conduct between State and State which each State adopts in relation to other States and expects other States to adopt in relation to itself.
Thus giving recognition to the laws of a sovereign nation as a respect and a contrivance to protect the rights of parties in issue has been termed as doctrine of international comity. So under this conception, the courts do not exercise comity; rather, a sovereign exercises comity and it is the role of the courts to effectuate the sovereign’s will because it is not the comity of courts but the comity of the nation which is administered and ascertained.
Statement of Issues under International Comity
Although the justification for the use of international comity as basis for private international law has shifted over time, the three basic questions have always persisted. The first is whether comity constitutes a rule of law or an expression of policy. The second, which dates from at least Story, is whether comity should be applied as categorical rules or as more flexible standards, and a third is whether reciprocity should be required as an aspect of comity.
Rule of Law or Expression of Policy
The first question is whether the concept of comity is a rule of law or an expression of policy. Some scholars have categorized it as rule of law and others as policy. However, the Supreme Court of America has held that international comity should be used in its widest sense. Although comity is required by customary international law in relatively few contexts, it has been incorporated into domestic law in a great many more.
Categorical Rules or Flexible Standards
The second question arises as to whether comity should be applied as rules and as flexible standards. Comity is certain though it is dependent on a variety of circumstances, which cannot be reduced within any certain rule. It is possible to develop categorical rules based on comity in a number of different areas. Thus, the determination of this question varies with the different category of the comity.
Question of Reciprocity
The third question is regarding reciprocity as an aspect of comity. Comity works better both to foster friendly relations and to promote commercial convenience if it is reciprocated. International law is based on reciprocity and mutuality. However, reciprocity does not seem to be required when it operates as principle of restraint. The absence of a reciprocity requirement for comity more generally is puzzling nowadays. A partial answer to the puzzling lack of reciprocity requirements in American law is the countervailing consideration of fairness.
Jurisprudential Aspect of International Comity Doctrine
Pre-Twentieth Century: Comity as Deference to Foreign Sovereigns
It is not really clear when this concept did take birth but it is understood that it came as a reaction against the pre-existing system of statutism. Theory of statutism was developed by the Italian jurists to determine particular law with the help of statutory interpretation. According to the statutism, the legal status of every person or thing was fixed in a certain place at a certain time and could not be altered: a person’s marital status would be determined by the place where the marriage was performed; property rights would be determined by the place where the property was physically located.
But later as a result of arrival of nation state people and goods became more mobile and the trading activities increased. As nation-states emerged, local law trumped the absolute authority of the Church and of Roman law and undermined claims of universality to any legal system. Statutism broke down under the pressure of competing national systems. Moreover, as commerce grew, so too did the frequency of contacts between merchants of different nationalities. Conflicts of law became more common.
Then came the theory propounded by Ulrich Huber, a Dutch jurist. He left upon the state to decide when to apply and how to apply comity principle. The sovereign will decide whether to apply comity and the courts then would effectuate the orders given by the sovereign. So it is the will of the state or sovereign which would determine the applicability of comity principle.
Eighteenth to Nineteenth Century: Comity as Respect for the Forum’s Public Policy
This was followed by the theory of Justice Story, who followed Mansfield and Huber, and envisioned the doctrine of international comity as a license for courts to deny foreign law when it conflicted with the forum’s own public policy.
Industrialization and the Separation of Public and Private Law
Unfortunately, Story’s elegantly framed doctrinal solution to the problem of slavery did not spare the United States the trauma of the Civil War, and the unity of public and private international law that he had envisioned barely survived the end of the nineteenth century. Again during this period comity was viewed as not an obligation but courtesy to the foreign state.
Early Twentieth Century: Comity as More Than Mere Courtesy
In Hilton v. Guyot, it was decided by Justice Gray that comity is neither an obligation nor a duty or goodwill; it is basically a recognition which one country allows to the laws of another foreign country, taking into consideration both the convenience and rights of the parties and international duty.
So in US a judgment of foreign court would be given effect only if the foreign court has given equivalent effect to the judgment of US court. So in this case also if French court would not have given effect to the US judgment then US court decided that it was under no obligation to give effect to French Court’s award of damages.
Thus, as the twentieth century began, it was still clear that the doctrine of comity derived from the respect that one sovereign paid to another.
The Post-War Era: Comity as Deference to the Autonomy of Private Parties and to the Executive
Comity is a doctrine long recognized by courts and enforcement agencies through which they take into account the interests of other sovereign jurisdictions in resolving cases. But comity, it seems, can have different meanings to different people, and so it may be useful to see how it has been defined and applied in specific contexts.
India
In Indian context, it has been suggested that doctrine of comity of nations is the basis for applying the principles of conflict of laws. The better view appears to be that the basis is the need to do justice to the parties through the doctrine of comity is increasingly applying in selecting the appropriate law to be applied in a particular case. It is worth noting in this context that English Courts readily apply the law of a country with which England may be at war in a private dispute, which they would hardly do if the basis of conflict of laws is the comity of nations.
Comity means the accepted rules of mutual conduct between State and State which each State adopts in relation to other States and expects other States to adopt in relation to itself. The doctrine has been increasingly applied in the field of anti-suit injunctions when the suit has been filed in a foreign country. An instance of Indian Parliament recognizing the rule of comity occurs in Section 11 of the Foreign Marriage Act 1969.
United States
In the law of the United States, comity may refer to the privileges and immunities clause (sometimes called the comity clause) in Article Four of the United States Constitution. International norms of comity are an important means of mitigating the problems that arise from the uncoordinated and unrestrained extraterritorial application of laws.
American courts have invoked and used international comity for more than two centuries, and yet its functions in American law remain poorly understood. Comity has been observed as a concept with almost as many meanings as sovereignty by different authors. The original function of comity was to give effect to the laws of one nation within the territory of another. In the United States, it served as the basis for the conflict of laws and the enforcement of foreign judgments.
But today it is common to see American courts use comity not to recognize foreign law but to restrain the reach of domestic law. American courts have invoked “international comity” expressly, however, in considering whether to decline jurisdiction in favour of a pending foreign proceeding.
Canada
In Canada, this doctrine is being treated as international “full faith and credit obligation.” The Supreme Court of Canada also has, like the US court in Hilton Case, cautioned against using the doctrine of international comity to make the recognition and enforcement of foreign judgements automatic and hence, obligatory. It explained that fairness to the decision requires that the judgement be issued by a court acting through fair process, with properly restrained conduct, and that there be remedies available to the recognising court that may afford redress to the defendant in certain cases such as fraud or conflict with the laws or public policy of the recognising jurisdiction.
In Pro Swing Inc. v. Elta Golf Corp., it was held by the Canadian Courts that comity requires the enforcing courts to enforce foreign injunctions for which the other court would have acted.
United Kingdom
English Courts also use the doctrine of comity to justify the rejection of foreign law or to justify disregarding foreign legal proceeding. In the case of OT Africa Line Ltd. v. Magic Sportswear, the Court held that as a matter of English law, the English Court will have the jurisdiction and restrain any breach by the parties seeking to invoke the foreign jurisdiction.
Criticism of Comity and Conclusion
Justice Gray’s definition of comity has been the subject of a host of academic criticism in both England and the United States. Much of the academic criticism of Justice Gray’s attempted definition, and of definitions of comity in general, has been directed at the difficulty of defining comity with sufficient specificity so as to indicate how its principles might apply in specific cases. Nevertheless, even in the face of such criticism, the definition of comity offered in Hilton is far and away the most cited language on comity in all of American law.