Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), noted that in the antitrust context, courts in certain instances will defer to foreign antitrust laws through the principle of comity of nations, even if that deference to foreign law will directly affect United States commerce. The court held that in addition to applying the effects test (which says that U.S. courts have jurisdiction to hear cases involving acts abroad as long as the acts’ effects are felt within the United States), there must also be consideration of comity of nations and international fairness: “The effects test by itself is incomplete because it fails to consider other nations’ interests. Nor does it expressly take into account the full nature of the relationship between the actors and this country…. [Courts must ask] whether the interests of, and links to, the United States—including the magnitude of the effects on American foreign commerce—are sufficiently strong, vis-à-vis those of other nations, to justify an assertion of extraterritorial authority….”
comity of nations
Definition
The principle that one sovereign nation voluntarily adopts or enforces the laws of another sovereign nation out of deference, mutuality, and respect.
Unlike enforcement of judgments between states in the United States (which is governed by the Comity Clause of the Constitution), there is no Constitutional obligation on a U.S. court to recognize or enforce a foreign judgment. Neither is comity of nations embodied in international law. However, sovereign nations still use comity of nations for public policy reasons.
Under comity, a reviewing court does not reopen cases that have already been heard in other courts; instead, it examines the foreign judicial system. After considering factors (such as fairness and impartiality of that foreign system, the foreign court’s personal jurisdiction over the defendant, the existence of subject matter jurisdiction, and the presence of fraud), the reviewing court might choose to respect and enforce that foreign court’s judgments.
Comity of nations is considered in forum non conveniens, antisuit injunctions, antitrust claims, conflict of laws, extraterritorial discovery, and the recognition of foreign judgments.
Definition from Nolo’s Plain-English Law Dictionary
Definition provided by Nolo’s Plain-English Law Dictionary.
August 19, 2010, 5:12 pm
“Until 1952, the United States generally afforded foreign sovereigns absolute immunity from the jurisdiction of the courts, including complete immunity from execution. Unlike state or federal sovereign immunity, foreign sovereign immunity does not derive from the constitution. Foreign sovereign immunity instead derives from concerns of grace and comity between nations. As a result, the Supreme Court regularly deferred to the Executive Branch in determining whether to take jurisdiction over a case concerning a foreign sovereign. The Executive was in a better position to anticipate the foreign relations consequences of subjecting a foreign state to suit in a U.S. court. Under the theory of absolute sovereign immunity, the Executive would regularly recommend that courts decline to take jurisdiction over any case against a foreign sovereign.” J. Garza, Connecticut Bank of Commerce v. Republic of Congo, 309 F.3d 240, 251 (5th Cir. 2002).
