Escaping "International Comity"

Iowa Law Review

Volumn 83, Issue 5, 1998, Pages 893-951

  Ramsey, Michael D ^a,b,c  

^a UNIVERSITY OF SAN DIEGO   (United States)

^b DARTMOUTH COLLEGE   (United States)

^c STANFORD LAW SCHOOL   (United States)

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EID: 1542740758     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (278)

1. Philips Med. Sys. Int'l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir. 1993).
2. Hilton v. Guyot, 159 U.S. 113, 163-64 (1895); see, e.g., Pravin Banker Assoc., Ltd. v. Banco Popular del Peru, 109 F.3d 850, 854 (2d Cir. 1997) (quoting Hilton).
3. Hilton, 159 U.S. at 163-64.
4. Bruetman, 8 F.3d at 604.
5. 109 F.3d at 859.
6. 113 F.3d 540 (5th Cir. 1997).
7. Pravin, 109 F.3d at 852-54. Peru was a guarantor of Banco Popular's obligation. Id. at 853.
8. Torres, 113 F.3d at 543.
9. Pravin, 109 F.3d at 855. According to the court, "United States courts ordinarily refuse to review acts of foreign governments and defer to proceedings taking place in foreign countries allowing those acts and proceedings to have extraterritorial effect in the United States . . . ." However, courts do not defer to the acts and proceedings of foreign governments "when doing so would be contrary to the policies or prejudicial to the interests of the United States." Because "the United States has a strong interest in ensuring the enforceability of valid debts under the principles of contract law" the court found the application of comity inappropriate. Id. at 854-55.
10. Torres, 113 F.3d at 544, aff'g Torres v. Southern Peru Copper Co., 965 F. Supp. 899 (S.D. Tex. 1996).
11. Philips Med. Sys. Int'l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir. 1993).
12. The present inquiry focuses upon the actual applications of "international comity" in modern federal decisions. For more complete theoretical and historical accounts, see, e.g., Joel R. Paul, Comity in International Law, 32 Harv. Int'l L.J. 1 (1991); Hessel E. Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9 (1966).
13. The present inquiry focuses upon the actual applications of "international comity" in modern federal decisions. For more complete theoretical and historical accounts, see, e.g., Joel R. Paul, Comity in International Law, 32 Harv. Int'l L.J. 1 (1991); Hessel E. Yntema, The Comity Doctrine, 65 Mich. L. Rev. 9 (1966).
14. As this is an inquiry into federal practice, I leave aside the obviously related question of state court practice. I am also not immediately concerned with recognition of interstate (as opposed to international) acts. On both points there is substantial commentary, generally grouped under the heading "conflict of laws" or "choice of law." See Restatement (Second) of Conflicts of Law §§ 1-6 (1969) (describing general choice of law principles and defining terms). For recent discussions, see, for example, Lea Brilmayer, Conflict of Laws: Foundations and Future Directions §§ 1.1.1 to 1.1.3, at 13-18 (1991); Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277 (1990); Louise Weinberg, Against Comity, 80 Geo. L.J. 53 (1991). In so limiting the inquiry I do not contend, necessarily, that the other fields are fully distinct, although plainly they do involve some distinct considerations.
15. As this is an inquiry into federal practice, I leave aside the obviously related question of state court practice. I am also not immediately concerned with recognition of interstate (as opposed to international) acts. On both points there is substantial commentary, generally grouped under the heading "conflict of laws" or "choice of law." See Restatement (Second) of Conflicts of Law §§ 1-6 (1969) (describing general choice of law principles and defining terms). For recent discussions, see, for example, Lea Brilmayer, Conflict of Laws: Foundations and Future Directions §§ 1.1.1 to 1.1.3, at 13-18 (1991); Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277 (1990); Louise Weinberg, Against Comity, 80 Geo. L.J. 53 (1991). In so limiting the inquiry I do not contend, necessarily, that the other fields are fully distinct, although plainly they do involve some distinct considerations.
16. The Supreme Court has stated: The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call "the comity of nations." Although the phrase has been often criticised, no satisfactory substitute has been suggested. Hilton v. Guyot, 159 U.S. 113, 163 (1895) (emphasis added). As set forth below, my intent is to suggest a "satisfactory substitute," not in the form of a single phrase attempting to capture the various aspects of what may be called comity, but by dividing that imprecise term into its constituent parts and providing a precise name for each. The troublesome aspect of the name to which the Supreme Court alluded was not in fact the name itself, but the fact that that name was (and continues to be) inexactly stretched to cover very distinct areas of the law.
17. See Joseph Story, Commentaries on the Conflict of Laws § 33 (1st ed. 1834)(discussing "comity" as an expression of the duty of one nation to give effect to the laws of other nations); Hilton, 159 U.S. at 164 (same).
18. I speak here and throughout this Article only of "international comity" used in connection with the "effect-of-foreign-acts" inquiry. The phrase may have its uses elsewhere, with which I do not quarrel. For example, it has been said that the degree of insult to a foreign court is an element in a U.S. court's equitable decision whether to grant an antisuit injunction preventing a party from pursuing a claim in a foreign jurisdiction. See, e.g., Bruetman, 8 F.3d at 604-05 (stating that fear of "ruffl[ing] relations . . . has led some courts to withhold injunctive relief . . . unless necessary"); Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1352-54 (6th Cir. 1992) (indicating reluctance to grant antisuit injunctions because the United States cannot "impose its economic will on the rest of the world and expect meek compliance"). Similarly, a court may describe itself as exercising "comity" when it temporarily restrains an action before it to allow parallel proceedings to proceed elsewhere. See Allstate Life Ins. Co. v. Linter Group Ltd., 994 F.2d 996, 998-99 (2d Cir. 1993) (affirming dismissal pending the resolution of parallel proceeding in Australian courts). These are matters of judicial administration that do not involve the recognition (or nonrecognition) of foreign acts. See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993) (Scalia, J., dissenting) (distinguishing between "comity of courts" - meaning the administration of parallel proceedings as reflected in a case such as Linter - and the effect-of-foreign-acts inquiry denominated "comity of nations"). In like manner, in the domestic context, "comity" - meaning the appropriate relationship between state and federal courts - is said, to underlie various doctrines of federalism. See Younger v. Harris, 401 U.S. 37, 56 (1971) (holding that federal courts will not enjoin pending state criminal prosecutions except where the danger of irreparable injury is "both great and immediate"). These matters are distinct from the "effect-of-foreign-acts" inquiry and I am not presently concerned with their description (so long as they are, in fact, understood to be distinct).
19. Hilton, 159 U.S. at 166.
20. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435 (3d Cir. 1971), cited in Pravin, 109 F.3d at 854.
21. Id. at 440-44.
22. Hilton, 159 U.S. at 202; see also Somportex, 453 F.2d at 440 (paraphrasing the foregoing passage from Hilton). Although various statutes and agreements bear upon the issue of recognition of foreign judgments in particular contexts, see, e.g., Recognition of Foreign Country Money Judgments, Consolidated Laws of New York, Art. 53 (1997), the "rule" I have in mind here is judicially created, as illustrated by the Hilton case. The effects and motivating policies of the common-law rule and of more recent codifications are, however, substantially similar.
23. See Somportex, 453 F.2d at 440-44, in which the U.S. court reviewed both the adequacy of the British court's investigation of jurisdictional facts and the fairness of certain British procedures challenged by the defendants.
24. See generally Jack N. Friedenthal et al., Civil Procedure 609-83 (2d ed. 1993).
25. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981) (quoting Baldwin v. Iowa State Traveling Men's Ass'n, 283 U.S. 522, 525 (1931)).
26. See Moitie, 452 U.S. at 401-02 (discussing justification for the doctrine of res judicata).
27. U.S. Const, art. IV, § 1 ("Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State"); see Hilton, 159 U.S. at 180-81 (discussing origins of the Full Faith and Credit Clause with respect to judicial decisions).
28. See Baldwin, 283 U.S. at 524-26 (applying res judicata to judgment of one federal district court sought to be relitigated in a different federal district).
29. See supra notes 19-20 and accompanying text (describing the criteria used to determine whether a prior foreign adjudication is procedurally satisfactory); Restatement (Third) of Foreign Relations Law § 482 (1987) (same).
30. Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354 (10th Cir. 1996).
31. Id. at 356-57.
32. Id. at 358-61.
33. Note, however, where the foreign judgment is based on foreign law (as it usually will be) there is an additional consideration. In recognizing the foreign judgment a U.S. court would also be, in effect, enforcing that foreign law. To the extent there are domestic concerns limiting such enforcement - i.e., that would apply to a cause of action initially filed in U.S. court based on foreign law - these concerns must also be considered. Principally, the relevant concerns are that U.S. courts will not enforce foreign law contrary to U.S. law or public policy, and will not, in any event, enforce foreign penal or revenue laws. This aspect of the inquiry is discussed below. See infra Part III.B (discussing enforcement of foreign laws by U.S. courts); see also British Columbia v. Gilbertson, 597 F.2d 1161, 1164 (9th Cir. 1979) (declining to enforce judgment of tax deficiency obtained in Canadian courts, on grounds that U.S. courts decline to enforce foreign revenue laws). Thus, a litigant seeking to enforce a foreign judgment typically makes a twofold showing: that the foreign law is substantively unobjectionable and that the foreign court is procedurally unobjectionable. Of course, often - as in Somportex - the former will not be a material issue because the applicable substantive law will not be materially distinct from U.S. law.
34. In the absence of positive law on the subject, courts could have evolved a more restrictive doctrine imposing additional limitations upon the recognition of foreign judgment. In declining to do so, some measure of respect for foreign courts may have figured in the judicial calculus, and it is not central to my argument to show otherwise. Rather, my point is that this is not an essential part of the policy considerations. The doctrine is amply supported by considerations unrelated to "comity" and comity cannot be an overriding factor, else U.S. courts would not undertake the non-respectful task of evaluating the integrity of foreign courts. The latter point illustrates that, while respect may be a value underlying the doctrine in part, it gives way to the stronger policies - judicial economy and individual fairness - when the policies conflict.
35. The doctrinal disjunction of the law of recognition of judgments from the ordinary law of res judicata was in part driven by the Supreme Court's opinion in Hilton. In addition to the foregoing requirements for recognition of a foreign judgment (essentially, fairness of the process), Justice Gray's opinion sought to introduce the concept of reciprocity: recognition would be accorded only to court systems that would, under similar circumstances, recognize a U.S. judgment. Hilton v. Guyot, 159 U.S. 113, 210 (1985). See also Paul, supra note 12, at 8-11 (discussing Hilton). Reciprocity is, of course, related more to respect of foreign courts than to principles of res judicata, so Gray wished to emphasize the former. Cf. Hilton, 159 U.S. at 229-30 (Fuller, C.J., dissenting) (arguing for application of ordinary principles of res judicata). Significantly, although Hilton remains a staple citation in recognition-of-judgment cases, the reciprocity aspect of the decision has largely not survived. See Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 n.8 (3d Cir. 1971)("The [reciprocity] doctrine has received no more than desultory acknowledgment."); Allflex, 77 F.3d at 359 n.6 ("[C]ourts have concluded that reciprocity is no longer an element of the federal law of enforcement of foreign judgments.").
36. 432 F.2d 592 (5th Cir. 1970).
37. The argument by which this issue became determinative was somewhat involved. The plaintiffs filed the case in Mississippi, hoping to take advantage of a long statute of limitations. However, Mississippi law directed that the statute of limitations of the forum state be applied only if the statute of limitations of the jurisdiction furnishing the substantive law (in this case Belgium) was not imposed as a matter of public policy. As the plaintiffs had filed after the expiration of the Belgian period but before the running of the Mississippi period, survival of the case depended upon whether the Belgian period was imposed as a matter of public policy, and that could be determined by inquiring whether the Belgian period was, under Belgian law, unwaivable. Id. at 595-99.
38. Id. at 600-01 (citing Hubaut v. Societe de Marcinelle et Couillet, 1877 Pasicrisie, Vol. I, at 92; Van-Acker v. The Belgian State, 1948 Pasicrisie Belge, Vol. I, at 723).
39. See Fed. R. Civ. P. 44.1 (providing for proof of foreign law in U.S. court); see also Kaho v. Ilchert, 765 F.2d 877, 884-85 (9th Cir. 1985) (discussing proof of foreign law).
40. Ramsay, Ilchert and related cases, as well as Fed. R. Civ. P. 44.1, appropriately frame the matter as an evidentiary one, and do not (correctly, in my view) mention the idea of "comity." Ramsay, 432 F.2d at 600-01; Ilchert, 765 F.2d at 884-85.
41. See Eugene F. Scoles & Peter Hay, Conflict of Laws 996-1018 (2d ed. 1992) (referring to the historical and current treatment of foreign adjudications as "international recognition of judgments").
42. Philips Med. Sys. Int'l B.V. v. Bruetman, 8 F.3d 600, 604 (7th Cir. 1993).
43. Hilton v. Guyot, 159 U.S. 113, 164 (1895) (quoting Saul v. His Creditors, 5 Martin (n.s.) 569, 596 (La. 1827)).
44. Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971).
45. See id. at 441-44.
46. A similar pattern occurs in Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452 (2d Cir. 1985), in which the issue was whether to accord recognition to a Swedish judgment of bankruptcy of the defendant. The court began with elaborate (and thoroughly unhelpful) quotations from Hilton and Somportex (including the above-quoted passage) as to the general nature and obligation of "comity" before addressing precisely and accurately the quite concrete question whether the Swedish proceeding accorded appropriate notice - by U.S. standards - to the plaintiff. Id. at 456-60.
47. 109 F.3d 165 (3d Cir. 1997).
48. Id. at 169.
49. Id. at 167.
50. It is worth reemphasizing that this is true only as a policy matter in the interests of optimal judicial administration. Nothing in the inherent or constitutional aspects of U.S. courts compels them to accept the foreign courts' interpretation of foreign law. Cf. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding that U.S. courts are obligated to accept state courts' interpretations of state law). Thus we make a choice to accept the foreign court interpretation. However, that choice is understandable without reference to notions of respect. Simply as a factual and logical matter, the foreign courts' view of foreign law is the best evidence of foreign law - and indeed it makes little sense to say foreign law is not what the foreign tribunal has announced it to be.
51. See Saroop, 109 F.3d at 169 (referring to In re Itmo Lolita Saroop, H.C.A. No. 3040, at 5-6 (Trin. & Tobago High Ct. of Justice, Nov. 29, 1993)).
52. See Ramsay v. Boeing Co., 432 F.2d 592, 600-01 (5th Cir. 1970) (relying on Belgian cases decided decades prior to the dispute at hand).
53. See Saroop, 109 F.3d at 170 (citing Somportex and other recognition of judgments cases).
54. Id. at 169-70.
55. Id. at 170.
56. See Pravin, 109 F.3d at 854 (citing Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971)).
57. In the words of a distinguished commentary. There is one rule or policy which, wherever applicable, takes precedence over others and, to a large extent, saves the courts from further pain of decision. That controlling policy, obvious as it may be, is that a court must follow the dictates of its own legislature to the extent that these are constitutional. Elliott Cheatham & Willis Reese, Choice of Applicable Law, 52 Colum. L. Rev. 959, 961 (1952).
58. Two important qualifications need to be noted here. First, the above observations are not wholly in accord with some academic theories in the field of conflicts of law. Particularly in earlier formulations, it has been suggested that there may be a "natural" limit upon the proper scope of statutes that is enforceable by courts, perhaps even in opposition to a sovereign command. See Brilmayer, supra note 13, at 13-17 (discussing intellectual history of conflicts law). To the extent these formulations suggest an actual limit upon sovereignty (as opposed to merely an interpretive rule), they appear to be based upon a natural law or other super-constitutional principle inconsistent with a positive law understanding. (To the extent they merely propose an interpretive rule they are not, of course, inconsistent with my observations.) As Professor Brilmayer has observed, such approaches have struggled - without satisfaction - to find a principle that would permit a court to engage in such an override of a statutory command. Brilmayer, supra note 13, at 17. In any event, I take as axiomatic Cheatham & Reese's statement that "a court must follow the dictates of its own legislature." Cheatham & Reese, supra note 55, at 961. In the federal system, at least, I think it generally accepted that, absent constitutional or preemptive limitations, a clearly-applicable statute must be enforced. Second, and related, the above formulation depends upon the existence of a sovereign command - that is, a legislative act. I speak, therefore, only of statutory law. With respect to common-law rules, the role of the court is less clear, for in such case it has before it no "dictates of its own legislature." How the court is to determine, say, the reach of a state common law of torts is less clearly answered, and has been the subject of competing theories.
59. Under certain circumstances the Due Process Clause of the Fifth and Fourteenth Amendments may impose limits upon extraterritorial legislation. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (concluding that the Due Process Clause did not bar the application of Minnesota law to an accident that occured in Wisconsin because the parties had contacts with Minnesota); Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (indicating that a state may not legislate with respect to those who are outside of its borders and have no relation to the state); United States v. Davis, 905 F.2d 245 (9th Cir. 1990) (considering constitutionality of the extraterritorial application of federal narcotics laws); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992) (discussing due process limits on extraterritorial legislation). However, such concerns arise from protection of the individuals subject to the legislation rather than from any concerns of "comity." Cf. Davis, 905 F.2d at 249 (stating that the issue is whether "application [of the relevant statute] would not be arbitrary or fundamentally unfair" with respect to individual defendant). Some commentators have also urged that the Constitution generally requires adherence to international law, or at least to the international law rules limiting the extraterritorial scope of statutes. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071 (1985) (arguing that international norms act as implicit constitutional limitations on the exercise of governmental power); Andreas Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 Am. J. Int'l L. 880 (1989) (arguing that the Constitution permits the proscription of extraterritorial acts only within the limits provided by international law). However, that position has not been embraced generally. See Louis Henkin, Foreign Affairs and the U.S. Constitution 236 (2d ed. 1996) ("[U]nder our Constitutional jurisprudence as we understand it today, an action by the President or by Congress that is within their constitutional authority does not become a violation of the Constitution because the Act places the United States in violation of . . . a U.S. obligation under customary [international] law.").
60. Under certain circumstances the Due Process Clause of the Fifth and Fourteenth Amendments may impose limits upon extraterritorial legislation. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (concluding that the Due Process Clause did not bar the application of Minnesota law to an accident that occured in Wisconsin because the parties had contacts with Minnesota); Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (indicating that a state may not legislate with respect to those who are outside of its borders and have no relation to the state); United States v. Davis, 905 F.2d 245 (9th Cir. 1990) (considering constitutionality of the extraterritorial application of federal narcotics laws); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992) (discussing due process limits on extraterritorial legislation). However, such concerns arise from protection of the individuals subject to the legislation rather than from any concerns of "comity." Cf. Davis, 905 F.2d at 249 (stating that the issue is whether "application [of the relevant statute] would not be arbitrary or fundamentally unfair" with respect to individual defendant). Some commentators have also urged that the Constitution generally requires adherence to international law, or at least to the international law rules limiting the extraterritorial scope of statutes. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071 (1985) (arguing that international norms act as implicit constitutional limitations on the exercise of governmental power); Andreas Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 Am. J. Int'l L. 880 (1989) (arguing that the Constitution permits the proscription of extraterritorial acts only within the limits provided by international law). However, that position has not been embraced generally. See Louis Henkin, Foreign Affairs and the U.S. Constitution 236 (2d ed. 1996) ("[U]nder our Constitutional jurisprudence as we understand it today, an action by the President or by Congress that is within their constitutional authority does not become a violation of the Constitution because the Act places the United States in violation of . . . a U.S. obligation under customary [international] law.").
61. Under certain circumstances the Due Process Clause of the Fifth and Fourteenth Amendments may impose limits upon extraterritorial legislation. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (concluding that the Due Process Clause did not bar the application of Minnesota law to an accident that occured in Wisconsin because the parties had contacts with Minnesota); Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (indicating that a state may not legislate with respect to those who are outside of its borders and have no relation to the state); United States v. Davis, 905 F.2d 245 (9th Cir. 1990) (considering constitutionality of the extraterritorial application of federal narcotics laws); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992) (discussing due process limits on extraterritorial legislation). However, such concerns arise from protection of the individuals subject to the legislation rather than from any concerns of "comity." Cf. Davis, 905 F.2d at 249 (stating that the issue is whether "application [of the relevant statute] would not be arbitrary or fundamentally unfair" with respect to individual defendant). Some commentators have also urged that the Constitution generally requires adherence to international law, or at least to the international law rules limiting the extraterritorial scope of statutes. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071 (1985) (arguing that international norms act as implicit constitutional limitations on the exercise of governmental power); Andreas Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 Am. J. Int'l L. 880 (1989) (arguing that the Constitution permits the proscription of extraterritorial acts only within the limits provided by international law). However, that position has not been embraced generally. See Louis Henkin, Foreign Affairs and the U.S. Constitution 236 (2d ed. 1996) ("[U]nder our Constitutional jurisprudence as we understand it today, an action by the President or by Congress that is within their constitutional authority does not become a violation of the Constitution because the Act places the United States in violation of . . . a U.S. obligation under customary [international] law.").
62. Under certain circumstances the Due Process Clause of the Fifth and Fourteenth Amendments may impose limits upon extraterritorial legislation. See Allstate Ins. Co. v. Hague, 449 U.S. 302, 313-20 (1981) (concluding that the Due Process Clause did not bar the application of Minnesota law to an accident that occured in Wisconsin because the parties had contacts with Minnesota); Home Ins. Co. v. Dick, 281 U.S. 397 (1930) (indicating that a state may not legislate with respect to those who are outside of its borders and have no relation to the state); United States v. Davis, 905 F.2d 245 (9th Cir. 1990) (considering constitutionality of the extraterritorial application of federal narcotics laws); Lea Brilmayer & Charles Norchi, Federal Extraterritoriality and Fifth Amendment Due Process, 105 Harv. L. Rev. 1217 (1992) (discussing due process limits on extraterritorial legislation). However, such concerns arise from protection of the individuals subject to the legislation rather than from any concerns of "comity." Cf. Davis, 905 F.2d at 249 (stating that the issue is whether "application [of the relevant statute] would not be arbitrary or fundamentally unfair" with respect to individual defendant). Some commentators have also urged that the Constitution generally requires adherence to international law, or at least to the international law rules limiting the extraterritorial scope of statutes. See Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 Va. L. Rev. 1071 (1985) (arguing that international norms act as implicit constitutional limitations on the exercise of governmental power); Andreas Lowenfeld, U.S. Law Enforcement Abroad: The Constitution and International Law, 83 Am. J. Int'l L. 880 (1989) (arguing that the Constitution permits the proscription of extraterritorial acts only within the limits provided by international law). However, that position has not been embraced generally. See Louis Henkin, Foreign Affairs and the U.S. Constitution 236 (2d ed. 1996) ("[U]nder our Constitutional jurisprudence as we understand it today, an action by the President or by Congress that is within their constitutional authority does not become a violation of the Constitution because the Act places the United States in violation of . . . a U.S. obligation under customary [international] law.").
63. For the moment I speak only of limitations upon federal law. As will be developed in Part V below, analogous rules concerning state law jurisdictional reach are subject to substantially more uncertainty.
64. E.E.O.C. v. Arabian Am. Oil Co. (ARAMCO), 499 U.S. 244, 247 (1991) (quoting Foley Bros. v. Filardo, 336 U.S. 281, 285 (1949)); see also Blackmer v. United States, 284 U.S. 421, 436 (1932) (observing that "the legislation of Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States. . ."); United States v. Bowman, 260 U.S. 94, 97-98 (1922) (noting that if laws are to be extended "outside of the strict territorial jurisdiction [of the United States], it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard"); American Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) ("Statutes are prima facie territorial.").
65. See W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int'l, 493 U.S. 400, 409 (1990) (describing the act of state doctrine); International Ass'n of Machinists and Aerospace Workers v. Organization of the Petroleum Exporting Countries (OPEC), 649 F.2d 1354, 1359 (9th Cir. 1981) ("The act of state doctrine declares that a United States court will not adjudicate a politically sensitive dispute which would require the court to judge the legality of the sovereign act of a foreign state.").
66. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804); see also Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 178 n.35 (1993) (quoting Murray);Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (quoting and applying Murray).
67. Mark W. Janis, An Introduction to International Law 324-30 (2d ed. 1993) (discussing international law principles of extraterritorial jurisdiction); Restatement (Third) of Foreign Relations Law §§ 402-03 (1987) (suggesting limits upon extraterritorial jurisdiction).
68. I leave to one side a substantial doctrinal debate concerning the ARAMCO presumption: namely whether it constitutes a "clear statement" rule that can be satisfied only by reference to the plain words of the statute in question or whether its presumption may be overcome by implication from surrounding circumstances. See generally ARAMCO, 499 U.S. at 263-64 (Marshall, J., dissenting); Note, The Supreme Court's Not So Clear Statement in Equal Employment Opportunity Commission v. Arabian American Oil Co., 21 Brook. J. Int'l L. 939 (1996). On the ARAMCO rule generally, see Curtis A. Bradley, Territorial Intellectual Property Rights in a Age of Globalism, 37 Va. J. Int'l L. 505, 510-519 (1997); Gary B. Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol'y Int'l Bus. 1 (1992); Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179.
69. I leave to one side a substantial doctrinal debate concerning the ARAMCO presumption: namely whether it constitutes a "clear statement" rule that can be satisfied only by reference to the plain words of the statute in question or whether its presumption may be overcome by implication from surrounding circumstances. See generally ARAMCO, 499 U.S. at 263-64 (Marshall, J., dissenting); Note, The Supreme Court's Not So Clear Statement in Equal Employment Opportunity Commission v. Arabian American Oil Co., 21 Brook. J. Int'l L. 939 (1996). On the ARAMCO rule generally, see Curtis A. Bradley, Territorial Intellectual Property Rights in a Age of Globalism, 37 Va. J. Int'l L. 505, 510-519 (1997); Gary B. Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol'y Int'l Bus. 1 (1992); Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179.
70. I leave to one side a substantial doctrinal debate concerning the ARAMCO presumption: namely whether it constitutes a "clear statement" rule that can be satisfied only by reference to the plain words of the statute in question or whether its presumption may be overcome by implication from surrounding circumstances. See generally ARAMCO, 499 U.S. at 263-64 (Marshall, J., dissenting); Note, The Supreme Court's Not So Clear Statement in Equal Employment Opportunity Commission v. Arabian American Oil Co., 21 Brook. J. Int'l L. 939 (1996). On the ARAMCO rule generally, see Curtis A. Bradley, Territorial Intellectual Property Rights in a Age of Globalism, 37 Va. J. Int'l L. 505, 510-519 (1997); Gary B. Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol'y Int'l Bus. 1 (1992); Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179.
71. I leave to one side a substantial doctrinal debate concerning the ARAMCO presumption: namely whether it constitutes a "clear statement" rule that can be satisfied only by reference to the plain words of the statute in question or whether its presumption may be overcome by implication from surrounding circumstances. See generally ARAMCO, 499 U.S. at 263-64 (Marshall, J., dissenting); Note, The Supreme Court's Not So Clear Statement in Equal Employment Opportunity Commission v. Arabian American Oil Co., 21 Brook. J. Int'l L. 939 (1996). On the ARAMCO rule generally, see Curtis A. Bradley, Territorial Intellectual Property Rights in a Age of Globalism, 37 Va. J. Int'l L. 505, 510-519 (1997); Gary B. Born, A Reappraisal of the Extraterritorial Reach of U.S. Law, 24 Law & Pol'y Int'l Bus. 1 (1992); Larry Kramer, Vestiges of Beale: Extraterritorial Application of American Law, 1991 Sup. Ct. Rev. 179.
72. Civil Rights Act of 1964, Title VII, 78 Stat. 253 (codified as amended at 42 U.S.C. §§ 2000e-2000e-17 (1994)).
73. ARAMCO, 499 U.S. at 247-48. Following the ARAMCO decision, Congress amended Title VII to provide for extraterritorial application. Pub. L. No. 102-166 § 109(a), 101 Stat. 1071, 1077 (1991) (codified at 42 U.S.C. §§ 2000e(f), 12111(4) (1994)).
74. See, e.g., Weinberg, supra note 13, at 73 ("The ARAMCO Court sought to practice a presumptive comity").
75. See ARAMCO, 499 U.S. at 248 ("[The Foley rule] serves to protect against unintended clashes between our laws and those of other nations which could result in international discord"); see also American Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) (observing that extraterritorial legislation "would be an interference with the authority of another sovereign contrary to the comity of nations").
76. See infra Part III.A.3.
77. Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). See infra Part III.A.3. (discussing Murray).
78. See Blackmer v. United States, 284 U.S. 421, 436 & nn. 2-3 (1932) (discussing international law basis of certain types of extraterritorial legislation); American Banana, 213 U.S. at 355-56 (same).
79. See Janis, supra note 62, at 322-30.
80. See, e.g., Hartford Fire Ins. Co. v. California, 509 U.S. 764, 814-15 (1993) (Scalia, J., dissenting) (discussing successive application of ARAMCO and Murray presumptions); United States v. Vasquez-Velasco, 15 F.3d 833, 839-840 (9th Cir. 1994) (same); but see Born, supra note 63, at 61-95 (arguing for a consolidation of the Aramco and Murray presumptions into a single presumption based upon consistency with international law).
81. Regulation of a U.S. company, at least in the absence of any countervailing foreign interest, accords with the "nationality" principle of legislative jurisdiction, even where the acts in question occur within a foreign country. Restatement (Third) of Foreign Relations Law § 402 (1987); see Janis, supra note 62, at 324-25. As early as the first authoritative commentator on jurisdiction . . . it has been admitted that a state's laws may be applied extraterritorially to its citizens, individuals or corporations, wherever they may be found. Thus a person or company located or doing business in a foreign country may be subject not only to the territorial jurisdiction of the foreign state, but also to the jurisdiction of its national government. Id.
82. See Weinberg, supra note 13, at 73-74 (discussing claim of conflict with foreign interests in ARAMCO); Russell Weintraub, The Extraterritorial Application of Antitrust and Securities Laws: An Inquiry into the Utility of a "Choice-of-Law" Approach, 70 Tex. L. Rev. 1799, 1822-24 (1992) (same). Apparently Saudi Arabia did not at any time express any interest in the case.
83. See Smith v. United States, 507 U.S. 197, 203-04 (1993) (applying the ARAMCO presumption in a context in which there was no possibility of conflict with foreign sovereignty); Kollias v. D & G Marine Maintenance, 29 F.3d 67, 73 (2d Cir. 1994) (concluding that "the presumption against extraterritoriality . . . applies even if the potential for international discord is weak or nonexistent").
84. Indeed, this is one basis for the due process argument against certain extraterritorial applications of U.S. statutes: essentially, that the popular assumption is so strong that there is a failure of adequate notice. Cf. United States v. Davis, 905 F.2d 245, 248-49 (9th Cir. 1990) (stating that due process demands an adequate nexus between the U.S. and the defendant).
85. This popular sense in turn arises, I would suggest, from a popular (rather than a legal) sense of sovereignty as associated with territory. As discussed infra notes 127-35 and accompanying text, in the legal sense sovereignty has never been wholly associated with territory, and this association has further weakened in light of the globalizing tendencies of the modern world. However, the popular instinct continues to view nations as inherently geographic entities identified in the first instance with territory. This view, I suggest, underlies ARAMCO and explains its separateness from the rule of Murray, discussed infra, and its associated ideas of sovereignty in the legal sense. The continuing validity of the ARAMCO presumption, of course, may depend upon the continuing validity of the ordinary association of sovereignty and territory. Cf. Born, supra note 63, at 74-76 (arguing that in light of the "economic and political interdependence of the twentieth century" one can no longer make such an association). But see Bradley, supra note 63, at 510-19 (arguing for a separation-of-powers rationale for the ARAMCO rule).
86. Eight hour laws prohibit employers from requiring employees to work more than eight hours in a calendar day. See Foley Bros. v. Filardo, 336 U.S. 281, 282 (1949) (construing 40 U.S.C. §§ 321-326, 27 Stat. 340 (1892)).
87. See supra note 70.
88. Foley, 336 U.S. at 285.
89. Id.
90. Id.; see also United States v. Bowman, 260 U.S. 94, 98 (1922) ("If [legislation] is to be extended to include [acts] outside the strict territorial jurisdiction, it is natural for Congress to say so in the statute."). American Banana Co. v. United States Fruit Co., 213 U.S. 347 (1909), is to the same effect. Although Justice Holmes in that case made reference to the "comity of nations," he seemed to recognize that in unusual cases extraterritorial jurisdiction did not transgress international law; nor did he cite Murray or related cases in support of his blanket presumption against extraterritorial legislation. Rather, his decision rests upon general assumptions about legislation (of which the ordinary international practice was only partial evidence). Id. at 355-57.
91. As has been observed in a related context, "Words like comity, reciprocity, and mutuality, have a deceptively right ring, like good breeding and sweet disposition." Weinberg, supra note 13, at 59.
92. The argument runs thus: there is a generalized idea of comity arising from relationships with foreign nations; ARAMCO, because it relates to relationships with foreign nations, is a manifestation of that idea; but ARAMCO as applied does not necessarily serve that goal, because many extraterritorial laws (such as the one at issue in ARAMCO itself) do not interfere with relationships with foreign nations; hence ARAMCO is incorrect. Id. at 73-74; Born, supra note 63, at 76-78. I think this is misconceived for the reasons stated: the true rationale for the ARAMCO presumption (as shown by Foley and related cases) is a common sense understanding of the scope of statutes unrelated to their effect on international relationships. But the misfocus here is entirely the fault of the Court's opinion in ARAMCO, which overreached in seeking an explanation for its result.
93. E.g., Dowd v. International Longshoreman's Ass'n, 975 F.2d 779 (11th Cir. 1992). The court in Dowd justified an extraterritorial application of the statute at issue in part on the ground that "the presumption against extraterritorial application is in fact a presumption that Congress intended to avoid 'clashes between our laws and those of other nations which could result in international discord,'" id. at 789 (quoting E.E.O.C. v. Arabian Am. Oil Co. (ARAMCO), 499 U.S. 244, 248 (1991)). Although Dowd did not go quite so far, it is but a small step to an analysis that asks first whether any international discord will follow from extraterritorial application, and applies the ARAMCO presumption only in the case of an affirmative answer to the first question.
94. Cf. Dowd, 975 F.2d at 789. But see Kollias v. D & G Marine Maintenance, 29 F.3d 67, 73 (2d Cir. 1994) (finding that ARAMCO presumption applies even in absence of potential international tensions); United States v. Vasquez-Velasco, 15 F.3d 833, 839-40 (9th Cir. 1994) (same); Labor Union of Pico Korea, Ltd. v. Pico Products, Inc., 968 F.2d 191, 193 (2d Cir. 1992) (same).
95. See Born, supra note 63, at 61-95 (arguing that the ARAMCO presumption should be eliminated because concerns over conflicts with foreign sovereigns are adequately addressed by the Murray presumption).
96. Underhill v. Hernandez, 168 U.S. 250, 252 (1897).
97. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990).
98. E.g., First Nat'l Citibank v. Banco Nacional de Cuba, 406 U.S. 759, 765 (1972) (opinion of Rehnquist, J.); Oetjen v. Central Leather Co., 246 U.S. 297, 303-04 (1918).
99. International Ass'n of Machinists and Aerospace Workers v. Organization of Petroleum Exporting Countries (OPEC), 649 F.2d 1354, 1359 (9th Cir. 1981); see also Kirkpatrick, 493 U.S. at 404 (quoting Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964)) (stating that the act of state doctrine reflects "'the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder' the conduct of foreign affairs"); Michael D. Ramsey, Acts of State and Foreign Sovereign Obligations, 39 Harv. Int'I L.J. 1, 46-66 (1998) (discussing foreign-policy-protecting rationale of the act of state doctrine).
100. The act of state rule's most familiar manifestation is the preclusion of claims (or defenses) based upon an assertion that a foreign act was illegal or invalid under foreign law. See e.g., Oetjen, 246 U.S. at 303-04 (concluding that act of state doctrine precludes assertion that title descended from Mexican government was invalid because government illegally seized property from original owner); Underhill, 168 U.S. at 252 (concluding that act of state doctrine precludes claim against agent of Venezuelan government for torts committed in official capacity in Venezuela).
101. 649 F.2d 1354 (9th Cir. 1981).
102. See infra Part III.A.3.
103. OPEC, 649 F.2d at 1359. Inquiring whether the territorial acts of the OPEC nations were illegal under U.S. law thus would have amounted to "sitting in judgment upon," Underhill, 168 U.S. at 252, or failing to "deem valid," W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 404 (1990), such territorial acts.
104. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964) (concluding that although act of state doctrine is not constitutionally compelled, it has "constitutional underpinnings"); Restatement (Third) of Foreign Relations Law § 443(2) (1987) (stating that the act of state doctrine is not compelled by the Constitution); Joseph Dellapenna, Deciphering the Act of State Doctrine, 35 Vill. L. Rev. 1, 109-21 (1990) (discussing congressional limitations on act of state doctrine).
105. See Cuban Liberty & Democratic Solidarity (LIBERTAD) Act of 1996, Title III, Pub. L. No. 104-114, 110 Stat. 785 (1996) (codified as amended at 22 U.S.C. § 6081).
106. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992).
107. See S. Rep. No. 249, 102nd Cong., 1st Sess. 3 (1991) (referring to "official torture and summary execution" as objects of the Act).
108. Cf. Filartiga v. Pena-Irala, 630 F.2d 876, 889-90 (2d Cir. 1980) (concluding that act of state doctrine does not protect "wholly unratified" acts of torture by Paraguayan policeman).
109. See Dellapenna, supra note 96 (analyzing the act of state doctrine).
110. Arango v. Guzman Travel Advisors, 761 F.2d 1527 (11th Cir. 1985); Shen v. Japan Airlines, 918 F. Supp. 686, 691 (S.D.N.Y. 1994) ("A party may assert the act of state doctrine where its conduct has been compelled by a foreign government"), affirmed 43 F.3d 1459 (2d Cir. 1995).
111. See O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449, 453 (2d Cir. 1987) ("[W]here as here the conduct of the [antitrust defendant] has been compelled by the foreign government . . . the act of state doctrine is applicable."). Similarly, in Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985) (opinion on rehearing), discussed infra Part V.A., the defendant cited a Costa Rican law prohibiting repayment of contract debt in defense of a claim under New York contract law. This assertion of the act of state doctrine failed because Costa Rica's law was found extraterritorial - but had it not been, the doctrine would have operated to resolve a direct conflict in sovereign commands. See Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th Cir. 1985) (applying act of state doctrine on similar facts where foreign law in question was deemed territorial).
112. For an extensive treatment of the Murray rule, see Curtis A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L.J. 479, 485-95 (1998). Professor Bradley points out that the rule did not originate with Murray but with the earlier case of Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801), in which the court stated that "the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations." Bradley, supra, at 486 (quoting Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 43 (1801)).
113. An Act to Further Suspend the Commercial Intercourse between the United States and France, and the Dependencies Thereof, Act of February 27, 1800 [hereinafter Non-Intercourse Act], 2 Stat. 7 (1800).
114. Id. at 7-8 (emphasis added).
115. See Murray, 6 U.S. at 75-85 (reporting the argument of appellant); id. at 71, 92-94, 112-14 (reporting, the argument of respondent).
116. Id. at 71, 75-85, 92-94, 112-14.
117. Id. at 120.
118. Id. at 118.
119. Non-Intercourse Act, 2 Stat., 7-8 (1800).
120. Murray 6 U.S. at 120-21.
121. Non-Intercourse Act, 2 Stat. at 8.
122. Murray, 6 U.S. at 120-21.
123. See id. at 68 (reporting opinion of trial court that Shattuck was not a citizen of the United States); id. at 70 (reporting opinion of circuit court affirming on the basis of the trial court's opinion); id. at 75-85 (reporting argument of appellant that Act applied because Shattuck was a citizen); id. at 71, 92-94, 112-14 (reporting argument of respondent that Act did not apply because Shattuck was not a citizen). None of these opinions or arguments addressed the effect of the first sentence of the Act; all assumed that Shattuck's citizenship was determinative.
124. See Murray, 6 U.S. at 74 (reporting argument of respondent alluding to Danish concerns over neutral rights).
125. See id. at 110 (reporting argument of appellant that Shattuck was a U.S. citizen); Janis, supra note 62, at 324 (describing such jurisdiction as a "fundamental principle of extraterritorial jurisdiction").
126. This reading is bolstered by the phrase "contrary to the intent hereof" in the second sentence of the Act, which suggests that the scope of the second sentence may be limited by the intent of the first sentence. Non-Intercourse Act, 2 Stat. at 8.
127. Murray 6 U.S. at 120.
128. See Bradley, supra note 104, at 485-95 (discussing rationale of Murray rule).
129. Murray, 6 U.S. at 120.
130. The Supreme Court has reaffirmed the Murray rule, both in the context of extraterritorial jurisdiction and with respect to other aspects of international law. See Weinberger v. Rossi, 456 U.S. 25, 32 (1982) (applying Murray in the context of the obligations of international agreements); McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963) (applying Murray in the context of extraterritorial legislation); Romero v. International Terminal Operating Co., 358 U.S. 354, 382-83 (1959) (same); Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) (same).
131. See Janis, supra note 62, at 322-30 (discussing principles of extraterritorial jurisdiction in the international law context).
132. Compare United States v. Yunis, 924 F.2d 1086, 1089-90 (D.C. Cir. 1991) (declining to apply international rules of legislative jurisdiction where language of statute was unambiguous) with Commodity Futures Trading Comm'n v. Nahas, 738 F.2d 487, 493-94 (D.C. Cir. 1984) (applying international rules of legislative jurisdiction to ambiguous U.S. statute).
133. In international law parlance, this inquiry is often described as the question whether a nation has "jurisdiction to prescribe" or "legislative jurisdiction" with respect to a certain matter. Restatement (Third) of Foreign Relations Law § 401(a) (1987); Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813 (1993) (Scalia, J., dissenting).
134. See Janis, supra note 62, at 322-23 ("At least since [the Peace of Westphalia of 1648], the principles of the territorial sovereignty and the jurisdiction of states have been two of the most fundamental principles of international law."). The principal exceptions to this proposition are embassy property and personnel, which under international law are governed by the law of the accrediting nation and not by territorial law, id. at 366-67, and, in admiralty jurisdiction, the internal regulation of shipboard conduct, which is ordinarily governed by the law of the ship's flag rather than territorial law, United States v. Flores, 289 U.S. 137, 155-59 (1933).
135. As Professor Maier describes the development of this view in international law: Recognition that a state has absolute authority within its own territory was a necessary condition for a consensual [international] legal system that depended upon voluntary compliance by its components with community expectations about required or prohibited conduct. . . . The territorial principle served not only to assign authority but also to provide protection to each body politic by allocating to it a space in which its authority, if not sole, was at least presumed to have primacy over all others. Harold Maier, Resolving Territorial Conflicts, or "There and Back Again", 25 Va. J. Int'l L. 7, 11 (1994).
136. 345 U.S. 571 (1953).
137. 46 U.S.C. § 688 (1994).
138. Larsen's connection with the United States was that he had boarded the ship in New York. Lauritzen, 345 U.S. at 587.
139. Id. at 581-92; see Janis, supra note 62, at 322-30 (discussing international law principles of extraterritorial jurisdiction). This requirement is sometimes described as the need for a "jurisdictional nexus" between the prescribing nation and the subject conduct. David B. Massey, Note, How the American Law Institute Influences Customary International Law: The Reasonableness Requirement of the Restatement of Foreign Relations Law, 22 Yale J. Int'l L. 419, 429 (1997).
140. See Lauritzen, 345 U.S. at 578 (quoting Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804)); id. at 578-579 ("[W]e are simply dealing with a problem of statutory construction rather commonplace in a federal system by which courts often have to decide whether 'any' or 'every' reaches to the limits of the enacting authority's usual scope or is to be applied to foreign events or transactions."). Lauritzen, it is worth noting, illustrates the cumulative operation of Foley and Murray. Since part of the purpose of the Jones Act was to protect U.S. sailors on the high seas, plainly the Act was intended to have some extraterritorial application (thus overcoming the Foley presumption). It remained to ask (as the Court in Lauritzen did) whether that conceded extraterritorial application was nonetheless limited by international law rules under Murray.
141. United States v. Aluminum Co. of America (ALCOA), 148 F.2d 416, 443 (2d Cir. 1945) (L. Hand, J.).
142. I leave aside (while noting the importance of) the difficulty of determining whether a law is properly characterized as extraterritorial. See Brilmayer & Norchi, supra note 57, at 1218 n.3 (noting difficulty of inquiry
143. Application of the law of the jurisdiction in which the effect is felt has been called "impact territoriality." Brilmayer & Norchi, supra note 57, at 1248. A substantial debate in international law practice is the extent to which "effects" or "impact territoriality" is a permissible basis (or, more precisely, as permissible a basis) of legislative jurisdiction as traditional territoriality. See Janis, supra note 62, at 326-28 (summarizing conflicting views).
144. See Janis, supra note 62, at 324-26 (discussing "nationality" principle).
145. See Restatement (Second) of Foreign Relations Law of the United States § 30(2) (1965) ("A state does not have jurisdiction to prescribe a rule of law attaching legal consequences to conduct of an alien outside its territory merely on the ground that the conduct affects one of its nationals."); Janis, supra note 62, at 330 (discussing "passive personality" principle founding jurisdiction upon nationality of victim). Cf. United States v. Yunis, 681 F. Supp. 896, 901-03 (D.D.C. 1988) (concluding that in light of evolution of international law, so-called "passive personality" principle supports jurisdiction with respect to "crimes unanimously condemned by members of the international community"), aff'd on other grounds, 924 F.2d 1086 (D.C. Cir. 1991); Restatement (Third) of Foreign Relations Law § 402 cmt. g (1987) (indicating some evolution toward acceptance of the passive personality principle in limited circumstances); Lowenfeld, supra note 57, at 881-92 (discussing evolution of U.S. views).
146. See Weintraub, supra note 74, at 1806-15 (discussing extraterritorial application of antitrust and securities law).
147. See generally Janis, supra note 62, at 326-28 (discussing "effects" test).
148. See generally William Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int'l L.J. 101 (1998) (discussing competing approaches).
149. Timberlane Lumber Co. v. Bank of America Nat'l Trust & Sav. Ass'n, 549 F.2d 597 (9th Cir. 1976).
150. Id. at 601-05.
151. United States v. ALCOA, 148 F.2d 416, 443-44 (2nd Cir. 1945).
152. See Timberlane, 549 F.2d at 611-12 ("The effects test [for establishing a U.S. interest] is incomplete because it fails to consider the other nation's interests.").
153. Id. at 612-15.
154. See id. at 613-14 (listing factors to be used when deciding "whether American authority should be asserted").
155. The Timberlane approach is largely reflected in the Restatement (Third) of Foreign Relations Law § 403 (1987).
156. Timberlane, 549 F.2d at 612, 615. The use of the phrase "international comity" to describe this analysis is not, of course, original with Timberlane: academic writings frequently describe issues of extraterritorial jurisdiction as matters of comity. E.g., Brilmayer, supra note 13, at 13-18; Paul, supra note 12, at 2-5, 59-60; Yntema, supra note 12, at 9-10. However, by taking a term that commentators may use to describe general aspects of international practice and using it to describe the specific judicial analysis reflected in the Murray rule, the Timberlane court invited the difficulties described in Part III.A.4 infra.
157. See Hilton v. Guyot, 159 U.S. 113, 163-64 (defining comity as respect for foreign judicial, legislative or executive acts).
158. As discussed supra Part III.A.2, under U.S. law this type of conflict may be addressed under the act of state doctrine.
159. Timberlane Lumber Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 549 F.2d 597, 603-05 (9th Cir. 1976); see also Lauritzen v. Larsen, 345 U.S. 571, 578 (1953) ("Respondent does not deny that Danish law is applicable to his case. The contention is . . . that [U.S. law] provides an optional cumulative remedy. . . .").
160. United States v. Nippon Paper Indus. Co., 109 F.3d 1 (1st Cir. 1997).
161. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Nippon Paper, 109 F.3d 1. On Hartford, see Kenneth Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case, 1993 Sup. Ct. Rev. 289 (1993); Dodge, supra note 140, at 135-44; Andreas Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Amer. J. Int'l L. 42 (1995); Philip Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Amer. J. Int'l L. 53 (1995).
162. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Nippon Paper, 109 F.3d 1. On Hartford, see Kenneth Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case, 1993 Sup. Ct. Rev. 289 (1993); Dodge, supra note 140, at 135-44; Andreas Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Amer. J. Int'l L. 42 (1995); Philip Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Amer. J. Int'l L. 53 (1995).
163. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Nippon Paper, 109 F.3d 1. On Hartford, see Kenneth Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case, 1993 Sup. Ct. Rev. 289 (1993); Dodge, supra note 140, at 135-44; Andreas Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Amer. J. Int'l L. 42 (1995); Philip Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Amer. J. Int'l L. 53 (1995).
164. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Nippon Paper, 109 F.3d 1. On Hartford, see Kenneth Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case, 1993 Sup. Ct. Rev. 289 (1993); Dodge, supra note 140, at 135-44; Andreas Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Amer. J. Int'l L. 42 (1995); Philip Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Amer. J. Int'l L. 53 (1995).
165. Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993); Nippon Paper, 109 F.3d 1. On Hartford, see Kenneth Dam, Extraterritoriality in an Age of Globalization: The Hartford Fire Case, 1993 Sup. Ct. Rev. 289 (1993); Dodge, supra note 140, at 135-44; Andreas Lowenfeld, Conflict, Balancing of Interests, and the Exercise of Jurisdiction to Prescribe: Reflections on the Insurance Antitrust Case, 89 Amer. J. Int'l L. 42 (1995); Philip Trimble, The Supreme Court and International Law: The Demise of Restatement Section 403, 89 Amer. J. Int'l L. 53 (1995).
166. Hartford Fire, 509 U.S. at 796 (observing that the complaint alleged "that the London reinsurer engaged in unlawful conspiracies to affect the market for insurance in the United States and that their conduct in fact produced substantial effect"). Whether this is a correct reading of international law may be disputed; however, it accords with prior U.S. court interpretations of international law. See United States v. Aluminum Co. of America (ALCOA), 148 F.2d 416, 443-44 (2d Cir. 1945) (finding antitrust laws may apply extraterritorially); cf. Janis, supra note 62, at 322-30 (noting the existence of international law authorities on both sides of the question).
167. Hartford Fire, 509 U.S. at 798.
168. See id. at 798-99. In the Court's view: The only substantial question in this case is whether there is in fact a true conflict between domestic and foreign law. . . . No conflict exists, for these purposes, where a person subject to regulation by two states can comply with the laws of both. Since the London reinsurers do not argue that British law requires them to act in some fashion prohibited by the law of the United States . . . or claim that their compliance with the laws of both countries is otherwise impossible, we see no conflict with British law. Id.
169. Id. at 814-19 (Scalia, J., dissenting) (citing, inter alia, Lauritzen v. Larsen, 345 U.S. 571 (1953); Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804); and Timberlane Lumber Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 549 F.2d 597 (9th Cir. 1976)).
170. Hartford Fire, 509 U.S. at 797. The Court went on the hold that "even assuming that in a proper case a court may decline to exercise jurisdiction over foreign conduct . . . international comity would not counsel against exercising jurisdiction in the circumstances alleged here." Id. at 798. That holding in turn was based on the view that there was "no conflict with British law." Id. at 799. Thus the Court appeared to conceive of a discretionary process in which a "principle of international comity" (of undefined source and authority) will "counsel" a court in deciding whether or not to apply an otherwise-applicable command of its sovereign. This is divorced from the authority of Murray, and seems inconsistent with the appropriate role of courts in applying statutes. Again, the difficulty is directly attributable to the (mis)use of "comity" to describe the inquiry.
171. See Hartford Fire, 509 U.S. at 820 (Scalia, J., dissenting) ("[T]he Court's comity analysis, which proceeds as though the issue is whether the courts should 'decline to exercise . . . jurisdiction,' . . . rather than whether the Sherman Act covers this conduct, is simply misdirected."). In fairness to the Hartford majority, the Court did assume for purposes of argument, rather than decide, that "international comity" might override a statutory command in certain circumstances. Thus one could describe the Hartford case as (i) issuing no ruling on the Murray issue, as the parties did not raise it; and (ii) deciding that no abstract principle of "comity" unrelated to the Murray rule allowed the district court to depart from the command of the statute. So described, I have no quarrel with the result of the case; however, if that was the Court's intent it is presented in an unduly convoluted and confusing manner.
172. A recent article by Professor William Dodge attempts to rehabilitate the Hartford majority by arguing that the Court did intend to apply international law through the Murray rule, but that the Court read international law to be violated only where U.S. law would directly conflict with the territorial law of another nation. Dodge, supra note 140, at 135-38; see also Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 937-45 (D.C. Cir. 1984) (adopting the narrower view of international law); Massey, supra note 131, at 428-37 (suggesting an approach similar to that argued by Professor Dodge); Trimble, supra note 153, at 56 (same). If that was the Court's analysis, I have no quarrel with it (except, perhaps, with respect to its reading of the requirements of international law). However, the asserted view of international law is subject to substantial debate, as it departs from the Third Restatement and from leading lower court decisions such as Timberlane. See Lowenfeld, supra note 153, at 49 (outlining the approach of the Restatement and of Timberlane); see also Dodge, supra note 140, at 134-43 (outlining the debate as to the requirements of international law in this area); Maier, supra note 127, at 15-20 (same). While this Article does not seek to take a position on that debate, the Hartford Court's use of the phrase "comity" is, in either event, problematic. The majority opinion in Hartford makes no acknowledgment of the international law debate, contains no analysis of international law, and indeed does not suggest that the Court understood that it was selecting among disputed views of international law. This occurred because the majority relied too facilely upon "comity" (a term appropriately avoided by Professor Dodge). Merely appealing to "international comity" in the abstract says nothing about the actual state of the international law of overlapping jurisdictions, but invocation of that imprecise phrase allowed the Court to use whatever rule the Court wanted to use without further analysis.
173. Perhaps because of the decision's uncertain source of authority, Hartford has not been fully accepted as a generalized rule by federal courts. Filetech SARL v. France Telecom, 978 F. Supp. 464, 478 (S.D.N.Y. 1997) (discussing tension in post-Hartford decisions); James S. McNeill, Note, Extraterritorial Antitrust Jurisdiction: Continuing the Confusion in Policy, Law, and Jurisdiction, 28 Cal. W. Int'l L.J. 425, 431-44 (1998) (same). See, e.g., Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 847 (9th Cir. 1996) (adhering largely to the Timberlane approach despite Hartford); Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 746-47 (2d Cir. 1994) (declining to extend the Hartford analysis to the context of trademark law).
174. Perhaps because of the decision's uncertain source of authority, Hartford has not been fully accepted as a generalized rule by federal courts. Filetech SARL v. France Telecom, 978 F. Supp. 464, 478 (S.D.N.Y. 1997) (discussing tension in post-Hartford decisions); James S. McNeill, Note, Extraterritorial Antitrust Jurisdiction: Continuing the Confusion in Policy, Law, and Jurisdiction, 28 Cal. W. Int'l L.J. 425, 431-44 (1998) (same). See, e.g., Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 847 (9th Cir. 1996) (adhering largely to the Timberlane approach despite Hartford); Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 746-47 (2d Cir. 1994) (declining to extend the Hartford analysis to the context of trademark law).
175. Perhaps because of the decision's uncertain source of authority, Hartford has not been fully accepted as a generalized rule by federal courts. Filetech SARL v. France Telecom, 978 F. Supp. 464, 478 (S.D.N.Y. 1997) (discussing tension in post-Hartford decisions); James S. McNeill, Note, Extraterritorial Antitrust Jurisdiction: Continuing the Confusion in Policy, Law, and Jurisdiction, 28 Cal. W. Int'l L.J. 425, 431-44 (1998) (same). See, e.g., Metro Indus., Inc. v. Sammi Corp., 82 F.3d 839, 847 (9th Cir. 1996) (adhering largely to the Timberlane approach despite Hartford); Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 746-47 (2d Cir. 1994) (declining to extend the Hartford analysis to the context of trademark law).
176. United States v. Nippon Paper Indus. Co., 109 F.3d 1, 2-3 (1st Cir. 1997).
177. Id. at 4, 8.
178. See id. at 8 (citing Hartford and observing that "[i]n this case the defendant's comity-based argument is even more attenuated [than in Hartford]. The conduct with which [defendant] is charged is illegal under both Japanese and American laws, thereby alleviating any founded concern about [defendant] being whipsawed between separate sovereigns.").
179. Nippon Paper, 109 F.3d at 8.
180. Id.
181. Restatement (Third) of Foreign Relations Law § 403 (1987).
182. Nippon Paper, 109 F.3d at 8.
183. Some commentary encourages this tendency. See, e.g., Massey, supra note 131, at 429 n. 114 ("[T]he extension of comity is . . . considered a unilateral discretionary act of the forum, not a matter of obligation under customary international law"). It is not explained, under this view, where a court gets its authority to ignore the command of its sovereign in the area of extraterritorial jurisdiction and engage in a "unilateral discretionary act." As discussed, this authority comes from international law, applied through Murray; once that connection is obscured the authority by which the court acts becomes difficult to discern. For an interesting theoretical discussion that struggles with the concept of comity but ultimately reaches the correct analytical framework, see In re Maxwell Communication Co., 93 F.3d 1036 (2d Cir. 1996). That case involved the asserted extraterritorial effect of aspects of the U.S. bankruptcy code. The court began, as in Nippon Paper, by labeling the issue as one of "International Comity," which led to a discussion of Hilton (an irrelevant recognition-of-judgments case) and quotation of Hilton's language as to the uncertain authority and discretionary implementation of "comity." Id. at 1046 (describing comity as "'neither a matter of absolute obligation . . . nor of mere courtesy and good will'") (quoting Hilton v. Guyot, 159 U.S. 113, 163-64 (1895)). After this uncertain start, however, the court discussed the Murray presumption and recognized that "comity is exercised with reference to 'prevalent doctrines of international law.'" Id. at 1047 (quoting Lauritzen v. Larsen, 345 U.S. 571, 577 (1953)). After more discussion, the court ultimately reached the correct analytical result that the extraterritorial scope of the bankruptcy code would, given the code's general language, be interpreted in conformity with international law rules of extraterritorial jurisdiction. Id. However, the court could have saved several pages of desultory and potentially misleading discussion by eschewing the phrase "international comity" altogether and simply describing the case as an application of the Murray rule. Cf. United States v. Vasquez-Velasco, 15 F.3d 833, 849 (9th Cir. 1994) (applying the Murray rule in a straightforward manner to determine the extraterritorial scope of the federal racketeering statutes without reference to the notion of "comity").
184. See Lowenfeld, supra note 153, at 52 & n.50 (noting that the Restatement (Third) of Foreign Relations Law generally avoids the phrase "comity" to lessen the dangers of this confusion); see also Restatement (Third) of Foreign Relations Law, §§ 101 cmt. (e), 403 cmt. (a) (limiting reliance on "comity"). While the disconnection from international law may lead to construction of statutes to reach beyond international law limits (as arguably occurred in Hartford and Nippon Paper), it may also lead to constructions narrower than required by international law. See, e.g., Neely v. Club Med Management Servs., Inc., 63 F.3d 166, 210-16 (3rd Cir. 1995) (Cowen, J., concurring and dissenting) (suggesting that U.S. statute at issue might not cover injury to U.S. plaintiff abroad even where defendant was a U.S. corporation and no countervailing foreign interest was demonstrated). In short, use of the term "comity" leaves courts without guidance as to the source of their authority or the nature of their inquiry. The doctrine is better described precisely as an outgrowth of the Murray rule conforming ambiguous statutes to customary international law. That leaves the difficulty of determining what international law requires (and whether Congress intended to override it), but at least it gives an understandable account of what the court is doing, and why.
185. For a good example of successive application of the distinct presumptions, without reference to comity, see United States v. Vasquez-Velasco, 15 F.3d 833, 849 (9th Cir. 1994) (applying first the ARAMCO presumption, then the Murray presumption).
186. E.g., Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 482, 491-93 (1983) (permitting suit in federal court based on Netherlands law).
187. Indeed, in Professor Paul's comprehensive historical account of the comity doctrine, the phrase first arose as a way to "explain the operation of foreign law within the territory of another sovereign." Paul, supra note 12, at 15 (discussing the writings of Ulrich Huber and related seventeenth-century Dutch jurists).
188. See Timberlane, 549 F.2d at 615, on remand 574 F. Supp. 1453, 1469-73 (N.D. Cal. 1983) (concluding, under the Ninth Circuit's test, that Honduran interests outweighed U.S. interests), aff'd, 749 F.2d 1378, 1382-85 (9th Cir. 1984) (endorsing the district court's application of the circuit's prior opinion in the case).
189. Timberlane, 749 F.2d at 1382-85.
190. The Timberlane court somewhat confusingly described its holding as a conclusion that the court lacked "jurisdiction" under the Sherman Act. Timberlane, 749 F.2d at 1382-83. Plainly by dial it meant that the Sherman Act did not prohibit the activities in question. See also Neely v. Club Med Management Servs. Inc., 63 F.3d 166, 174-78 (3rd Cir. 1995) (en banc) (concluding after elaborate analysis that the question of a statute's international reach is not truly jurisdictional, but is simply a question whether the plaintiff stated a claim under the relevant statute).
191. A third category, which is not properly understood as an enforcement of foreign law, arises when the legal consequences under U.S. law depend upon the status of a person or activity under foreign law. An example is Saroop v. Garcia, 109 F.3d 165 (3rd Cir. 1997), discussed supra notes 45-53 and accompanying text. Saroop, a criminal defendant, argued that her extradition was illegal under U.S. law because there was no valid extradition treaty between the U.S. and Trinidad & Tobago. That is a claim under U.S. law, but on the facts of the case it depended upon whether Trinidad & Tobago had incorporated the terms of the U.S.-U.K. extradition treaty - which of course is a question of foreign law. Thus, the court investigated the content of foreign law (as described supra Part II.C), but its holding (that the extradition was, in fact, legal) was one of U.S. law. Similarly, in Kaho v. Ilchert, 765 F.2d 877 (9th Cir. 1985), the issue was the defendant's immigration status under U.S. law; that status in turn depended upon whether his adoption was valid under Tongan law. The court investigated Tongan law in the course of rendering its decision on U.S. law. These circumstances do not involve any deference to or accommodation of foreign law; they simply recognize that consequences under U.S. law may depend upon status under foreign law. However, the law being applied is, in such cases, U.S. law.
192. It has been held, for example, that in antitrust cases a defense known as "foreign sovereign compulsion" generally excuses otherwise proscribed conduct when that conduct occurs abroad and is required by foreign law. Timberlane, 549 F.2d at 606. As noted in Interamerican Refining Co. v. Texaco Maracaibo, Inc., 307 F. Supp. 1291 (D. Del. 1970): "[W]hen a nation compels a trade practice, firms thus have no choice but to obey. Acts of business become acts of the sovereign. The Sherman Act does not confer jurisdiction on U.S. courts over acts of foreign sovereign. By its terms, it forbids only anticompetitive practices of persons and corporations." Id. at 1298. Alternatively, (assuming the activity occurred entirely within the foreign nation) it would be said that the act of state doctrine (presumption) limited the application of the (generally worded) antitrust laws.
193. This assumes, of course, that the court has personal jurisdiction over the parties as required by the Due Process Clause and, in the case of federal courts, that the court has subject matter jurisdiction under Article III of the Constitution.
194. Cf. Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 491-92 (1983) (involving adjudication of international contract dispute based on Netherlands law in which neither party was a U.S. entity).
195. As noted above, where the foreign law is contrary to U.S. law, its nonenforcement arises from the relationship of the U.S. court to the U.S. lawmaking authority. Where the foreign law conflicts with an unenacted U.S. policy (e.g., U.S. law permits what the foreign law prohibits), the court is not precluded by sovereign direction from enforcing the foreign law, but the policies that would otherwise support its discretionary decision to do so are severely undermined.
196. See supra notes 153-61 and accompanying text.
197. Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51-52 (2d Cir. 1965). Note, however, that as a result of a different manifestation of the act of state doctrine, the public policy limitation is itself generally restricted to extraterritorial acts of foreign countries. A court should not ordinarily refuse to adjudicate a suit based upon a territorial law of a foreign country on public policy grounds, since to do so would amount to a judgment on the foreign law in contravention of the act of state doctrine. See Republic of Iraq, 353 F.2d at 50-51. It is also said that U.S. courts will not enforce the penal or revenue laws of a foreign country under any circumstances. See Banco Nacional de Cuba v. Sabbatino, 367 U.S. 398, 438 (1964) (acknowledging principle that "a court need not give effect to the penal or revenue laws of foreign countries"); The Antelope, 23 U.S. 66, 123 (1825) ("The courts of no country execute the penal laws of another"); British Columbia v. Gilbertson, 597 F.2d 1161, 1164 (9th Cir. 1979) (same). These rules may be related: because foreign countries are particularly sensitive to penal and revenue laws, a court does not wish to be in the position of deciding whether such laws accord with U.S. public policy; because penal or revenue laws are perhaps most likely to conflict with U.S. public policy, a U.S. court would not want to be compelled to enforce them without a public-policy review. Hence a protective blanket rule denying all enforceability has been recognized. See Gilbertson, 597 F.2d at 1164 (quoting Moore v. Mitchell, 30 F.2d 600, 604 (2d Cir. 1929) ( L. Hand, J. concurring)). Finally, as a result of yet another manifestation of the act of state doctrine, a court will not adjudicate a claim based on foreign law against (or questioning the legality of an act of) the foreign government, when the act in question occurred in the sovereign's territory. Oetjen v. Central Leather Co., 246 U.S. 297, 303-04 (1918); Underhill v. Hernandez, 168 U.S. 250, 252 (1897).
198. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-61 (1981) (discussing factors); Gulf Oil Co. v. Gilbert, 330 U.S. 501, 507-09 (1947); In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1165-66 (5th Cir. 1987) (en banc).
199. See supra Part III.A.3 (discussing the Murray rule).
200. See Timberlane Lumber Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 549 F.2d 597, 615 n.34 (9th Cir. 1976) ("Our [holding] does not in any way require the court to question the 'validity' of 'foreign law or policy.' Rather, the legitimacy of each nation's interest is assumed. It is merely the relative involvement and concern of each state with the suit at hand that is. to be evaluated . . . .").
201. Republic of Iraq, 353 F.2d at 51-52.
202. Hilton v. Guyot, 159 U.S. 113, 163-64 (1895).
203. Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516 (2d Cir. 1985).
204. Id. at 519.
205. Allied Bank Int'l v. Banco Credito Agricola de Cartago, No. 83-7714, No. 651, 1984 U.S. App. LEXIS 23237, at *4 (2d Cir. Apr. 23, 1984), withdrawn 757 F.2d 516 (2d Cir. 1985).
206. See Philip J. Power, Sovereign Debt: The Rise of the Secondary Market and its Implications for Future Restructurings, 64 Fordham L. Rev. 2701, 2732, 2738-41 (1996) (discussing response to the initial ruling in Allied Bank); Roger Zaitzeff & C. Thomas Kunz, The Act of State Doctrine and the Allied Bank Case, 40 Bus. L. 449, 450 (1985) (same).
207. See Philip J. Power, Sovereign Debt: The Rise of the Secondary Market and its Implications for Future Restructurings, 64 Fordham L. Rev. 2701, 2732, 2738-41 (1996) (discussing response to the initial ruling in Allied Bank); Roger Zaitzeff & C. Thomas Kunz, The Act of State Doctrine and the Allied Bank Case, 40 Bus. L. 449, 450 (1985) (same).
208. Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522-23 (2d Cir. 1985).
209. See supra Part III.A.2 (discussing the act of state doctrine). E.g. W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964); Underhill v. Hernandez, 168 U.S. 250, 252 (1897).
210. See supra Part III.A.2.
211. Allied Bank, 757 F.2d at 521-22. The district court reached the opposite conclusion (incorrectly, in my view and in that of the court of appeals) and dismissed the suit under the act of state doctrine. Allied Bank Int'l v. Banco Credito Agricola de Cartago, 566 F. Supp. 1440, 1443 (S.D.N.Y. 1983). The "situs" of a contractual obligation for these purposes has proved a difficult and somewhat artificial conceptual matter. See Ramsey, supra note 91, at 23-31 (discussing location of contracts in the act of state context). However, by any test the Allied Bank contract (which was negotiated in New York, executed in New York and performable in New York, had a New York obligee and specified New York law as governing) would be associated with New York under most conventional thinking. Id.
212. See Allied Bank, 757 F.2d at 521-22 (reversing the district court's dismissal on act of state grounds).
213. See supra Part III.A.3 (discussing territorial jurisdiction under international law).
214. There was, moreover, little question that New York specifically intended its law to apply to the contract. The contract was performable in New York and stated that it was to be governed by New York law. See New York Gen. Oblig., § 5-1401 (1984) (providing that contracts choosing New York law and having some connection to New York are to be governed by New York law).
215. See supra Part III.A.3, 4 (describing issue of U.S. extraterritorial jurisdiction).
216. If New York law recognized a defense of foreign sovereign compulsion, then the existence of the Costa Rican law might create a defense under New York law - but no one argued that New York recognized such a defense in these circumstances.
217. Allied Bank, 757 F.2d at 522-24. Although the Allied Bank court described its inquiry as whether foreign law "should be recognized by the court," id. at 522, it should be clear that the court was not deciding merely to "recognize" that law in the conventional sense of providing the basis for a cause of action, but deciding to "recognize" foreign law in the much stronger sense of overriding a cause of action created by state law.
218. See Zaitzeff & Kunz, supra note 192, at 450.
219. See Allied Bank, 757 F.2d at 522 (concluding that "comity" did not require recognition of the Costa Rican law because - but only because - the Costa Rican law did not accord with "the law and policy of the United States").
220. Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 109 F.3d 850, 852-54 (2nd Cir. 1997). The argument for applicability of New York law in Pravin parallels the argument in Allied Bank: the obligation (and thus the operation of New York law) was territorial to New York, and in any event the operation of New York law was specifically directed by the terms of New York General Obligation Law § 5-1401. Cf. supra notes 189-93 and accompanying text (explaining the application of New York law to the contract in Allied Bank).
221. Pravin, 109 F.3d at 853 (noting Peru's argument "that allowing the action to go forward would . . . result in a creditor stampede to find and attach Peruvian assets, and such a stampede would, in turn, disrupt Peru's structural reform efforts.").
222. Id. at 855. Following Allied Bank, the Pravin court concluded that comity would not be extended to Peru's extraterritorial interest because - but only because - that interest was inconsistent with U.S. public policy. Id. at 854-56.
223. Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47 (2d Cir. 1965); see Part III.B supra (discussing the enforcement of foreign law).
224. See Allied Bank, 757 F.2d at 522.
225. Republic of Iraq, 353 F.2d at 51-52.
226. See supra Part III.B (discussing the enforcement of foreign law).
227. See Allied Bank, 757 F.2d at 519 (describing dispute as turning upon "principles of comity").
228. Id. at 522-23.
229. See Republic of Iraq, 353 F.2d at 51 (describing the tradition of protecting individual property interests from government seizure as an overriding state policy).
230. Allied Bank, 757 F.2d at 522-23.
231. See Pravin Banker Assocs., Ltd. v. Banco Popular del Peru, 109 F.3d 850, 855 (2nd Cir. 1997) (describing the inquiry as whether recognition of the foreign act "would prejudice U.S. interests").
232. See generally Gade v. National Solid Waste Management Ass'n, 505 U.S. 88 (1992) (discussing preemption).
233. Allied Bank Int'l v. Banco Credito Agricola de Cartago, No. 83-7714, No. 651, 1984 U.S. App. LEXIS 23237 (2d Cir. Apr. 23, 1984), withdrawn 757 F.2d 516 (2d Cir. 1985).
234. Allied Bank, 757 F.2d at 522; Pravin, 109 F.3d at 855.
235. See Jack L. Goldsmith, Federal Courts, Foreign Affairs, and Federalism, 83 Va. L. Rev. 1617 (1997) (discussing preclusion of state activity in foreign affairs).
236. U.S. Const, art. VI ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. . . .").
237. Zschernig v. Miller, 389 U.S. 429, 435 (1968). Zschernig involved an Oregon statute that denied inheritance rights to heirs living under regimes that lacked protection for private property (in effect, communist countries). Operation of the statute required inquiry into the state of property laws in the foreign nation, and implied disrespect for and discrimination against those with differing conceptions of property. The Court found that such a statute had impermissible effects upon foreign affairs. On Zschernig, see Henkin, supra note 57, at 162-65.
238. See Henkin, supra note 57, at 165 & n.** ("One would be bold to predict that [Zschernig] has a future life; might it remain on the Supreme Court's pages, a relic of the Cold War?"); Goldsmith, supra note 220 (criticizing Zchernig).
239. Zschernig, 389 U.S. at 435.
240. That is, international agreements concluded on the authority of the President alone, without approval by statute or through the "advice and consent" of the Senate as specified in Article II, § 2 of the Constitution.
241. See Dames & Moore v. Regan, 453 U.S. 654 (1981) (concluding that executive agreement between the United States and Iran ending the Iran hostage crisis superseded state contract law); United States v. Pink, 315 U.S. 203 (1942) (concluding that executive agreement between the United States and the Soviet Union validating Soviet nationalizations superseded New York law that refused to recognize such nationalizations); United States v. Belmont, 301 U.S. 324 (1937) (same). The appropriateness of these decisions has been debated. See Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133, 139-59 (1998) (discussing constitutionality of executive agreements).
242. See Dames & Moore v. Regan, 453 U.S. 654 (1981) (concluding that executive agreement between the United States and Iran ending the Iran hostage crisis superseded state contract law); United States v. Pink, 315 U.S. 203 (1942) (concluding that executive agreement between the United States and the Soviet Union validating Soviet nationalizations superseded New York law that refused to recognize such nationalizations); United States v. Belmont, 301 U.S. 324 (1937) (same). The appropriateness of these decisions has been debated. See Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. Rev. 133, 139-59 (1998) (discussing constitutionality of executive agreements).
243. See Banco Nacional de Cuba v. Sabbatino, 367 U.S. 398, 498 (1964) (construing confiscatory law of Cuba to override New York property law where confiscation occurred within Cuba); cf. Republic of Iraq v. First Nat'l City Bank, 353 F.2d 47, 51 (2nd Cir. 1965) (refusing to accord confiscatory law of Iraq recognition on act of state grounds where purported confiscation occurred in the United States). Note that the operation of the act of state doctrine is distinct where a state (as opposed to federal) law is concerned. As discussed supra Part III.A.2, in the federal context the act of state doctrine operates as a presumption that can be overridden by federal law. In the state law context, however, the act of state doctrine under Sabbatino invests foreign law with preemptive power that can be overridden by federal law but not by state law.
244. See Allied Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516, 522 (2nd Cir. 1985) (rejecting defense based on act of state doctrine). On this ground, the act of state defense was apparently not even raised in Pravin. See Power, supra note 192, at 2734 (discussing the Pravin litigation at the district court level).
245. See United States v. Curtiss-Wright Export Co., 299 U.S. 304 (1936) (discussing the idea of inherent executive authority in foreign affairs).
246. See Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993) (discussing presidential law-making functions).
247. See supra notes 189-93 and accompanying text. See also Goldsmith, supra note 220, at 1620-25 (criticizing judicial decisionmaking capability in the foreign relations context).
248. Prior to enactment of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602-1611, the question whether a foreign government defendant could claim sovereign immunity in U.S. courts was decided on a case-by-case basis, with courts deferring substantially to the recommendations of the executive branch. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) (observing that the purpose of FSIA was to "free the Government from the case-by-case diplomatic pressures, to clarify the governing standards and to assure litigants that . . . decisions are made on purely legal grounds and under procedures that insure due process") (internal quotations omitted); Andreas Lowenfeld, Claims Against Foreign States - A Proposal for Reform of U.S. Law, 44 N.Y.U. L. Rev. 901, 906-12 (1969) (criticizing pre-FSIA practice).
249. Prior to enactment of the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602-1611, the question whether a foreign government defendant could claim sovereign immunity in U.S. courts was decided on a case-by-case basis, with courts deferring substantially to the recommendations of the executive branch. See Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488 (1983) (observing that the purpose of FSIA was to "free the Government
250. See Goldsmith, supra note 220, at 1620-25 (criticizing nonstatutory limitations on state power in foreign affairs).
251. Torres v. Southern Peru Copper Corp., 965 F. Supp. 899 (S.D. Tex. 1996), aff'd, 113 F.3d 540 (5th Cir. 1997).
252. Id. at 907.
253. Id. at 908.
254. See Part III.C supra (discussing tests for extraterritorial application of U.S. law and enforcement of foreign law). See also Timberlane Lumber Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 549 F.2d 597, 615 n.34 (9th Cir. 1976) (noting that inquiry concerning extraterritorial application of U.S. law - unlike inquiry concerning application of foreign law - does not involve consideration whether foreign law is consistent with U.S. public policy).
255. In Torres there may have been some factual dispute relating to the application of U.S. law, thus leading the court to try to finesse the issue in its dismissal. See Torres, 965 F. Supp. at 907 (discussing factual issues).
256. See supra Part III.B. Because the alleged torts occurred in Peru, there would not be any question that Peruvian law was applicable to the supposed injuries; the only question is whether the U.S. court would enforce concededly applicable foreign law.
257. Torres, 965 F. Supp. at 902-07.
258. See supra Part III.B (discussing the enforcement of foreign law).
259. See supra Part III.A (discussing extraterritorial legislation).
260. See supra Part III.A.1 (discussing the presumption against extraterritorial application of U.S. law).
261. See supra Part III.A.2 (discussing the act of state doctrine as a limiting presumption).
262. See supra Part III.A.3 (discussing the Murray rule). To the extent the defendants were not citizens or residents of the prescribing jurisdiction, an extraterritorial assertion of jurisdiction under the Torres facts would appear to violate the "none-of-your-business" limitation exemplified by Lauritzen. See supra notes 128-32 (discussing the Lauritzen rule). Thus, in the federal-law hypothetical, a clear intent to override international law would likely be required under Murray.
263. As discussed, the Supreme Court has indicated that the act of state doctrine does apply conclusively against state law. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964). Thus the first question in Torres should have been whether application of Texas law would result in overriding a territorial act of the Peruvian government. That may have been the case: Peru had issued permits to the defendant companies to engage in the challenged activities. Torres v. Southern Peru Copper Co., 965 F. Supp. 899, 901 (S.D. Tex. 1996). If so, the case should have been dismissed on act of state grounds. Apparently, however, the defense did not raise this objection.
264. One might argue that the interpretive rules apply to state-law questions as a matter of federal common law, see Goldsmith, supra note 220 (discussing this argument), or as ancillary to the federal government's constitutional power in foreign affairs, see Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1292-1305 (1996) (arguing that the federal common law of foreign relations can be understood as an outgrowth of a constitutional allocation of foreign relations powers to the federal government).
265. See Janis, supra note 62, at 340-41 (noting the reliance on Timberlane by the Restatement (Third) of Foreign Relations Law).
266. Torres, 965 F. Supp. at 908. The court also acknowledged the Restatement factors used to determine "whether the comity of nations doctrine should be applied." Id. (citing Restatement (Third) of Foreign Relations Law § 403 (1987)).
267. See Timberlane Lumber Co. v. Bank of America Nat'l Trust and Sav. Ass'n, 549 F.2d 597 (9th Cir. 1976) (discussing application of U.S. law to events in Honduras).
268. See supra Part III.A.3 (discussing Timberlane as an application of the Murray presumption).
269. Torres v. Southern Peru Copper Corp., 113 F.3d 540 (5th Cir. 1997).
270. Id. at 544.
271. Id. at 543. The court of appeals also found, with the district court, that the parties were fully diverse. Id. at 543-44.
272. Id. at 542. See Torres, 113 F.3d at 542 n.7 (citing Texas Indus., Inc. v. Radcliff Materials Inc., 451 U.S. 360 (1981)).
273. Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 299-304 (1994); see Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984) (arguing that international law is "like", but not identical to, federal common law). Although general statements to the effect that international law is part of federal common law are common in court decisions, e.g., Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the effect of that observation upon state law has been infrequently considered by courts. See Brilmayer, supra, at 296-97 (observing that common belief that international law is part of federal law has not led courts generally to circumscribe assertions of state legislative jurisdiction in accordance with international law).
274. Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 299-304 (1994); see Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984) (arguing that international law is "like", but not identical to, federal common law). Although general statements to the effect that international law is part of federal common law are common in court decisions, e.g., Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the effect of that observation upon state law has been infrequently considered by courts. See Brilmayer, supra, at 296-97 (observing that common belief that international law is part of federal law has not led courts generally to circumscribe assertions of state legislative jurisdiction in accordance with international law).
275. Lea Brilmayer, Federalism, State Authority, and the Preemptive Power of International Law, 1994 Sup. Ct. Rev. 295, 299-304 (1994); see Louis Henkin, International Law as Law in the United States, 82 Mich. L. Rev. 1555 (1984) (arguing that international law is "like", but not identical to, federal common law). Although general statements to the effect that international law is part of federal common law are common in court decisions, e.g., Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995), the effect of that observation upon state law has been infrequently considered by courts. See Brilmayer, supra, at 296-97 (observing that common belief that international law is part of federal law has not led courts generally to circumscribe assertions of state legislative jurisdiction in accordance with international law).
276. See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 816 (1997) (arguing that international law is not part of federal common law).
277. See supra Part II.C (discussing the problematic use of "international comity" in proof of foreign law cases).
278. See Ramsey, supra note 91, at 5-12 (discussing costs of ex ante uncertainty in international transactions).