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International Comity

International Comity in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): The U.S. brief filed in the Second Circuit in Figueiredo (discussed in Section 1 above) also contained an argument that principles of international comity did not require dismissal. The brief asserted that it was not an abuse of discretion to deny the motion to dismiss because dismissal on comity grounds is appropriate only when there is a true conflict between domestic and foreign law and Peru had presented no evidence of such a conflict. Moreover, the strong U.S. policy interests in promoting confirmation and enforcement of arbitral awards covered by treaties weighed against dismissal. The brief is available in full at (internet link) state.gov/s/l/c8183.htm. The decision of the Second Circuit Court of Appeals rendered in December 2011 was not based on comity. Figueiredo v. Peru, 665 F.3d 384 (2d Cir. 2011).

In FG Hemisphere Associates, discussed in information on Privileges and Immunities in this legal Encyclopedia.A.4., the United States argued based on principles of comity that contempt sanctions against a foreign government were improper in a case seeking to execute a judgment under the Foreign Sovereign Immunities Act (“FSIA”). FG. Hemisphere Assocs., LLC v. Democratic Republic of Congo, 637 F.3d 373 (D.C. Cir. 2011). The U.S. Court of Appeals for the D.C. Circuit rejected the comity argument (footnotes omitted):

We turn to the government's and the DRC's comity arguments based on international practice and, as a separate although related matter, the government's foreign relations concerns. Although it may be true, as the government contends, that at least several countries have explicitly prohibited monetary sanctions against a foreign state for refusal to comply with a court order, that seems quite irrelevant because the U.S. Congress has not. And we should bear in mind that the U.S. discovery process is extraordinarily extensive compared to that of most foreign legal systems. See Joseph W. Dellapenna, Suing Foreign Governments and Their Corporations 652-53 (2d ed. 2003).

The government also suggests that we should be concerned about the consequences of affirming the district court's order given possible reciprocal treatment of the United States in foreign courts. Although we often give consideration to the government's assertion that a legal action involves sensitive diplomatic considerations, we only defer to these views if reasonably and specifically explained. See Altmann, 541 U.S. at 702. The government does not explain how the United States would be harmed if it were found in contempt under reciprocal circumstances. The broad, generic argument that the government offers here seems to us to be appropriately presented to Congress – not us. The government, moreover, did not present its foreign policy concerns to the district court. We do recognize that there could be circumstances in which particular pressing foreign policy concerns involving a defendant country could affect a court's decision, and those concerns, depending on their timing, could justify the government's presenting those matters first in an amicus brief in the court of appeals, but the government has not presented any such argument in this case.