Comity

The term comity was derived in the 16th century from the French comité, meaning association and from the Latin cōmitās, meaning courtesy and from cōmis, friendly, courteous. Comity may also be referred to as judicial comity or comity of nations. == History of comity (thirteenth century to nineteenth century) ==

The doctrine of international comity has been described variously "as a choice-of-law principle, a synonym for private international law, a rule of public international law, a moral obligation, expediency, courtesy, reciprocity, utility, or diplomacy. Authorities disagree on whether comity is a rule of natural law, custom, treaty, or domestic law. Indeed, there is not even agreement that comity is a rule of law at all." Because the doctrine touches on many different principles, it is regarded as "one of the more confusing doctrines evoked in cases touching upon the interests of foreign states." The principle of comity has been questioned and even rejected by many scholars throughout the years; however, the use of the term remains present in case law. European jurists have been wrestling with the decision to apply foreign law since the thirteenth century. A group of Dutch jurists created the doctrine of international comity in the late seventeenth century, most prominently Ulrich Huber. Huber and others sought a way to handle conflicts of law more pragmatically to reinforce the idea of sovereign independence. Huber "believed that comity was a principle of international law" but also that "the decision to apply foreign law itself was left up to the state as an act of free will." At the time of its initiation in the common law, comity was an attractive principle as the United States and England were in search of fundamental principle by which they could have nonconflictual law rules. Lord Mansfield viewed the application of comity as discretionary, with courts applying foreign law "except to the extent that it conflicted with principles of natural justice or public policy." He demonstrated this principle in Somerset v Stewart (King's Bench 1772), which held that slavery was so morally odious that a British court would not recognize the property rights of an American slaveholder in his slave out of comity. Comity was most famously introduced to the American common law by the American jurist Justice Joseph Story in the early nineteenth century. Much like Huber, Story sought to develop a new system of private international law that reflected the new commercial needs of the United States. Story's view, which ultimately prevailed, was that the consensual or voluntary application of comity doctrine would foster trust among states, "localize the effect of slavery," and reduce the risk of civil war. Westlake is praised for adopting Huber's comity in the English law; he rejected Story's approach. == Modern approaches to comity by legal system ==

United States In the law of the United States, the Comity Clause is another term for the Privileges and Immunities Clause of the Article Four of the United States Constitution, which provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Article Four as a whole—which includes the Privileges and Immunities Clause, the Extradition Clause, and the Full Faith and Credit Clause—has been described as the "interstate comity" article of the Constitution. In the case of Bank of Agusta v Earl, the court adopted Justice Joseph Story's doctrine of comity. At the end of the nineteenth century, the US Supreme Court delivered the classic statement on comity in the decision of Hilton v. Guyot (1895). The court stated that the enforcement of a foreign judgment was a matter of comity is viewed as the "classic" statement of comity in international law. The Court held in that case: This case continues to be the leading case cited by American courts when articulating the doctrine of comity. It is an important decision for the country as it articulates the definition of comity and does so in a more broad way than previously. Despite the broad definition in Hilton v Guyot, the court refused to enforce the French judgment based on reciprocity, as France would not have enforced an equivalent judgment. After the Cold War, the Supreme Court heard the case of Hartford Fire Insurance Co v California. In this case, Justice Souter gave the opinion that one only considers comity where there is a "true conflict between domestic and foreign law". In the dissent, Justice Scalia argues that extraterritorial jurisdiction must consider international comity to ensure international law is not violated. In the United States, certain foreign defamation judgments are not recognized under the SPEECH Act (a federal statute enacted in 2010), which supersedes the comity doctrine. The Act aims to stop "libel tourism." Professional Licensure In the United States, some states and territories recognize professional engineer licenses granted in a different jurisdiction, depending on the holder's education and experience (a practice called "licensure by comity"). Rules differ significantly from jurisdiction to jurisdiction. England and Wales By the end of the nineteenth century, comity had received judicial approval in English law as a foundational principle to private international law. In 1896, Professor Dicey published "Digest of the Law of England with Reference to the Conflict of Laws" that criticized the doctrine of comity on the basis that it is too vague as it promoted the recognition of foreign laws depending on option. The case law indicates that comity is relevant in the consideration of determining what effect another state's laws or judicial power should have in England in a given case. Morguard Investments Ltd. v De Savoye was the first case in this series considering comity in Canadian law. The common law reflected the principle from England that one of the basic tenets of international law is that sovereign states have exclusive jurisdiction in their territory. Therefore, before this decision, Canadian courts were conservative in recognizing foreign judgments, including those obtained in other Canadian provinces' courts. Justice La Forest acknowledges that the common law approach is not grounded in the realities of modern times as states cannot live in complete isolation due to travel, flow of wealth, skills and people. These extraterritorial effects of provincial legislation will be assessed according to the principle of comity. The court determines that the law of where the tort occurred should apply, this is known as lex loci delicti. Justice La Forest clearly reaffirmed the importance of comity in private international law in the decision. Australia The Australian Constitution recognizes that the Full Faith and Credit should be afforded by the Commonwealth and each state to all other Australian states: In case law, the High Court of Australia has never defined the meaning of comity in Australian law. Comity has played an important role in the development and application of Australian private law. European Union The Brussels 1 Regulation requires that the judgment of the court of one member states of the European Union (absence non-consenting defendants) shall be enforced by the court of another member state. ==See also==