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date: 21 July 2019

Abstract and Keywords

This chapter looks at why the United States understands many doctrines of foreign relations law to be based on international comity, while continental European states do not. The U.S. understanding shows the influence of Justice Joseph Story, who made international comity the basis for choice of law and the enforcement of foreign judgments. U.S. courts later made comity the basis for other doctrines, including the act of statute doctrine, the presumption against extraterritoriality, foreign state compulsion, forum non conveniens, limits on antisuit injunctions, the privilege of foreign governments to bring suit in U.S. courts, and the doctrine of sovereign immunity. The continental European understanding shows the influence of Friedrich Carl von Savigny, who built a choice of law system on different foundations and with universalist aspirations. In recent years, the Court of Justice of the European Union (CJEU) has started to tie together some of the doctrines that U.S. courts would label international comity under the heading of “mutual trust,” but mutual trust is more limited than international comity. This chapter argues that looking at doctrines of foreign relations law through a comity lens sharpens the distinction between national law and international law, emphasizes the freedom of each nation to shape doctrines of foreign relations law as it thinks best, and brings into better focus the interrelationships among those doctrines.

Keywords: United States, international comity, Ulrich Huber, Joseph Story, Friedrich Carl von Savigny, mutual trust, deference, national control

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