Application of Comity of Nations for International Private Adjudication

Pranjal Pranshu Student, KIIT Law School, Bhubaneswar, India ________________________________________________


The doctrine of Comity of Nations under Private International Law


The notion of applicability of the doctrine of comity of nations in private international law is intricately related to the concept of the idea of sovereignty and sovereign jurisdiction of the states.[1] It differs from the public international law, in that it engages in providing methodology of application of municipal law in issues that are transnational in nature. International law, both public and private has always held deep regards to territorial sovereignty, which in essence means freedom from interference of other nations in the territory of the said country. In the globalized world though, to enhance the work relations among the nations, there has always been a drive to reduce the strict rigidity of territorial sovereignty.[2] While essentially a component of public international law, the implications are also present in the realm of the private international law. The practice of reducing the rigidity of strict sovereignty as the various nations look for a role in the international sphere gave rise to the concept of comity. The concept evolved as a philosophy aptly following the development of international law. It encouraged co-operation and co-ordination among the nation-states and urged them to promote mutual respect for laws of each other. The concept promoted a sense of mutuality and deference towards other nations, especially when it was not against the public policy of the nation itself. Comity in not in the strictest sense a mandate on the nation, which can simply reject the applicability of the foreign law. In fact, in the case of Hilton v. Guyot, comity was expressed as “neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other”[3] which was highlighted by the Justice Horace Gray as “the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”[4] Comity has been highlighted as an important part of international law. In the Danzig Case, it was stated by the Permanent Court of International Justice that “It should be observed that a state cannot adduce as against another state its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force”[5]

The Standard Approach in the application of Comity.

The perception maintained by the doctrine is that the states must respect the laws of foreign states, Even though it is not a recent concept, being established in the middle ages,[6] in light of the growing trade between nations, the associations of its use in private international law, is a much recent development. It grew to accommodate the private international law, as the movement of people grew, which necessitated proper dispute resolution mechanisms. The doctrine did the same, providing for a valid and conventional reason to bring about a justiciable, organized, and consistent dispute resolution, which is an essential goal of any law. It added to the unification of the world and promoted the cause of reciprocity among the nations. This globalized approach to resolve the private disputes of international nature simplified the entire process, where the nation can simply accept the rules and judgement of the foreign nations if the elements of the dispute are justifiably resolved in that foreign state of containing majority elements of that foreign state. This complements the principle of res judicata, which calls for the case to be settled when it has already been decided in an appropriate forum.[7] When the judgement of a court is deemed final even in the foreign state, the speed, and scope of application of the judgment is enhanced tremendously. The essentiality is that the case should not be re-prosecuted when it has already been settled elsewhere in a place that can be considered a competent jurisdiction. Thus, every single state should consider such a matter settled in its jurisdiction if it is considered settled in the jurisdiction that is competent. Re-prosecution would not only allow the party to circumvent the original judgement but also ridicule the said original judgement, which would strain the relations among the said states. Thus, the principle ensures that the parties to the judgement would thus be unable to escape the said judgement by moving to another country.

The doctrine of comity has a huge significance upon the international and national courts and acts as building blocks for the societal norms where the judges rely upon a specific interpretation to deal with a specific set of problems. The domestic courts would consider the foreign judgments to be equivalent to the judgment given by them when dealing with individual rights and exercise the same role of the judiciary to safeguard them. Hence, it gives a chance to the judges, arbitrators, and mediators to share their perspectives and notions, further acting as a facilitator of the different legal systems. Some of the examples of judgments, upon which the foreign jurisdictions rely, including determinations of marital status, decrees of adoption, and findings of negligence etc. When these cases occur internationally, they generally require the elements of the case to involve multiple jurisdictions. Proper acceptance of comity necessitates that the foreign judgement is given impact. The impact does not just mean a mere nod to the judgement, but giving it the same standard of enforceability as it had at the place the said judgment was pronounced.

Perhaps the sole reason the courts would refrain from recognizing and giving impact to a foreign judgement in competent jurisdictions would be if the said judgements directly offend the sensibilities of the local laws and affront its existence.[8] But such a refusal should not be the norm, but only an exception to be followed in the most convincing cases. The laws of different states are different, and hence it is reasonable that there would be certain deviations among the laws on the same subject. In fact, the need for private international law arises because of such deviations. Thus, the courts should try to handle the deviations constructively, and in the manner that only those deviations that are severe and against the public policy of the state and grossly undermine the law in such a state shall, and cannot be construed harmoniously be the cause of rejection of the foreign law and judgements. Further, the implementation of the foreign judgement may be denied if the nexus between the parties to a judgement, the cause of action, and the jurisdiction in which it was rendered is nonexistent, which would be the case if the jurisdictional inadequacy is extraordinary. In exclusion to these factors, there is little reason for a state to reject the foreign laws and judgements. Unless we accept this as the standard, comity would be reduced to just a dream. One can take the instance of a judgment of divorce where the decree was sent via mail order, thus the decision violated the principles of natural justice, as it did not allow the other party a fair chance to be heard. Such a judgement may be held back. But it would fall on the party who seeks denial of enforcement of such a judgment to prove the inadequacies of the judgement in the jurisdiction where the other party seeks to enforce it. As stated earlier, a convincing proof of the offence to the sensibilities to the laws of the nations is to be required before an acknowledgement of a foreign judgement is denied. But with prominent interactions between legal frameworks and extensive investigation of comparative law, jurisprudential ideas of equity and fairness have turned out to be all the more indistinguishable; and the events whereupon public policy grounds will be utilized to preclude acknowledgement from claiming foreign judgements will only grow rarer. The execution of comity while would affect the role of the local courts as independent national bodies, but make them concurrently the channelers of foreign laws and judgements. Thus, comity does not erode the national laws but promotes the application of foreign laws, when such an application causes no harm to the national laws.

Conclusions

The concept of comity of nations has gone through different interpretation over a period of time but the concept can be understood as the mutual understanding between different countries in order to respect the laws and decisions given by the foreign courts. While the foreign judgements would have an absolute binding effect upon each nation, but the judgements should be tested through the lenses of equity and good faith, and followed in most of the cases. Certain scholars have criticized the doctrine, equating it to be radically inconsistent with the international law’s fundamental notion of state sovereignty. But the rise of globalization demands comity, even if the states are considered sovereign. Still, the judgements pertaining to civil cases having a drastic impact upon the rights of the parties have to be carefully implemented. For e.g., Comity opens a broader scope for international commercial arbitration and also institutional arbitration where the parties are not harassed due to the selection of different jurisdictions but rather a mutual contract to resolve the conflict in a particular place. Due to the chaotic approach in the involvement of various jurisdictions, the arbitration and mediation may eventually turn out be the more robust mechanism in dealing with laws of multiple jurisdictions.

There are certain stringent parameters in order to judge the consequences of the particular judgment in the lives of the parties as well as society as a whole, and no state would accept the laws and judgements of other if it wrongs its’ own sensibilities. Comity, being a part of international law is not enforceable per se. Despite the lack of abject enforceability, it cannot be denied that the notion of comity has become quintessential to the resolution of disputes involving private international law. And comity is only to be of deeper significance as the world slowly inches towards unification.


Bibliography

[1] Kurt Lipstein, Principles of the Conflict of Laws: National and International (The Hague: Martinus Nijhoff, 1981) 16. [2] Rodolfo De Nova, Historical and Comparative Introduction to Conflict of Laws (Leyden: A.W. Sijthoff, 1966) 441. [3] Hilton v. Guyot [1895] 159 U.S. 113 (SC) 143. [4] Ibid 164. [5] Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory, (Advisory Opinion), PCIJ Series A/B No. 44 (Feb. 4, 1932). [6] H.E. Yntema, The Historic Bases of Private International Law, (1953) 2 AM. J. COMP. L. 297, 305-08. [7] Developments in the Law-Res Judicata, (1952) 65 Harv. L. Rev. 818, 820. [8] Joel R. Paul, ‘Comity in International Law’ (1991) 32 harv. int’l l.j. 1, 24

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