Comity as a Step towards the Unification of Private Procedural International Law


In Comity as a Step Towards the Unification of Private Procedural International Law, a new substantive role for comity is developed that would provide uniformity, preditability, reasonableness, and judicial self-restraint in cross border litigation. Specifically eight categories of U.S. contributions to the development of private procedural international law are critically examined so as to underscore the need to confer upon the doctrine of comity a substantive rubric that would give rise to the referenced precepts of uniformity, predictive value, reasonableness, and judicial self-restraint: (i) The principle of comity, or the normative dictate greater than mere international courtesy but inferior to a binding obligation, which leads to eight precepts that find comity as an organizing first principle; (ii) The extraterritorial application of United States statutory (positive law) within the framework of procedural private international law; (iii) The metamorphoses from an absolute theory to a restrictive theory of foreign sovereign immunity; (iv) Civil actions against sovereign states and the procedural defenses raised by foreign sovereigns as to such claims; (v) The original principles developed in the field of international arbitration; (vi) The methodologies for the “gathering of evidence” and “discovery” in the United States for purposes of assisting foreign tribunals; (vii) The recognition and enforcement of foreign judgments; and (viii) The jurisdiction that United States Federal District Courts have exercised in the arena of human rights. The analysis sharpens the contours of the developments and most significant contributions to procedural international private law that repeatedly arise in cross border dispute resolution.


International Law

Date of this Version

September 2006