Comity: the American Development of a Transnational Concept

Abstract

elsewhere, and stimulated further reflection on the role of the concept, especially when employed by prominent American scholars. 8 This has in turn prompted the revitalisation of comity as a tool capable of alleviating problems of a global nature. 9 II. The Problem of Comity: Definitions and Methodology Nearly all common law courts refer to comity, but there is comparatively little agreement as to what exactly comity is and how it should operate, leading many commentators to be dismissive of the notion. 10 Even among those who are not, views tend to diverge significantly and definitional attempts seem to be doomed at the outset: indeed, one of the most important work on the subject avoids the problem by first explaining what comity is not. 11 Such definitions are important: what use could be made of a notion that "invites intuitive adjudication, and hence litigation-inspiring ex ante unpredictability"? 12 Such was the wariness towards the indeterminacy of the concept that the reporters of the Third Restatement on Foreign Relations Law preferred to avoid the word altogether. 13 Most American scholars still anchor the discussion to the definition of comity offered in the early landmark case Hilton v Guyot. As Justice GRAY put it, comity "in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and goodwill, upon the other. But it is 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 was are under the protection of its laws". 14