The Doctrine of Comity in Private International Law
The D octrine of Comity in Private International Law
John Kuhn Bleimaier
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JOHN KUHN BLEIMAIER*
The doctrine of comity is the legal principle which dictates that a
jurisdiction recognize and give effect to judicial decrees and decisions
rendered in other jurisdictions' unless to do so would offend its public
policy.' Although rooted in the Middle Ages,' comity continues to be a
viable doctrine, because it facilitates the achievement of a primary
objective of law-the orderly, consistent and final resolution of disputes.
Comity has received rather scant attention in American jurisprudence
due to the constitutional requirement that each state accord full faith and
credit to judgments rendered in the courts of sister states. Historically, the
American legal system has depended more heavily on interstate questions
* B.A., Columbia College; M.I.A., Columbia University School of International Affairs; J.D.,
St. John's University.
Brown v. Babbitt Ford, Inc., 117 Ariz. App. 192, 571 P.2d 689 (Ct. App. 1977);
KelloggCitizens Nat'l Bank v. Felton, 145 Fla. 68, 199 So. 50 (1940); Jackson v. Shuttleworth, 42 Ill.
App. 2d 257, 192 N.E.2d 217 (App. Ct. 1963). In the leading American case on the comity of
nations, the Supreme Court of the United States defined the doctrine as follows:
"Comity," in the legal sense, is neither a matter of absolute obligation, on the one
hand, nor of mere courtesy and good will, 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 who are under the protection of its
Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). The idea that "comity" connotes mere courtesy
has led some commentators to criticize the doctrine as the underlying basis for the recognition
and enforcement of foreign judgments. See DicEY's CONFLICT OF LAWS 6-7 (6th ed. J. Morris
1949); H. GOODRICH, CONFLICT OF LAWS 11 (3d ed. 1949). This criticism rests solely on
definitional grounds. Russian Socialist Fed. Soviet Republic v. Cibrario, 235 N.Y. 255, 258, 139
N.E. 259, 260 (1923). Joseph Story, one of early America's great legal scholars, was aware of
this criticism as early as 1834. Nevertheless, he defended the use of the term "comity" as
the "most appropriate phrase to express the true foundation and extent of the obligation of
the laws of one nation within the territories of another." J. STORY, COMMENTARIES ON THE
CONFLICT OF LAWS § 38, at 37 (1834) (footnote omitted).
Bostrom v. Seguros Tepeyac, S.A., 225 F. Supp. 222 (N.D. Tex. 1963), ,todified, 347 F.2d
168 (5th Cir. 1965); Helton v. Crawley, 241 Iowa 296, 41 N.W.2d 60, 79 (1950); Anderson v.
N.V. Transandine Handelmaatschappij, 289 N.Y. 9, 19, 43 N.E.2d 502, 506 (1942); SToRY,
supra note 1, § 38; see note 16 infra.
3 See STORY, supra note 1, §§ 19-38; Yntema, The Historic Bases of PrivateInternational
of conflict of laws than on international questions,4 and the concept of full
faith and credit, therefore, has achieved greater prominence than the
doctrine of comity."
Since the United States Constitution does not impose the doctrine of
comity upon American courts,6 recognition of the judgments of foreign
tribunals is left to the discretion of individual courts. Yet, foreign country
judgments should be given the same effect as is required to be given sister
state decrees by the full faith and credit clause of the Constitution. 7 As a
matter of judicial self-preservation, the doctrine of comity must be
implemented universally in order to ensure that judicial decisions are truly
effective and enforceable.
The principle of full faith and credit has played an inestimable role
in the economic and social development of the United States as a strong
and well-integrated unit,' and the effective application of comity similarly
may contribute to the development of an economically rationalized
international community. Indeed, there is nothing more important to the
success of international commerce than that settlements of court disputes be
final. Such reasoning underlies the universally accepted principle of res
judicata.1 Just as a dispute may not be relitigated in the jurisdiction in
which it was settled, so also must that dispute be treated as finally resolved
by all other jurisdictions. The concept of res judicata, otherwise, is
hopelessly undermined. To permit a party to relitigate a case in any jurisdiction
having contact with the dispute would enable that party to flout the
authority of the forum in which the suit first was litigated.'0
The practical good sense in recognizing foreign judgments is
particularly evident in the area of international commerce. If multinational
corporations are to be bound transnationally by judgments in actions to which
they are parties, they will reap the benefits of such judgments in addition
to shouldering the burdens. In this age of burgeoning tourism and
internationally mobile manpower, the doctrine of comity is as important to
private individuals as it is to multinational corporations.1' Examples of
judgments upon which every person must be able to rely include
determinations of marital status, decrees of adoption and findings of negligence.
While the doctrine of comity requires that foreign judgments be
recognized, it also requires that they be given effect. This requirement may
mandate more than enforcing a foreign money judgment. For example, if
the applicable foreign law dictates that a bilateral divorce decree
terminates a spouse's financial responsibilities to the other, such a decree may
not form the basis of an award of alimony in another forum. 2 Alternatively,
See generally Developments in the Law-Res Judicata, 65 HARv. L. REv. 818 (1952). In
essence, the doctrine of res judicata provides that an existing final judgment is conclusive as
to the parties and those in privity with them of all rights, questions and facts in controversy.
A settled dispute, therefore, is not open to relitigation in the same court or in any other court
of concurrent jurisdiction, provided the judgment was rendered on the merits by a competent
court, without fraud or collusion. E.g., Schroeder v. 171.74 Acres of Land, 318 F.2d 311, 314
(8th Cir. 1963); In re Spinosa's Estate, 117 Cal. App. 2d 364, 255 P.2d 843, 845 (Ct. App.
1953); Israel v. Wood Dolson Co., 1 N.Y. 2d 116, 118, 134 N.E.2d 97, 98, 151 N.Y.S.2d 1, 3
11 Some authors favor recognizing foreign judgments on a theory of international res judicata.
See Ginsburg, Recognition and Enforcement of Foreign Civil Judgments:A Summary View
of the Situationin the United States, 4 INT'L LAW. 720 (1970); Peterson, supranote 4; Reese,
The Status in This Country of Judgments Rendered Abroad, 50 COLUM. L. R'v. 783 (1950);
Smit, InternationalRes Judicataand CollateralEstoppel in the United States, 9 U.C.L.A.
L. REv. 44 (1962). See also RESTATEMENT (SECOND) OF CONFLUCT OF LAWS § 98, Comment b
Although an "international res judicata" approach would place foreign and domestic
judgments on an equal footing, such a theory is not problem-free. See Smit, supra, at 61-62.
1, See generally Peterson, supra note 4, at 305-06.
12Cf. Nowell v. Nowell, 157 Conn. 470, 254 A.2d 889, cert. denied, 396 U.S. 844 (1969);
Gosselin v. Gosselin, 1 Mass App. Ct. 146, 294 N.E.2d 555 (1973) (divorce judgment in one
state cannot be basis for alimony award in another).
13 At present, reciprocity is an element affecting the recognition of foreign judgments. See
Hilton v. Guyot, 159 U.S. 113, 228 (1895). In Hilton, the Supreme Court held that a valid in
rem or quasi-in-rem judgment rendered abroad is entitled to conclusive effect in this country.
Id. at 166-67. The Hilton decision also would give conclusive effect to an in personam
judgment rendered abroad. Such a decree would be considered only prima facie evidence,
however, if rendered by a foreign tribunal not giving conclusive effect to similar judgments
a suit dismissed on a finding of contributory negligence in a jurisdiction
where such negligence defeats a plaintiff's claim may not be relitigated in
a jurisdiction which follows the comparative negligence doctrine. Giving
effect to a foreign judgment based on comity means giving it the same
effect that it would have in the forum in which it was rendered.
If the benefits of granting recognition to foreign judgments based on
comity are to be realized, recognition must not be made to depend upon
reciprocity.' A party seeking recognition of a foreign decree should not be
compelled to establish that, under similar circumstances, the jurisdiction
in which the decree was rendered would recognize a court decision of the
jurisdiction in which recognition is sought. For jurisdictions to make
reciprocity a prerequisite to comity would be highly counterproductive,
because it would interpose a logically unwarranted obstacle to the liberal
recognition of foreign judicial decrees. If the decision of a court of one
country were not recognized by a court of another country for any reason,
each nation thereafter would refuse to recognize judgments of the other's
courts.4 The judicious administration of justice would not be well served
by the retaliation of judicial systems against each other for nonrecognition.
The final settlement of a legal dispute is a boon to all legal systems, and,
therefore, recognition of foreign judgments should not be withheld solely
due to an absence of reciprocity.
The sole justification for a forum's refusal to recognize a foreign
judicial decree would be if its own public policy were offended by granting
recognition." Moreover, this "escape clause" should be reserved for the
rendered by American courts, and, even then, only where the judgment had been rendered
against an alien of the foreign tribunal. Id. at 228.
The reciprocity requirement set forth in Hilton has been criticized for punishing the
individual for the policies of his country, placing a burden on domestic courts to determine
if the rendering tribunal would have enforced a similar judgment rendered by a domestic
court, encouraging retaliation and failing to ensure recognition of American judgments
abroad. See Kulzer, Some Aspects of Enforceabilityof Foreign Judgments:A Comparative
Summary, 16 BUFFALO L. REv. 84, 90-91 (1966); Reese, supra note 10, at 793. It appears that
the reciprocity requirement imposed by Hilton is in general disrepute among the
commentators. See, e.g., R. LEFLAR, AMERICAN CONFLICTs LAW § 74, at 173 (rev. ed. 1968); Golomb,
Recognition of ForeignMoney Judgments:A Goal-OrientedApproach, 43 ST. JOHN's L. REV.
604, 615-17 (1969); Smit, supra note 10, at 49-50.
Despite the criticism of Hilton, the Supreme Court has chosen not to overrule it. See,
e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 411 (1964). The case has been
followed by the federal courts, see, e.g., Kessler v. Armstrong Cork Co., 158 F. 744, 748 (2d
Cir. 1907); Venezuelan Meat Export Co. v. United States, 12 F. Supp. 379, 385 (D. Md. 1935),
and has been cited with approval by many state courts. See, e.g., Northern Aluminum Co.
v. Law, 157 Md. 641, 646, 147 A. 715, 717 (1929); Traders' Trust Co. v. Davidson, 146 Minn.
224, 227, 178 N.W. 735, 736-37 (1920). New York courts have taken the position that the rule
of Hilton is not binding upon them. See Johnston v. Compagnie Generale Transatlantique,
242 N.Y. 381, 152 N.E. 121, 122-23 (1926); Cowans v. Ticonderoga Pulp & Paper Co., 219 App.
Div. 120, 219 N.Y.S. 284 (3d Dep't), affl'd, 246 N.Y. 603, 159 N.E. 669 (1927).
"1 The threat of retaliation resulting from a reciprocity requirement may well be real. See
Nadelmann, Reprisals Against American Judgments?, 65 HARv. L. REv. 1184 (1952).
11Courts have refused to grant a foreign judgment recognition on public policy grounds where
most compelling circumstances:" Frequent refusal to grant comity for
public policy reasons would defeat the purpose of the doctrine and
encourage the development of anarchy in international affairs.
For a forum to refuse to enforce a foreign judgment based on an offense
to its public policy, more must be demonstrated than that the foreign law
merely differs from its own. 7 Otherwise, comity would be an illusion, since
no two legal systems are identical. Public policy is offended only if a foreign
judgment does violence to a jurisdiction's fundamental moral notions of
what is decent and just. 8 Only where recognition would shock the
conscience of the forum in which enforcement is sought and shake the underlying
basis of its public order can nonrecognition be justified on public policy
grounds. It is clear, for example, that no forum need give effect to a foreign
decree which it considers to be cruel and physically painful. Enforcement
of a foreign judgment also may be denied for public policy reasons where
no jurisdictional nexus exists between the parties to a judgment, or the
cause of action itself, and the forum in which it was rendered, but only if
the jurisdictional insufficiency is so great as to shock the conscience of the
forum in which the enforcement is sought. Thus, for example, a
jurisdiction might withhold recognition to a mail order divorce decree" or a
judgment procured without giving the defendant notice and opportunity to be
The burden of proving that a foreign judgment is offensive to public
policy should fall heavily on the party arguing it."' The clearest, most
a defendant was given inadequate notice and no reasonable opportunity to defend. See, e.g.,
Boivin v. Talcott, 102 F. Supp. 979 (N.D. Ohio 1951); In re Estate of Paramythiotis, 15 Misc.
2d 133, 181 N.Y.S.2d 590 (Sur. Ct. N.Y. County 1958); Banco Minero v. Ross, 106 Tex. 522,
172 S.W. 711 (1915). Lack of jurisdiction also has served as a basis for denying recognition.
See, e.g., Ryder v. Ryder, 2 Cal. App. 2d 426, 37 P.2d 1069 (Ct. App. 1934); Davidson & Co.
v. Allen, 89 Nev. 126, 508 P.2d 6 (1973). Finally, judgments have been denied recognition
when procured by fraud. See, e.g., Tamimi v. Tamimi, 38 App. Div. 2d 197, 328 N.Y.S.2d
477 (2d Dep't 1972). See generally von Mehren & Patterson, Recognition and Enforcement
of Fore'gn-CountryJudgmentsin the United States, 6 LAw & POL'Y INT'L Bus. 37, 61 (1974).
"a See Paulsen & Sovern, "PublicPolicy" in the Conflict of Laws, 56 COLUm. L. REv. 969,
1015-16 (1956). Where public policy is utilized as a choice of law principle, it often serves to
exclude foreign law and not to protect the forum or its citizens. See Holder, Public Policy
and National Preferences: The Exclusion of Foreign Law in English PrivateInternational
Law, 17 INT'L & COMP. L.Q. 926, 949-51 (1968).
See generally Compania Mexicana Redio di fusora Franteriza v. Spann, 41 F. Supp. 907,
909 (N.D. Tex. 1941), aff'd, 131 F.2d 609 (5th Cir. 1942); Neporany v. Kir, 5 App. Div. 2d
438, 439, 173 N.Y.S.2d 146, 147-48 (1st Dep't 1958); RESTATEMENT (SECOND) OF CONFLICr OF
LAWS § 117, Comment c (1971).
" See SNR Holdings, Inc. v. Ataka America, Inc., 54 App. Div. 2d 406, 408, 388 N.Y.S.2d
909, 911 (1st Dep't 1976); von Mehren & Patterson, supra note 15, at 61.
" See, e.g., In re Chong Jah Alix, 252 F. Supp. 313 (D. Hawaii 1965); Ryder v. Ryder, 2 Cal.
App. 2d 426, 37 P.2d 1069 (Ct. App. 1934); Bergeron v. Bergeron, 287 Mass. 524, 192 N.E. 86
(1934). See also note 17 supra.
20 See note 16 supra.
" In re Malaszenko, 204 F. Supp. 744 (D.N.J. 1962); 164 East Seventy-Second St. Corp. v.
Ismay, 65 Cal. App. 2d 574, 151 P.2d 29 (Ct. App. 1944).
convincing evidence of the alleged offense should be required before
recognition is denied. With greater international contact between judicial
systems and wider study of comparative law internationally, jurisprudential
concepts of fairness and justice should become more alike, and the
occasions upon which public policy grounds will be employed to deny
recognition of foreign decrees will be encountered ever more infrequently.
The implementation of comity imposes a two-fold burden on all
jurisdictions. Initially, courts must refrain from reexamining the merits of
foreign judgments. A second burden falls upon each court in its capacity as
an original forum: cognizant that a decree may require enforcement in
another forum, every lawmaker and judge should endeavor not to take
actions which will offend other legal systems' basic public policies.
In an intimately interconnected international community, the
doctrine of comity is linked closely with the effective and efficient
administration of justice. Only when comity is granted liberally, a task to which every
judicial system must be dedicated, can contempt for judicial order be
extinguished. While international political differences always will serve as
a potential source of division, a universal respect for judicial decisions and
the rule of law can bring people together.