Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings
80 Pages Posted: 8 Apr 2010
Date Written: 2006
The treatment of international parallel proceedings remains one of the most unsettled areas of the law of federal jurisdiction in the United States. There is no consensus in the U.S. federal courts as to the appropriate legal framework for addressing cases involving truly parallel, concurrent proceedings in the courts of a foreign country. This is true whether the U.S. court is asked to issue an anti-suit injunction or asked to stay or dismiss its own proceedings in deference to the pending foreign action. Given that the Supreme Court has never spoken to the appropriate framework to be employed in parallel proceedings cases involving the courts of foreign countries, it may be unsurprising that the federal courts are divided in their approaches. What is surprising, however, is that while the academic literature has paid considerable attention to the problem of anti-suit injunctions in international cases (i.e., cases in which a party asks a foreign court to enjoin a parallel proceeding in a U.S. court), scant attention as been paid to the alternative course available to a domestic court: the stay or dismissal of its own proceedings. Instead, the majority of the articles that have been written on the topic have merely chronicled the divergent approaches taken by federal courts in the stay/dismissal context; there has been almost no effort in these articles to propose a constitutional framework to allow the federal courts to deal with these cases.
This article seeks to begin a debate on the appropriate constitutional framework for U.S. courts faced with the question of whether to decline the exercise of their jurisdiction in international, parallel proceedings cases. Specifically, this article proposes a judicial approach rooted in and based on historic common law principles of adjudicatory comity. Principles of comity empower the federal courts, as a matter inherent to their judicial function, to exercise discretion with respect to their jurisdiction in cases of international parallel proceedings. Moreover, in exercising this comity-based discretion, the courts are not bound by the Supreme Court’s domestic abstention jurisprudence and its attendant federalism concerns, but instead are empowered to craft rules based upon the fundamental concerns both addressed by principles of comity and raised in international cases. And, as this article demonstrates, historically the courts have been able to craft sensible and workable rules for translating the theoretical concept of comity into practice in the context of federal jurisdiction.
Keywords: parallel proceedings, us constitutional law, conflicts of law, comity, lis alibi pendens, forum non conveniens
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