The Doctrine of Comity in the Age of Globalization: Between International Child Abduction and Cross-Border Insolvency
78 Pages Posted: 19 Jun 2015
Date Written: June 17, 2015
Comity has long been recognized as a fundamental principle in private international law. Even where private international law rules are enacted in international instruments, courts may still use the doctrine of comity in interpreting these instruments and exercising discretion under them. This approach may seem even more justifiable in the global era, when there is ever growing inter-dependence between states. However, this article challenges this assumption and urges caution when using comity as a tool to inform interpretation and application of international instruments.
In order to test the proper scope of comity in the global era, the article develops a theoretical framework for analysis, which is rooted in the original basis of that doctrine and which distinguishes between two types of sovereign interests of states: comity interests and substantive interests. Making use of governmental interest analysis techniques, this framework facilitates evaluation of whether deferring to a foreign state in any given situation actually promotes the relevant sovereign interests of the two states involved.
This framework is then used to analyze the use of comity by courts in cases applying the Hague Convention on the Civil Aspects of International Child Abduction [the Abduction Convention]. Mostly, the doctrine is relied on by courts to justify ordering return of the child. In particular, comity has been invoked to support (1) narrow interpretation of the exceptions to mandatory return; (2) exercise of the discretion to return the child, even though one of the exceptions is established; (3) return of the child without assessing whether he can be adequately protected in the country to which he is returned [the requesting State] and (4) refusal to make return conditional on assurances or action on the part of foreign authorities. In contrast and paradoxically, US courts have refused to extend comity to non-return orders of other Contracting States.
The analysis of the interests of the states involved reveals inter alia that the twin assumptions, which seem to underpin the reference to comity in these cases, that the requesting State always has a strong interest in return of the child and that the interest of the forum State is to order return are misconceived. Indeed, one or both states may in fact have real countervailing interests and in particular an interest in protecting the child. Moreover, courts' refusal to grant comity to non-return orders of other Contracting States may well not in fact promote the sovereign interests of either state, apart from in truly exceptional cases.
In order to broaden the discussion, use of the doctrine of comity in US decisions under Chapter 15 of the Bankruptcy Code, which implements the UNICTRAL Model Law on Cross-Border Insolvency, is also analyzed briefly. The latter instrument was chosen inter alia because of similarities between its structure and objectives and those of the Abduction Convention. A comparison of the methodology adopted in the Model Law cases with that in Abduction Convention cases highlights the need to interpret provisions of international instruments in the light of the policies that inform those provisions and to examine carefully the relevant comity and substantive interests of the two states involved.
While most of the discussion in this article is of specific relevance to the use of comity in interpreting international treaties, the theoretical framework which is developed for giving weight to states' comity and substantive interests, together with the insights which can be gained from the analysis of the use of comity in Abduction Convention and Model Law cases, has wider implications for the use of comity in other contexts. In particular, the discussion sheds light on the need to circumscribe reliance on the doctrine to situations where its use is consistent with the sovereign interests of the two states involved or represents an appropriate balance between the competing interests of these states.
Keywords: private intenrational law, comity, child abduction, Hague Convention, cross-border insolvency
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