Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts

Journal of Private International Law, Volume 12, Issue 2, August 2016.

TLI Think! Paper 11/2016

King's College London Law School Research Paper No. 2016-14

41 Pages Posted: 26 Feb 2016 Last revised: 31 Mar 2016

See all articles by Thomas Schultz

Thomas Schultz

King's College London – The Dickson Poon School of Law; Graduate Institute of International and Development Studies

Jason Mitchenson

Graduate Institute of International and Development Studies; University of Geneva, Faculty of Law

Date Written: February 25, 2016

Abstract

Academically, the principle of comity is all but dead. Not only is there a distinct lack of literature regarding the principle, but in circumstances where it is addressed it is considered to be of negligible importance for the resolution of modern private international law disputes. However, a review of Australian case law demonstrates that there is a significant disjunct between the academic view of comity and its actual use in judicial practice. In the last ten years, over 850 Australian court decisions have made reference to comity – many of which relate to the field of private international law. In this article, the authors review 77 Australian cases where comity played a definitive role in the resolution of private international law issues. These cases demonstrate that comity is a relevant, useful legal tool to guide the development and application of private international law rules – doing so in a manner that helpfully mediates between the political need to uphold the doctrine of sovereignty and the commercial and judicial need to permit law to act transnationally in order to accommodate international commerce. This is the purpose for which comity was created almost 400 years ago and the examined case law demonstrates that it continues to be effective in reflecting these interests in the law.

Note: Please note that this is an author's original, preliminary, manuscript. When citing, please refer to the final version of the publisher.

Keywords: Comity, private international law, transnational law, territoriality

JEL Classification: K10, K20, K33, K41

Suggested Citation

Schultz, Thomas and Mitchenson, Jason, Navigating Sovereignty and Transnational Commercial Law: The Use of Comity by Australian Courts (February 25, 2016). Journal of Private International Law, Volume 12, Issue 2, August 2016.; TLI Think! Paper 11/2016; King's College London Law School Research Paper No. 2016-14. Available at SSRN: https://ssrn.com/abstract=2737838

Thomas Schultz (Contact Author)

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

Graduate Institute of International and Development Studies ( email )

Geneva
Switzerland

Jason Mitchenson

Graduate Institute of International and Development Studies ( email )

PO Box 136
Geneva, CH-1211
Switzerland

University of Geneva, Faculty of Law ( email )

Switzerland

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