Brief of Amici Curiae Professors William S. Dodge and Maggie Gardner in Support of Plaintiffs, Petersen Energia Inversora, S.A.U. v. Argentine Republic

Abstract

This amicus brief was submitted to the Second Circuit Court of Appeals in Petersen Energia Inversora, S.A.U. v. Argentine Republic. The brief argues that the Second Circuit should not adopt a doctrine of foreign-policy abstention based on international comity as urged by the defendants. First, the brief notes that foreign-policy abstention is not a traditional comity doctrine, having been adopted for the first time in 2004. Only the Ninth Circuit currently employs foreign-policy abstention. Second, the brief argues that foreign-policy abstention conflicts with Supreme Court precedent and is unworkable. The Supreme Court has repeatedly emphasized the federal courts’ “virtually unflagging” obligation to exercise jurisdiction. The Court has also refused to make other comity doctrines turn on the views of foreign governments or of the United States. Third, the brief argues that adopting a new doctrine of foreign-policy abstention is unnecessary because existing doctrines of international comity, such as the doctrine of forum non conveniens, already permit courts to dismiss cases with too little connection to the United States.

Keywords: Comity, Abstention, Mujica, Extraterritoriality