Comity, first referred to as comitas gentium by Ulrich Huber in the 17th Century, literally translates to courtesy of people. It provides, in fact with an intellectual and legal justification, the recognition of a foreign law by a sovereign state without weakening the sovereignty of the forum. However, over the centuries, with legal traditions, contemporary issues and philosophical positions, the doctrine of comity has evolved, and the aim of this essay will be to expose not only the historic, intellectual and legal roots of the concept, but also to retrace its transformation into today's comity. When broaching the issue of comity, of its definition and above all, of its analysis, the first step would be to situate this concept in a broader field. Here, we meet the first difficulty in answering the question of what comity is. Indeed, scholars have long argued, and up to this day have not agreed on a common trend, whether comity belongs to private international law or public international law. At this point, it is therefore necessary to give a brief definition of both fields, and the one provided by Harold G. Maier seems concise and appropriate. As he states, private international law regulates the interactions of individuals in an international dimension, whereas Public international law regulates the activities and relations between nation-states.
[...] According to Lord Mansfield's reading of Ulrich Huber, the discretionary and voluntary aspect of comity remained essential; What is more, he added the idea that a court could under any circumstances be obliged to apply any law or policy that it would consider contrary to the fundamental public policy of the forum state. This notion becomes extremely relevant when it comes to the difficult case of slavery, which could never be applied by an English court. The last scholar that Joel R. [...]
[...] Here we meet the first difficulty in answering the question of what comity is. Indeed, scholars have long argued, and up to this day have not agreed on a common trend, whether comity belongs to private international law or public international law. At this point, it is therefore necessary to give a brief definition of both fields, and the one provided by Harold G. Maier seems concise and appropriate. As he states[2], Private international law regulates the interactions of individuals in an international dimension, whereas Public international law regulates the activities and relations between nation-states. [...]
[...] His theory was therefore both international and domestic and appears as an alternative to statutism. The work of Ulrich Huber on comity is based on three principles that he develops in De Conflict Legum and which were later also used by its intellectual offspring. These principles are as follows: first, states are sovereign and are empowered over their territory only; then, the state has power over any person in its territory; and finally, when a state decides to apply the law of a foreign state, it does not act out of obligation but out of comity, in other words, of “courtesy” (comitas gentium). [...]
[...] There has been an evolution from a purely discretionary gesture on the part of the court of the forum state to an obligation which is imperfect insofar as it is not entirely legally binding. He therefore seeks to find an explanation for the shocking incoherence of the doctrine as defined by the Hilton v. Guyot decision that comity is at the same time legally compelled and discretionary. For him, a possible explanation could be that comity is actually used both as a conflict of laws rule and as a rationale for applying foreign laws, which could be a reason for this contradictory duality. [...]
[...] A doctrine of local restraint However, comity is not only a useful tool of diplomatic relations; it is also a means of locally restraining the application of the sovereign power to foreign citizens or event, and in that way, it imposes a barrier on the sovereign power, preventing it from interfering[10]. This limiting aspect can also concern the barrier that comity builds between private transactions and public regulations, protecting the former from the latter. The courts would then make a decision based on the will to preserve economic interests, as it happened in the three cases mentioned by Joel R. Paul as representative of this trend of use of the comity doctrine[11]. Indeed, in all three cases In re Union Carbide, Mitsubishi Motors Corp. [...]
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