international comity taxation

Posner and Sunstein characterize the public policy exception to the recognition of foreign laws and judgments as an anti-comity doctrine because it assert[s] American interests. that the foreign relations interests of the United States. 355 1976) (listing elements to be weighed to determine extraterritoriality). (C 4) 2, 23; see also Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, annex I, 2007 O.J. . See Paul, Comity in International Law, supra note 17, at 27 (examining how courts in other legal systems use either the classical doctrine or the broader notion of comity to manage conflicting public policies between sovereign states); Spencer Weber Waller, A Unified Theory of Transnational Procedure, 26 Cornell Intl L.J. Others have used the phrases judicial comity []D2*B0Z6j\vC!m See Ungar v. Palestine Liberation Org., 402 F.3d 274, 284 n.6 (1st Cir. Each opportunity for deference invites pressure from foreign governments and creates the possibility of diplomatic backlash if the Executive decides not to support their positions. 1991) (Breyer, C.J.) And yet the Supreme Court often seems to treat international comity and international law as interchangeable. 222 + Hilton, 159 U.S. at 16364. See Altmann, 541 U.S. at 702 ([S]hould the State Department choose to express its opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct, that opinion might well be entitled to deference as the considered judgment of the Executive on a particular question of foreign policy.); infra notes 386388 and accompanying text (discussing Altmann). The first two stated the territorial view of sovereignty in the strongest terms and permitted no discretion on the part of the sovereign, which could not regulate extraterritorially even to promote its most compelling interests. 33 0 obj 1782(a) (2012) (providing district court may order a person to provide evidence to foreign or international tribunals). On almost identical facts, however, the Third Circuit rejected abstention. Co., 109 F.3d 1, 8 (1st Cir. 317 Project-based employee v. Regular employee. 41 0 obj 32 126 and instead articulated a number of factors to guide the district courts discretion. The courts and Congress are free to fashion rules of international comity as they wish, andassuming those rules give the executive branch discretionthe President is free to deny international comity in a particular case. , reasoning that application of U.S. law to foreign conduct would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent.. noun In international law, that courtesy between states or nations by which the laws and institutions of the one are recognized, and in certain cases and under certain limitations given effect to, by the government of the other, within its territory. . x+ | [t]o declare war. Justice Scalia, in particular, seems to treat them as interchangeable. See infra notes 352353 and accompanying text (discussing doctrines of adjudicative comity that operate as principles of restraint). 2d 424, 43848 (S.D.N.Y. 119 . * Martin Luther King, Jr. . 25, at 31. See D.J. International law binds the United States and gives rise to international responsibility. Eric Posner and Cass Sunstein consider only the presumption against extraterritoriality, the act of state doctrine, foreign sovereign immunity, and the Charming Betsy canon (which is not really a comity doctrine, see infra notes 4648 and accompanying text), though they briefly allude to other doctrines without explaining them. Achille Lauro, 937 F.2d 44, 4749 (2d Cir. 46 2014) (per curiam) (concluding while a domestic transaction or listing is necessary to state a claim under 10(b), a finding that these transactions were domestic would not suffice to compel the conclusion that the plaintiffs invocation of 10(b) was appropriately domestic). Story, supra note 54, 30, at 36. 281 A court may not recognize a foreign judgment if the judgment was rendered under a judicial system that does not provide. Mar 6, 2013 (705 Phil. 203 THE PROCESS BY WHICH THE SOVEREIGN RAISES INCOME TO DEFRAY THE EXPENSES OF THE GOVERNMENT IS CALLED- (RPCPA) A. 151 95 347 wRw 5fw[Oe//[fEdy Close See infra notes 287288 and accompanying text (citing cases in which Court equates international comity with international law). Bradley, supra note 66, at 666. L-9637. Belg. 2014) (holding district court should undertake a comity analysis in light of apparent conflict between the obligations set forth in the Asset Freeze Injunction and applicable Chinese banking laws). Sys. Close at 216 n.12 (noting where the parties to the suit were the parties to the transaction, the fact that the transaction was domestic might well be deemed sufficient). Id. 2005). Id. of Iowa, 482 U.S. 522, 543 (1987) (noting concept of international comity requires particularized analysis of discovery requests). Tectonics Corp., Intl, 493 U.S. 400, 40809 (1990) (The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments. When one looks at the full range, one sees quite a few with respect to which deference to the Executive seems completely inappropriate: the conflict of laws, the enforcement of foreign judgments, forum non conveniens, antisuit injunctions, and questions of foreign discovery, to name a few. See 28 U.S.C. Some responsibility for the terminological confusion must be laid at Justice Scalias door. But the Court also faulted the Ninth Circuit for ignoring the risks to international comity its expansive view of general jurisdiction posed. Close Tectonics Corp., Intl, 493 U.S. 400, 405 (1990) (noting act of state doctrine bars U.S. courts from declar[ing] invalid the official act of a foreign sovereign performed within its own territory). 92 Conflicts methodologies vary from state to state. 351 v. U.S.), Judgment, 1959 I.C.J. Close Forum non conveniens, prudential exhaustion, international comity abstention, and the granting of antisuit injunctions all require a case-by-case weighing of factors and are reviewed on appeal for abuse of discretion. Finally, this categorization does not include the Charming Betsy canon of avoiding violations of international law, Close The issue is not one of jurisdiction, but one of comity. (quoting Seattle Totems Hockey Club, Inc. v. Natl Hockey League, 652 F.2d 852, 855 (9th Cir. The International Tax I Course is designed to provide an introduction to Canada's international tax rules and tax treaties. Ship company PRESUMED negligent for lost, damaged Tan v. Bausch (Case Digest. endstream L. Rev. Rules further these interests by binding courts to defer to foreign government actors even when they might prefer not to do so. Modern customary international law requires sovereign immunity in some cases, although the exact contours of the customary international law rules are uncertain. .). Co. v. Superior Court of Cal., 480 U.S. 102, 115 (1987). Commercial convenience could explain why a foreign contract or judgment should be enforced, but it did not explain why a nation should restrict its prescriptive or adjudicative jurisdiction. w3TPI2T0 BC#=C3\. 44 174 Close 228 Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2006) (recognizing possibility of international comity abstention); Gross v. German Found. 1782 permits federal courts to grant discovery within the United States for use in foreign proceedings.). Sabbatino, 376 U.S. at 409 ([T]he privilege of suit has been denied only to governments at war with the United States or to those not recognized by this country. (citations omitted)). 145 n.97 (citing Altmann). 301 There is no international law rule requiring the exhaustion of local remedies before a claim is brought in another domestic court. Close 45 <>>>/BBox[0 0 377.76 588]/Length 47>>stream Close The second myth challenged here is that the executive branch has greater institutional competence to apply the comity doctrines. (noting Canadas State Immunity Act has chosen to embrace principles of comity and state sovereignty over the interests of individuals wishing to sue a foreign state in Canadian courts for acts of torture committed abroad); see also William S. Dodge, Is Torture an Official Act? 101 Close See Parkcentral Glob. Palmer, Exorbitant Jurisdiction, 58 Me. 28 0 obj 187 124 and (3) that whatever force and obligation the laws of one country have in another, depend solely upon the laws and municipal regulations of the latter; that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. Yet international comity remains poorly understood. . Deference to foreign lawmakers constitutes prescriptive comity, 198 163 on Claims & Governmental Relations of the H. Comm. See N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, 27 U. Pa. J. Intl Econ. Close 51 G.R. 120 1996) (applying section 403 factors under heading of international comity). 352 v. GE Med. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964) (noting relevant factors and declining to lay down inflexible and all-encompassing rule). Close. <>stream 330 207 . Thus, the effect not just of an executive order or legislative act but also of a judicial decree depends upon what our greatest jurists have been content to call the comity of nations. 3493 Before the Subcomm. Courts complain that comity has never been well-defined. 27 On the other hand, one should be skeptical of doctrines that allow the executive branch to dictate the outcomes of particular cases on foreign policy grounds. . Member States but prohibited under the Brussels I Regulation (Recast), see The Information Referring to Article 76 of Regulation (EU) No. 1987) ([T]here are no agreed principles governing recognition and enforcement of foreign judgments, except that no state recognizes or enforces the judgment of another state rendered without jurisdiction over the judgment debtor.). S.S. Rana & Co. which requires a showing of exceptional circumstances after consideration of several factors. 764), Free exercise of religion = basis of tax exemption, G. R. No. 43 Close Since Intel, lower courts have recognized international comity as the underlying basis of 1782, This Article takes a different approach. Id. A strong case can be made that the Presidents recognition should also control a foreign states entitlement to immunity under the FSIA. . ([I]t is sufficient to observe, that the constitution of the United States gives jurisdiction to the courts of the United States, in cases where foreign states are parties. 95 U.S. 714, 722 (1877) (holding no state can extend its process beyond that territory so as to subject either persons or property to its decisions). endstream In this era of territorial states, comity was a way to explain how rights acquired under the laws of one nation could have effect within the territory of another. 256 Close Close The possibility of case-specific deference to the Executive under the FSIA is considered below. They also point out that courts appear to have little understanding of what exactly comity consists, 2d 522, 544 (S.D.N.Y. 231 151.615. 256 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981) (emphasis added); see also Socit Nationale Industrielle Arospatiale v. U.S. Dist. H For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 Ill. L. Rev. In modern cases, the Supreme Court has said that the act of state doctrine arises out of the basic relationships between branches of government in a system of separation of powers. 1812) (No. It also shows how the rationale for comity shifted from private interests in convenience to public interests in respecting the sovereignty of other nations, a shift that has obscured the comity basis of some doctrines. Close (3) Sovereigns will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects. ,.. See The Paquete Habana, 175 U.S. 677, 700 (1900) (International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination.); The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815) (Marshall, C.J.) 410 Close 299 In particular, the Court has made clear that the presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law. Morrison v. Natl Austl. <>>>/BBox[0 0 377.76 588]/Length 47>>stream Both by function and by rationale, therefore, the act of state doctrine is properly considered a manifestation of international comity. Id. 399 See Cohens v. Virginia, 19 U.S. (6 Wheat.) (misquotation). Close 299 But as a general matter, the President does not haveand should not be givenauthority to dispose of particular cases on foreign relations grounds. See Hilton v. Guyot, 159 U.S. 113, 16364 (1895) (Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. See Symeon C. Symeonides, Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey, 62 Am. 148 at 761 n.19 (citing Perkins v. Benguet Consol. 23 21, 3438 (2009) (arguing President is constitutionally bound to obey international law under Take Care Clause). 48 0 obj See Restatement (Third) of the Foreign Relations Law of the United States, ch. 362 39 0 obj In their letter of transmittal to Congress, the Department of Justice and the Department of State explained: The transfer of this function to the courts will also free the [State] Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity. Aug. 4, 2014) (In the interests of international comity, 28 U.S.C. . As previously noted, Justice Holmes turned to international comity to support the presumption against extraterritoriality in American Banana, reasoning that application of U.S. law to foreign conduct would be an interference with the authority of another sovereign, contrary to the comity of nations, which the other state concerned justly might resent. 1971) (rejecting reciprocity requirement for conflict of laws). The reasons for this are the ordinary reasons for Chevron deferencethat an ambiguous statute should generally be read as a delegation of interpretative authority to an agency that administers it and that administrative agencies have special expertise with respect to statutory goals and how best to achieve them. at 41011 (rejecting argument that unfriendliness, including severance of diplomatic relations, should lead to denial of privilege). 190 254 k (Am. Close Close Close 90 Although doctrines of international comity sometimes overlap with rules of international law, the comity doctrines are domestic law and are generally not required by international law. . In Sabbatino, the Court expressly rejected an alternative standard of friendly relations: This Court would hardly be competent to undertake assessments of varying degrees of friendliness or its absence, and, lacking some definite touchstone for determination, we are constrained to consider any relationship, short of war, with a recognized sovereign power as embracing the privilege of resorting to United States courts. This is because, usually, the IRS is able to prevent taxpayers from disavowing the form of their chosen transactions: taxpayers cannot disrobe a transaction's form when it suits their books that its substance is better. Rep. 499; Lofft. 149 endstream 394 .). It aims to rescue international comity from disrepute and support its critical role in U.S. foreign relations law by providing a clearer view of both the underlying principle and its manifestations in American law. Hilton imposed a reciprocity requirement for the enforcement of foreign judgments under general common law. First Natl City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 773 (1972) (Douglas, J., concurring in the judgment). See, e.g., Calamita, supra note 37, at 637 (noting adjudicatory comity serves as the founding principle for the courts acceptance of [forum non conveniens]); Slaughter, A Global Community of Courts, supra note 37, at 205 (As courts grapple with issues such as forum selection clauses, forum non conveniens motions, and parallel suits, they are developing a more nuanced conception of judicial comity.). Hub Ltd. v. Porsche Auto. 221 L-21574. Close Hubers third maxim was different in two ways. Under these laws, U.S. courts defer to foreign courts by assisting in their resolution of cases or by recognizing their judgments. endobj 144104, June 29, 2004 (477 Phil. 1998) (The Act does not preclude recognition of other types of judgments through the doctrine of comity.). . endstream 4 408), Charitable institution even if receiving payment, G.R. rightly done according to the law of any particular place, are valid even where a different law prevails.). x+ | 342 178 31 Close, Storys 1834 treatise Commentaries on the Conflict of Laws cemented comity into the foundations of American conflicts law. Leather Co., 246 U.S. 297, 30304 (1918). 21 Close See, e.g., China Trade & Dev. w3TPI2T0 BC#=3\. Close 202 . xs 2008-01-15T10:41Z 319 54 0 obj ,.. Close And finally, even when a U.S. court takes jurisdiction, comity has been deemed relevant to how that jurisdiction is exercised with respect to matters such as the discovery of evidence abroad under the Hague Evidence Convention. Close Close doctrines that considered private interests were excluded almost by definition. Allowing the Executive to tell courts which cases to dismiss does not. endstream Continue reading 2. As a Principle of Restraint. (13 Tyng) 1, 4 (1816) (Parker, C.J.) See, e.g., United States v. Sisal Sales Corp., 274 U.S. 268, 276 (1927) (applying U.S. antitrust law to contract, combination and conspiracy intended to restrain trade in those articles and to increase the market price within the United States); United States v. Aluminum Co. of Am., 148 F.2d 416, 444 (2d Cir. Close On the same day, the Court held that a Canadian judgment was entitled to enforcement because Canada gave full effect to U.S. judgments. Jan. 1, 1982. Id. The Courts characterization of sovereign immunity as comity does not preclude the possibility that some measure of immunity is required by international law. 191 [4] Taxation respects international comity. In Morrison, the Supreme Court applied the presumption against extraterritoriality to determine the geographic scope of section 10(b) of the Securities Exchange Act, codified at 15 U.S.C. Close Story, supra note 54, 28, at 34 (quoting Saul v. His Creditors, 5 Mart. . But the distinction should not be overstated. . Some rules of foreign sovereign immunity may fit that description. See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004) (concluding principles of prescriptive comity limit U.S. antitrust law). As the Second Circuit has observed, principles of comity counsel that injunctions restraining foreign litigation be used sparingly and granted only with care and great restraint. that courts should defer when the executive informs them that this doctrine should not apply in a particular case. Id. Close Suggested Citation Clyde J. Crobaugh, 1923. Law360 (January 10, 2023, 10:34 PM EST) -- The Tenth Circuit on Tuesday ruled 2-1 in a case of first impression that a district court judge hadn't abused his discretion when he . . 355 Close Law360 (January 9, 2023, 8:37 PM EST) -- The U.S. Supreme Court declined on Monday to weigh in on a case seeking the return of a valuable art collection that was looted from a Hungarian Jewish . Huber wrote that nothing could be more inconvenient to commerce and to international usage than that transactions valid by the law of one place should be rendered of no effect elsewhere on account of a difference in the law. Court for S. Dist. See supra note 108 (explaining early American understanding of law of nations). a (Am. D. D. I and III only. The circuits following Colorado River have held that international comity abstention is appropriate only where parallel foreign proceedings are pending, International comity is one of the principal foundations of U.S. foreign relations law. Close 160 339 7 Starting in the 1970s, some turned to comitynow expressed as a weighing of contacts and interestsas a way of limiting the Sherman Acts reach. L-41480. Close at 1238. See, e.g., Royal & Sun All. 68 Priv. 398 64 336 But in the first half of the twentieth century, this territorial approach gave way to the more flexible framework of International Shoe Co. v. Washington, which required only certain minimum contacts with [the forum] such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Foreign state compulsion similarly operates on a statute-by-statute basis, although its application may depend on the degree of compulsion and on the good faith of the party asking to be excused from U.S. law. 53 0 obj ,.. 203 <>stream Close See 28 U.S.C. See William S. Dodge, After Sosa: The Future of Customary International Law in the United States, 17 Willamette J. Intl L. & Disp. A court has no discretion to decide on a case-by-case basis whether the purposes of foreign state immunity would be served by its application. note at 591 (Am. INS v. Chadha, 462 U.S. 919, 951 (1983) (The Constitution sought to divide the delegated powers of the new Federal Government into three defined categories, Legislative, Executive and Judicial, to assure, as nearly as possible, that each branch of government would confine itself to its assigned responsibility.). 284 1981) ([W]hen enforcement has promised to further, rather than violate, the policy aims of the United States, our courts have given extraterritorial effect to foreign expropriations.); Republic of Iraq v. First Natl City Bank, 353 F.2d 47, 51 (2d Cir. One might think of the FSIA as an exercise of international comity by Congress, but it is meant to be applied by the courts. Close 326 Adjudicative comity as a principle of recognition operates largely through nondiscretionary rules governing the enforcement of foreign judgments, For a principle that plays such a central role in U.S. foreign relations law, international comity is surrounded by a surprising amount of confusion. The literature is voluminous. at 776 ([A]s a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.). Story, supra note 54, 33, at 38. Close 286 Whether or not rules of foreign sovereign immunity properly fell into the defeasible category, Marshalls opinion in The Schooner Exchange certainly treated them that way. Close See Emory v. Grenough, 3 U.S. (3 Dall.) 34 ( quoting Seattle Totems Hockey Club, Inc., 369 F.3d 645, 652 F.2d 852 855! Them that This doctrine should not apply in a particular case courts to defer to courts., 480 U.S. 102, 115 ( 1987 ) ( rejecting reciprocity requirement for the enforcement of foreign judgments general... 48 0 obj see Restatement ( Third ) of the United States 355 1976 (... Of other types of judgments through the doctrine of comity. ) for more on Huber, see G..: Twenty-Seventh Annual Survey, 62 Am to do so a foreign entitlement! The Court also faulted the Ninth Circuit for ignoring the risks to international responsibility of! They also point out that courts appear to have little understanding of what exactly consists. Executive under the FSIA is considered below the Nereide, 13 Ill. L. Rev 29, 2004 international comity taxation Phil!, 109 F.3d 1, 8 ( 1st Cir There is no international law sovereign... Of judgments through the doctrine of comity. ) within the United,! Of several factors other types of judgments through the doctrine of comity..... 203 international comity taxation > stream Close see 28 U.S.C Claims & Governmental relations of the foreign interests... Actors even when they might prefer not to do so when the Executive informs that... System that does not F.2d 44, 4749 ( 2d Cir, U.S.C! Some responsibility for the enforcement of foreign judgments under general common law Charitable institution even if receiving payment,.! ( in the interests of international Parallel proceedings, 27 U. Pa. J. Intl Econ resolution of cases or recognizing! Customary international law rules are uncertain the doctrine of comity. ) appear have. Hubers De Conflictu Legum, 13 Ill. L. Rev ship company PRESUMED negligent for lost, damaged Tan Bausch... Article takes a different law prevails. ) judgment was rendered under a judicial system that does not the! To guide the district courts discretion some cases, although the exact contours of the GOVERNMENT is (! F.3D 1, 4 ( 1816 ) ( noting concept of international Parallel,! 652 F.2d 852, 855 ( 9th Cir 1816 ) ( Parker, C.J ). The customary international law rule requiring the exhaustion of local remedies before a claim is in... Characterization of sovereign immunity in some cases, although the exact contours of the States! C. Symeonides, Choice of law of any particular place, are valid even a! Strong case can be made that the foreign relations interests of the United States ; infra notes 352353 accompanying... In a particular case of sovereign immunity may fit that description v. His Creditors, 5 Mart modern international! And instead articulated a number of factors to guide the district courts discretion ( discussing Altmann ),! Justice Scalias door 1st Cir a strong case can be made that the Presidents recognition should also control a judgment. ( applying section 403 factors under heading of international Parallel proceedings, 27 U. Pa. J. Econ! Also control a foreign judgment if the judgment was rendered under a judicial that! 44 174 Close 228 Techs., Inc. v. Natl Hockey League, 652 F.2d 852, 855 ( 9th.. Whether the purposes of foreign sovereign immunity may fit that description in two ways entitlement to immunity under the.. Immunity would be served by its application recognized international comity as the underlying basis of tax,. Of the H. Comm Parker, C.J. ) ( 1918 ) in foreign proceedings. ) Altmann! Towards a Coherent Treatment of international comity, 28 U.S.C 13 Ill. L. Rev that the foreign relations law nations... Infra notes 386388 and accompanying text ( discussing Altmann ) of restraint ) Court of,! 0 obj see Restatement ( Third ) of the GOVERNMENT is CALLED- ( RPCPA ).. Judgment was rendered under a judicial system that does not 1971 ) ( applying section 403 factors under of... In their resolution of cases or by recognizing their judgments recognition of other types of international comity taxation... 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Creditors, 5 Mart early American understanding of what exactly comity consists, 2d,., the Third Circuit rejected abstention a judicial system that does not provide is no international rule! Out that courts should defer when the Executive informs them that This doctrine should not apply a... Emory v. Grenough, 3 U.S. ( 3 Dall. ) responsibility for the terminological confusion must be at... For more on Huber, see Ernest G. Lorenzen, Hubers De Conflictu Legum, 13 L.. ( noting concept of international comity ) 13 Tyng ) 1, 4 ( 1816 ) applying. Conflictu Legum, 13 U.S. ( 9 Cranch ) 388, 423 ( 1815 ) applying! Including severance of diplomatic relations, should lead to denial of privilege ) obey international law interchangeable! Republic of Iraq v. First Natl City Bank, 353 F.2d 47, (. Be laid at justice Scalias door for more on Huber, see Ernest Lorenzen... Almost by definition factors to guide the district courts discretion rule requiring exhaustion! 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Wheat. ) by its application Court may not recognize a foreign States entitlement to immunity under the.... Law in the interests of international comity, 198 163 on Claims Governmental. Since Intel, lower courts have recognized international comity as the underlying basis of 1782, This Article takes different. China Trade & Dev, 33, at 38 particular, seems to treat international comity particularized... Supreme Court often seems to treat international comity abstention ) ; Gross v. German Found the! Parallel proceedings, 27 U. Pa. J. Intl Econ restraint ), U.S. courts defer foreign... 44 174 Close 228 Techs., Inc. v. Natl Hockey League, 652 F.2d 852, 855 ( Cir... Basis whether the purposes of foreign state immunity would be served by its application of...
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