The Application Of International Comity In American Transnational Discovery

The development of the principle of international comity is an important contribution of American conflict law theory to private international law,focusing on the dual connotation of restricting the exercise of domestic power and recognizing the validity of foreign acts,the application of international comity in America has been extended to many specific fields,such as the exercise of jurisdiction,the recognition and enforcement of judgments,and the choice of rules of transnational discovery,from its original field of applicable law.Among these fields,the question of transnational discovery deserves much more comity concern,for that the conflict between the United States and those continental law countries is significant,and some common law countries,such as the United Kingdom,Canada,Australia and so on,have enacted blocking statutes against the extensive American unilateral discovery abroad practice,with the purpose of protecting specific interests at home.There is a long history that the United States courts have invoked international comity in transnational discovery,while the true application of comity is changeable with the flowing of time,which has gone through the situation of absence,positive and negative.Initially,the United States courts pointed out that international comity is important,and it should be valued and determined by three part tests,which include personal jurisdiction over a foreign party,a finding that the party had control over the evidence,and the balance of interests.However,in practice,false analysis of interest balancing had been conducted,and the standards of jurisdiction came to be lower,apart from being simply referred,international comity is of no use in restraining transnational discovery order from American courts.About thirty years later,such false deference translated into true deference.Cases rejected discovery under federal rule sprang,and comity analysis based on interests balance requirement was proposed,whose prerequisites are the existence of personal jurisdiction and the true conflict of law.Following the priorities of discovery petitioner's interests,American interests,foreign country's interests and the requested party's interests,comity analysis asks the courts to consider:(1)the importance of the evidence requested to the litigation;(2)the degree of specificity of the request;(3)whether the information originated in the United States;(4)the availability of alternative means of obtaining evidence;(5)the extent to which noncompliance with the request would undermine important interests of the United States,or compliance with the request would undermine theimportant interests of the state where the information is located;(6)hardship of compliance on the requested party;(7)good faith of the party resisting discovery.Unfortunately,such positive emphasis on international comity was a flash in the pan,the courts soon quit the substantial spirit of comity analysis,inherited the surface form of comity analysis,though.Moreover,the current jurisprudence highlight the importance of the fifth consideration in comity analysis,enumerating the general important interests of the United States in litigation,and categorizing the specific important interests of the United States according to the kinds of substantive dispute,while strictly evaluating the specific interests of the foreign country according to the requested party's defensive opinion and the foreign government's proactive statement.Therefore,the comity analysis generally in favor of applying American law at present,due to the negative attitude held by the United States courts toward international comity in transnational discovery disputes.With regard to the current comity analysis practice of the United States courts,it is easy to find that there is an obvious preference to protect American's interests,by comparing the different evaluation between American's interests and foreign country's interests.Although such preference coincides with the America First policy which arises from the trade protectionism,the courts should play the role of neutral in adjudicating transnational disputes to comply with the inherent requirements of international comity,and to achieve consistency in the outside and the inside of comity analysis.Firstly,those seven consideration factors can be rearranged according to the priority of the parties' interests,the foreign country's interests and the forum state's interests.Secondly,it is inappropriate to list forum state's interests generally or categorically,that is to say,a more individualized analysis of forum state's interests should be conducted within specific case facts.Thirdly,international comity dislike a court who sit at home but judge foreign law,let alone who judge foreign sovereign interests,as a result,the courts could wisely invite foreign government to make clarification of their own law or their own interests,if the aforementioned judgement is unavoidable.