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Jurisdiction in International Law, 2nd Edition by Ryngaert, Cedric (1st April 2015)

5 A Reasonable Exercise of Jurisdiction

From: Jurisdiction in International Law (2nd Edition)

Cedric Ryngaert

Subject(s):
Statehood, jurisdiction of states, organs of states — Comity — Permanent Court of International Justice (PCIJ) — International Court of Justice (ICJ) — Proportionality and immediacy — Customary international law

This chapter first discusses how courts and regulators can rely on the principle of international comity to restrain assertions of jurisdiction. In its jurisdictional version, this principle limits the reach of a State’s laws by requiring that States (and their courts and regulators) recognize the laws of States with a stronger link with the case, and thus, that States with a weaker link with the case do not apply their own laws. Comity is, however, essentially a discretionary concept, and not a binding norm of customary international law. Attempts have been made to elevate comity to an international law status. This has most notably occurred in § 403 of the US Restatement (Third) of Foreign Relations Law, which proposes a rule of reason which States have to abide by, not as a matter of comity, but as a matter of international law. The actual customary international law status of the jurisdictional rule of reason is nevertheless in serious doubt, particularly in Europe where a standard of reasonableness, and its attendant requirement of balancing interests, may run counter to basic tenets of the continental system of judicial jurisdiction and private international law.

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