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of this action, it was not necessary for us to make any determination whether there had beeen any "substantial violation” within the meaning of the law.

This situation continued until the end of June 1976, a period of approximately six months. At that time, for a variety of reasons. we decided to resume our military assistance and sales programs to Indonesia. The legal basis for ending the suspension included congressional authorization of military assistance for Indonesia (for fiscal years 1976 and 1977) and the defeat of a proposed amendment urging a cut-off of such assistance on account of Indonesian actions in Timor.

Human Rights in East Timor, Hearings before the Subcommittee on International Organizations of the Committee on International Relations of the House of Representatives, 95th Cong., 1st Sess. (June 28-29, 1977), pp. 46–47.

Statutory references are to sec. 505(d) of the Foreign Assistance Act of 1961. which was amended by sec. 201 (a) of the Foreign Assistance Act of 1962, and to sec. 3 of the former Foreign Military Sales Act (now the Arms Export Control Act), which was amended by sec. 45(a)(1) of the Foreign Assistance Act of 1974.

References to applicable agreements between the United States and Indonesia are to the Agreement relating to the sale to Indonesia of military equipment. materials, and services done Aug. 13, 1958 (TIAS 4095; 9 UST 1149; entered into force Aug. 13, 1958); the Agreement relating to the furnishing of military equipment, materials, and services for a program of civic action done Apr. 14. 1967 (TIAS 6247; 18 UST 384; entered into force Apr. 14, 1967); and the Agreement relating to the furnishing of combat equipment to Indonesia as additional military assistance done Aug. 18 and 19, 1970 (TIAS 6959; 21 UST 2140; entered into force Aug. 19, 1970).

For the remainder of Mr. Aldrich's testimony, see ante, Ch. 2, § 1, pp. 10-12.

Chapter 15

PRIVATE INTERNATIONAL LAW

§ 1 Conflict of Laws

Recognition of Judgments

In Sangiovanni Hernandez v. Dominicana de Aviacion, 556 F. 2d 611 (1977), the plaintiff, a minor, individually and by his mother, brought an action in the U.S. District Court for the District of Puerto Rico to recover damages for the death of his father in an aircraft operated by the defendants. The defendants, asserting that the same claim had been brought against the same defendants in the courts of the Dominican Republic and had been compromised and settled in accordance with Dominican law, moved to dismiss the action on the basis of the doctrine of res judicata. The district court denied the motion and refused to give the Dominican proceedings res judicata effect on the grounds that the method followed in the Dominican Republic to protect the plaintiff's interests did not satisfy the standards established under the laws of Puerto Rico and thus violated a strong public policy of Puerto Rico to protect the interest of minors.

The U.S. Court of Appeals, First Circuit, in an opinion issued on November 30, 1977, by Senior Circuit Judge Martin D. Van Oosterhout, found that the procedures followed by the Dominican court to protect the plaintiff were different from those required by Puerto Rican law but that the manner in which the Dominican court approved the settlement in no way violated the public policy of Puerto Rico. The case was reversed and remanded with a direction to dismiss the complaint.

The court of appeals adopted the following text from the district court opinion outlining U.S. practice with respect to the doctrine of res judicata, comity, and judgments contrary to public policy in recognizing foreign judgments:

Unless bound by treaties to the contrary, the courts of no nation are obliged to recognize and respect the judgments of the courts of another nation. Nevertheless, whether motivated by a desire for reciprocal treatment of American judgments abroad or the basic policies behind the doctrine of res judicata, that there must be some

end to litigation, see 1B Moore's Federal Practice Par. 0.405(1), many American courts follow the practice of recognizing foreign judgments unless there are clear reasons not to do so in a particular case. See generally, Reese, "The Status in this Country of Judgments Rendered Abroad," 50 Colum.L. Rev. 783 (1950). In the words of the Court of Appeals for the Third Circuit:

"Comity is a recognition which one nation extends within its own territory to the legislative, executive, or judicial acts of another. It is not a rule of law, but one of practice, convenience. and expediency. . . . Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F. 2d 435, 440 (3d Cir. 1971).

One occasion for rejecting the principle of res judicata in relation to foreign judgments is where recognition of a foreign judgment would be contrary to public policy:

"It is a well-established rule of law that a court will not enforce a foreign judgment, be it of a sister state or foreign nation, if to do so would violate the forum's public policy." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 318 F. Supp. 161, 168 (E.D.Pa. 1970, aff'd 453 F.2d 435, supra.

The court of appeals indicated in part as follows how the judgment of the court of the Dominican Republic did not violate the public policy of Puerto Rico to protect the interest of minors:

The Dominican court sets forth in detail the proceedings of the Family Council resulting in the unanimous approval of the settlement and the opinion of the independent advisory attorneys favoring the settlement. While it is not clear that the court itself conducted yet another independent review of the sort a Puerto Rican court would undertake, we do not think that this difference in method goes to the heart of Puerto Rico's policy. The fundamental concern is that the settlement be evaluated impartiallythat is, considering only the minor's interests, independent of the possibly conflicting interests of his parent or guardian. As the district court observed, the Dominican procedure was certainly more than a "rubber stamp" of the proposed agreement: the settlement was "reviewed and approved by two bodies, one judicial and the other quasi-judicial, charged with protection of the minor plaintiff's interests." Given this elaborate system of review, it seems quite insignificant that the impartial evaluation may not have been made by the court that ultimately approved the settlement. We believe that the public policy of the Dominican Republic to protect the rights of minors is consistent with that of Puerto Rico and that the manner in which the settlement was approved by the Dominican court in no way violated the public policy of Puerto Rico.

556 F.2d 614-615.

Enforcement of Foreign Tax Judgments

In Her Majesty the Queen, Etc. v. Gilbertson, 433 F.Supp. 410 (1977), the U.S. District Court for the District of Oregon held that a foreign government may not enforce a tax judgment in a U.S. court. The Court, in a January 20, 1977, opinion by District Judge James M. Burns, adopted the Recommendation and Order of Magistrate George E. Juba, which dismissed an action brought by Her Majesty the Queen in right of the province of British Columbia seeking to recover a tax judgment of nearly $200,000 previously obtained against Oregon citizens in British Columbia.

The Court reasoned that the legislative and executive branches are better suited than the judiciary to decide which foreign tax judgments should be enforced. In arriving at this conclusion, the Court traced the history of the "revenue rule" from its origins in Lord Mansfield's dictum that "no country ever takes notice of the revenue laws of another" through Judge Learned Hand's analysis of the rule in Moore v. Mitchell, 28 F.2d 997 (D.N.Y. 1928), aff'd, 30 F.2d 600 (2d Cir. 1929), aff'd on other grounds, 281 U.S. 18, 50 S.Ct. 175, 74 L.Ed. 673 (1930). The Court further found that the Supreme Court of Canada in United States of America v. Harden, 41 D.L.R. 2d 721 (1963), would not in a reciprocal situation enforce Oregon tax judgments. The Court described the issue of enforcing a foreign tax judgment as apparently "of first impression" in "American legal history. . . ." Id. 411. Portions of the Recommendation and Order adopted in the Court's opinion follow:

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In Moore, the issue before the court was whether to maintain an action in New York to recover delinquent taxes due in Indiana. The complaint was dismissed. Judge Hand compared the revenue rule to the rule that a foreign state will not enforce the penal laws of another state:

While the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment, which includes liabilities for taxes as well. Even in the case of ordinary municipal liabilities, a court will not recognize those arising in a foreign state, if they run counter to the "settled public policy" of its own. Thus a scrutiny of the liability is necessarily always in reserve, and the possibility that it will be found not to accord with the policy of the domestic state. This is not a troublesome or delicate inquiry when the question arises between private persons, but it takes on quite another face when it concerns the relations between the foreign state and its own citizens or even those who may be temporarily within its borders. To pass upon the provisions for the public order of another state is, or at any rate should be beyond the powers of a court: it involves the relations

between the states themselves, with which courts are incompetent to deal, and which are intrusted to other authorities. It may com mit the domestic state to a position which would seriously embarrass its neighbor. Revenue laws fall within the same reasoning: they affect a state in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper. 30 F.2d at 604 (emphasis added).

Judge Hand's rationalization is no longer applicable to an action involving sister states because such actions are now enforced through the full faith and credit clause. See, Milwaukee County v. M. E. White & Co., 296 U.S. 268, 56 S. Ct. 229, 80 L. Ed. 220 (1935). However, it is still eminently applicable to such actions between nations. Selectively refusing to enforce a specific tax suit for reasons of public policy might well be taken as an affront to the taxing foreign government, even if it were not so intended. This could put the United States in an embarrassing position and upset the sometimes delicate relationship between the United States and other nations. In my opinion, the courts should not make this selection process; thus, it is better to entertain no suits at all. The proper place to make such policy decisions is located elsewhere in the gov ernment through the use of treaties.

Id. 411-412.

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$2

Multilateral Conventions

Form of International Wills

The National Conference of Commissioners on Uniform State Laws approved and recommended at its annual meeting, held from July 29 to August 5, 1977, the enactment in all States of the Convention and Uniform Law on the form of an International Will, adopted on October 26, 1973, by a conference of 48 countries meeting in Washington. The Report adopted by the National Conference recommending the Convention, which is under consideration by the Department of State for submission to the Senate for advice and consent to ratification. includes a brief history of the "international will," a description of the proposal contained in the Convention and the annexed uniform law, and an analysis of the roles for Federal and State law in relation to the international will.

An excerpt from the Report of the National Conference follows:

Prefatory Note
Introduction

The purpose of the Washington Convention of 1973 concerning international wills is to provide testators with a way of making wills that will be valid as to form in all countries joining the Convention. As proposed by the Con

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