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Deference in International Courts and TribunalsStandard of Review and Margin of Appreciation$
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Lukasz Gruszczynski and Wouter Werner

Print publication date: 2014

Print ISBN-13: 9780198716945

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780198716945.001.0001

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Deference and the Use of the Public Policy Exception in International Courts and Tribunals

Deference and the Use of the Public Policy Exception in International Courts and Tribunals

Chapter:
(p.38) 3 Deference and the Use of the Public Policy Exception in International Courts and Tribunals
Source:
Deference in International Courts and Tribunals
Author(s):

Ilona Cheyne

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716945.003.0003

Chapter 3 examines different methodological approaches taken by EU courts, WTO dispute settlement bodies and investment tribunals when dealing with public policy exceptions. In this context, the chapter identifies various levels of deference expressed by international adjudicating bodies, which are reflected in different control mechanisms used by them: an assumption that deference to the State is not unrestricted; controls over the substantive meaning of public policy; controls exercised through a required threshold of seriousness; controls exercised through evidential requirements and procedural controls. The chapter concludes that, despite exiting converges, deference appears most restricted in the case of the EU and more liberal in the WTO, and there is significant variation in the practice of arbitral tribunals.

Keywords:   standard of review, deference, constitutionalism, public policy, legitimate objectives, indirect expropriation, weighing and balancing, proportionality

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