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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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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 15 October 2019

Democracy and Distrust in International Law

Democracy and Distrust in International Law

The Procedural Democracy Doctrine and the Standard of Review Used by International Courts and Tribunals

(p.58) 4 Democracy and Distrust in International Law
Deference in International Courts and Tribunals

Benedikt Pirker

Oxford University Press

Chapter 4 proposes Ely’s procedural democracy doctrine as a possible approach to justifying and evaluating the legitimacy of different standards of review used by international courts and tribunals in cases of value conflicts. The doctrine inquires into whether specific values, such as constitutional rights, are under-represented in a democratic political system, and the extent to which this under-representation requires virtual representation of these values by means of judicial review. The chapter examines the practical potential of international adjudicators such as the CJEU, the WTO Appellate Body, and international investment tribunals to apply the procedural democracy doctrine. It identifies two variables that can help determine the intensity of the review: values that are central to the system of democratic process in which adjudicating bodies participate as representation-reinforcing institutions; and the nature of the violation of such values.

Keywords:   international courts and tribunals, judicial review, standard of review, procedural democracy doctrine, United States constitutional law, John Hart Ely

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