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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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The Role of the Standard of Review and the Importance of Deference in Investor–State Arbitration

The Role of the Standard of Review and the Importance of Deference in Investor–State Arbitration

Chapter:
(p.113) 7 The Role of the Standard of Review and the Importance of Deference in Investor–State Arbitration
Source:
Deference in International Courts and Tribunals
Author(s):

Caroline Henckels

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716945.003.0007

Chapter 7 argues that investment tribunals have not yet developed a coherent and principled approach to standard of review in relation to disputes involving the exercise of public power by host States. Some tribunals have employed a strict review, while others have shown a measure of deference to host States. In the latter instance, tribunals seem to rely on two key factors: (a) the desirability of regulatory autonomy and the host State authorities’ proximity to their populations; and (b) the authorities’ greater institutional competence and expertise. The chapter recognizes that this emerging approach to deference echoes the jurisprudence of other international courts and tribunals performing similar functions and argues that future investment tribunals should, cognizant of the desirability of deference in certain circumstances (ie in situations of normative or empirical uncertainty), exercise restraint in their assessment of matters that are more appropriately the province of national authorities.

Keywords:   investor–State arbitration, deference, standards of review, international investment law, balancing, investment treaties, judicial review, regulatory autonomy

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