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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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Treaty Change, Arbitral Practice and the Search for a Balance

Treaty Change, Arbitral Practice and the Search for a Balance

Standards of Review and the Margin of Appreciation in International Investment Law

Chapter:
(p.135) 8 Treaty Change, Arbitral Practice and the Search for a Balance
Source:
Deference in International Courts and Tribunals
Author(s):

Erlend M. Leonhardsen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198716945.003.0008

The chapter analyses the recent shift in States’ practice concerning international investment obligations, arguing that States increasingly seek to create or extend the existing margin of appreciation in new investment treaties. Against this background, it explores the concept of margin of appreciation in European human rights law, recognizing it as an inspiration for both governments and arbitrators. Yet, the chapter cautions against mechanical transplantation of the ECtHR concept to the field of investment arbitration. While the chapter applauds deference based on the epistemic superiority of national experts or procedural qualities of a domestic regulatory process, it remains rather sceptical with respect to the role that should be played by democratic-based deference in the context of international investment arbitration. The chapter concludes with the observation that the governmental push for more regulatory discretion has broadened the margin of appreciation enjoyed by States.

Keywords:   standard of review, margin of appreciation, deference, BIT, investment treaty arbitration, international adjudication, international dispute settlement, international courts and tribunals

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