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Deference in International Courts and Tribunals

Deference in International Courts and Tribunals Standard of Review and Margin of Appreciation

Name: Deference in International Courts and Tribunals
Brand: Oxford University Press
SKU: 9780198716945
Price: 1733.88 HKD
Availability: InStock
Author: Lukasz Gruszczynski; Wouter Werner
ISBN: 9780198716945

Edited by Lukasz Gruszczynski · Wouter Werner

Oxford University Press October 2014

Specifications

ISBN-13: 9780198716945
Publisher: Oxford University Press
Publication: October 2014
Format: Hardback , 464 pages
Jurisdiction: International ? Countri(es) for reference only

Details

Provides a detailed analysis of how far international courts and tribunals have deferred to national judgments, and where their approaches have diverged
Investigates deference through the prism of the standard of review and margin of appreciation, showing how these doctrines have been applied in a range of international courts
Exposes the variety of approaches by international courts, including the International Court of Justice and the International Tribunal for the Law of the Sea, and shows their impact on the perceived incoherence of international jurisprudence

International courts and tribunals are often asked to review decisions originally made by domestic decision-makers. This can often be a source of tension, as the international courts and tribunals need to judge how far to defer to the original decisions of the national bodies. As international courts and tribunals have proliferated, different courts have applied differing levels of deference to those originial decisions, which can lead to a fragmentation in international law. International courts in such positions rely on two key doctrines: the standard of review and the margin of appreciation. The standard of review establishes the extent to which national decisions relating to factual, legal, or political issues arising in the case are re-examined in the international court. The margin of appreciation is the extent to which national legislative, executive, and judicial decision-makers are allowed to reflect diversity in their interpretation of human rights obligations.

The book begins by providing an overview of the margin of appreciation and standard of review, recognising that while the margin of appreciation explicitly acknowledges the existence of such deference, the standard of review does not: it is rather a procedural mechanism. It looks in-depth at how the public policy exception has been assessed by the European Court of Justice and the WTO dispute settlement bodies. It examines how the European Court of Human Rights has taken an evidence-based approach towards the margin of appreciation, as well as how it has addressed issues of hate speech. The Inter-American system is also investigated, and it is established how far deference is possible within that legal organisation. Finally, the book studies how a range of other international courts, such as the International Criminal Court, and the Law of the Sea Tribunal, have approached these two core doctrines.

Readership: Scholars and students studying the relationship between international and domestic law, how international law is applied by international courts and tribunals; practitioners and judges working or appearing before international courts; government legal advisers

1: Lukasz Gruszczynski and Wouter Werner: Introduction
Part I: General issues/comparative perspectives
2: Ernst-Ulrich Petersmann: Judicial standards of review and administration of justice in trade and investment law and adjudication
3: Ilona Cheyne: Deference and the use of the public policy exception in international courts
4: Benedikt Pirker: Democracy and distrust in international law: The procedural democracy doctrine and the standard of review used by international courts and tribunals
5: Andrei Mamolea: Good faith review
Part II: International investment law and WTO law
6: Michael Ioannidis: Beyond the standard of review: Deference criteria in WTO law and the case for procedural approach
7: Caroline Henckels: The role of the standard of review and the importance of deference in investor-state arbitration
8: Erlend Leonhardsen: Treaty change, arbitral practice and the search for a balance: Standards of review and the margin of appreciation in international investment law
9: Valentina Vadi and Lukasz Gruszczynski: Standard of review and scientific evidence in WTO law and international investment arbitration: Converging parallels?
Part III: European Union law
10: Pieter Van Cleynenbreugel: National procedural choices before the Court of Justice of the European Union
11: Patrycja Dabrowska-Klosinska: Risk, precaution and scientific complexity before the Court of Justice of the European Union
12: Alexia Herwig & Asja Serdarevic: Standard of review for necessity and proportionality analysis in EU and WTO law: Why differences in standards of review are legitimate?
Part IV: International human rights law
13: Mónika Ambrus: 1. The European Court of Human Rights and standards of proof: An evidential approach toward the margin of appreciation
14: Uladzislau Belavusau: Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?
15: Veronika Bílková: The standard of equivalent protection as a standard of review
16: Bernard Duhaime: Subsidiarity in the Americas: what room is there for deference in the Inter-American System?
Part V: Other international courts
17: Chiara Ragni: Standard of review and the margin of appreciation before the International Court of Justice
18: Rosemary Rayfuse: Standard of review and the International Tribunal on the Law of the Sea
19: Karolina Wierczynska: Deference in the International Criminal Court practice concerning admissibility challenges lodged by States
20: Diane Bernard: Beyond hierarchy: Standards of review and complementarity of the International Criminal Court

About the Author

Lukasz Gruszczynski is Assistant Professor of International Law at the Institute of Law Studies of the Polish Academy of Sciences. He is the author of Regulating Health and Environmental Risks Under WTO Law (OUP, 2010).

Wouter Werner is Professor of Public International Law at the Free University of Amsterdam. He is a member of the Dutch Advisory Council on Public International Law, and is an editor of the Leiden Journal of International Lawand the Netherlands Yearbook of International Law.

Contributors:
Monika Ambrus, PhD, Lecturer in Public International Law at the Faculty of Law, University of Groningen
Uladzislau Belavusau, PhD, Assistant Professor at the Faculty of Law, VU University Amsterdam
Diane Bernard, PhD, Senior Researcher at the Belgian National Fund for Research and professeur invitée at the Saint-Louis University - Brussels
Veronika Bilkova, PhD, Assistant Professor at the Faculty of Law, Charles University in Prague
Ilona Cheyne, Professor at the School of Law, Oxford Brookes University
Pieter Van Cleynenbreugel, PhD, Assistant Professor at the Europa Institute, Leiden Law School
Patrycja D?browska?K?osi?ska, PhD, Assistant Professor at the Center for Europe, University of Warsaw
Bernard Duhaime, Professor at the Faculty of Law and Political Science, University of Québec (Montreal)
Lukasz Gruszczynski, PhD, Assistant Professor at the Institute of Law Studies, Polish Academy of Sciences (Warsaw)
Caroline Henckels, PhD, Vice-Chancellor's Post-Doctoral Research Fellow at the Faculty of Law, UNSW Australia (The University of New South Wales)
Alexia Herwig, PhD, Assistant Professor at the University of Antwerp
Michael Ioannidis, PhD, Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law (Heidelberg)
Erlend M. Leonhardsen, Research Fellow at Scandinavian Institute of Maritime Law, Department of Petroleum and Energy Law, Faculty of Law, University of Oslo
Andrei Mamolea, PhD Candidate at the Graduate Institute of International and Development Studies (Geneva)
Ernst-Ulrich Petersmann, Emeritus Professor of International and European Law at the European University Institute (Florence)
Benedikt Pirker, PhD, Post-doctoral Assistant at the Institute of European Law, University of Fribourg
Chiara Ragni, PhD, Senior Researcher and Assistant Professor in International Law at the University of Milan
Rosemary Rayfuse, Professor at the Faculty of Law, UNSW Australia (The University of New South Wales) and Con-Joint Professor at the Faculty of Law, Lund University
Asja Serdarevic, PhD, Researcher at the Centre for European Law, Vrije Universiteit Brussel
Valentina Vadi, PhD, Reader at the Faculty of Law, Lancaster University
Wouter Werner, Professor at the Centre on the Politics of Transnational Law, Faculty of Law, VU University Amsterdam
Karolina Wierczynska, PhD, Assistant Professor, Institute of Law Studies, Polish Academy of Sciences (Warsaw)