Deference in International Courts and Tribunals: Standard of Review and Margin of Appreciation by Lukasz GruszczynskiDeference in International Courts and Tribunals: Standard of Review and Margin of Appreciation by Lukasz Gruszczynski

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

EditorLukasz Gruszczynski, Wouter Werner

Hardcover | November 9, 2015

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International courts and tribunals are often asked to review decisions originally made by domestic decision-makers.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 internationalcourts 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 ofappreciation. 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 judicialdecision-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 thepublic 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. TheInter-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 twocore doctrines.
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 Du...
Title:Deference in International Courts and Tribunals: Standard of Review and Margin of AppreciationFormat:HardcoverDimensions:400 pages, 9.21 × 6.14 × 0 inPublished:November 9, 2015Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:019871694X

ISBN - 13:9780198716945

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Table of Contents

1. Lukasz Gruszczynski and Wouter Werner: IntroductionPart I: General issues/comparative perspectives2. Ernst-Ulrich Petersmann: Judicial standards of review and administration of justice in trade and investment law and adjudication3. Ilona Cheyne: Deference and the use of the public policy exception in international courts4. Benedikt Pirker: Democracy and distrust in international law: The procedural democracy doctrine and the standard of review used by international courts and tribunals5. Andrei Mamolea: Good faith reviewPart II: International investment law and WTO law6. Michael Ioannidis: Beyond the standard of review: Deference criteria in WTO law and the case for procedural approach7. Caroline Henckels: The role of the standard of review and the importance of deference in investor-state arbitration8. Erlend Leonhardsen: Treaty change, arbitral practice and the search for a balance: Standards of review and the margin of appreciation in international investment law9. Valentina Vadi and Lukasz Gruszczynski: Standard of review and scientific evidence in WTO law and international investment arbitration: Converging parallels?Part III: European Union law10. Pieter Van Cleynenbreugel: National procedural choices before the Court of Justice of the European Union11. Patrycja Dabrowska-Klosinska: Risk, precaution and scientific complexity before the Court of Justice of the European Union12. Alexia Herwig and 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 law13. Monika Ambrus: 1. The European Court of Human Rights and standards of proof: An evidential approach toward the margin of appreciation14. Uladzislau Belavusau: Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?15. Veronika Bilkova: The standard of equivalent protection as a standard of review16. Bernard Duhaime: Subsidiarity in the Americas: what room is there for deference in the Inter-American System?Part V: Other international courts17. Chiara Ragni: Standard of review and the margin of appreciation before the International Court of Justice18. Rosemary Rayfuse: Standard of review and the International Tribunal on the Law of the Sea19. Karolina Wierczynska: Deference in the International Criminal Court practice concerning admissibility challenges lodged by States20. Diane Bernard: Beyond hierarchy: Standards of review and complementarity of the International Criminal Court