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Deference in International Courts and Tribunals
Standard of Review and Margin of Appreciation
Edited by Lukasz Gruszczynski and Wouter Werner
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International courts and tribunals are often asked to review decisions originally made by domestic decision-makers.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.
1:Introduction, Lukasz Gruszczynski and Wouter Werner
Part I: General issues/comparative perspectives
2:Judicial standards of review and administration of justice in trade and investment law and adjudication, Ernst-Ulrich Petersmann
3:Deference and the use of the public policy exception in international courts, Ilona Cheyne
4:Democracy and distrust in international law: The procedural democracy doctrine and the standard of review used by international courts and tribunals, Benedikt Pirker
5:Good faith review, Andrei Mamolea
Part II: International investment law and WTO law
6:Beyond the standard of review: Deference criteria in WTO law and the case for procedural approach, Michael Ioannidis
7:The role of the standard of review and the importance of deference in investor-state arbitration, Caroline Henckels
8:Treaty change, arbitral practice and the search for a balance: Standards of review and the margin of appreciation in international investment law, Erlend Leonhardsen
9:Standard of review and scientific evidence in WTO law and international investment arbitration: Converging parallels?, Valentina Vadi and Lukasz Gruszczynski
Part III: European Union law
10:National procedural choices before the Court of Justice of the European Union, Pieter Van Cleynenbreugel
11:Risk, precaution and scientific complexity before the Court of Justice of the European Union, Patrycja Dabrowska-Klosinska
12:Standard of review for necessity and proportionality analysis in EU and WTO law: Why differences in standards of review are legitimate?, Alexia Herwig & Asja Serdarevic
Part IV: International human rights law
13:1. The European Court of Human Rights and standards of proof: An evidential approach toward the margin of appreciation, Mónika Ambrus
14:Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?, Uladzislau Belavusau
15:The standard of equivalent protection as a standard of review, Veronika Bílková
16:Subsidiarity in the Americas: what room is there for deference in the Inter-American System?, Bernard Duhaime
Part V: Other international courts
17:Standard of review and the margin of appreciation before the International Court of Justice, Chiara Ragni
18:Standard of review and the International Tribunal on the Law of the Sea, Rosemary Rayfuse
19:Deference in the International Criminal Court practice concerning admissibility challenges lodged by States, Karolina Wierczynska
20:Beyond hierarchy: Standards of review and complementarity of the International Criminal Court, Diane Bernard
Edited by Lukasz Gruszczynski, Assistant Professor of International Law, Institute of Law Studies of the Polish Academy of Sciences, and Wouter Werner, Professor of Public International Law, Free University of Amsterdam
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 Law and the Netherlands Yearbook of International Law.
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)
"This book contains a diverse collection of essays dealing with the fascinating issue of deference in international courts and tribunals... Gruszczynski and Werner's book provides a welcome and commendable contribution to the issue of judicial deference in international law generally, i.e. beyond the familiar fields of human rights and trade law." - Andrew Legg, The Journal of World Investment & Trade
"...Those with some knowledge of the WTO, EU, ECHR and investment legal regimes are in for a real treat, and will find here a veritable banquet of food for thought...The editors are to praise for taming, to the extent practicable, an intractable topic." - Filippo Fontanelli, EJRR
"This book is a welcome first foray into the study of the concept of judicial deference by tribunals to states and other bodies in disparate fields of international law. Providing inspiration for further research is one of the books achievements. Gruszczynski and Werner's book provides a welcome and commendable contribution to the issue of judicial deference in international law generally, i.e. beyond the familiar fields of human rights and trade law." - Andrew Legg, Essex Court Chambers London, The Journal of World Investment & Trade
"This book... has a comprehensive scope and, to a great extent, offers a good overview of the varying jurisprudence regarding the degree of scrutiny applied by international courts when reviewing States actions... Indeed, this excellent book provides insightful perspectives on how different international courts proceed to exercise their adjudicating power using standard of review and/or margin of appreciation as instruments for either judicial self-restraint or judicial activism... the book does an excellent job in showing the diversity of approaches adopted by different international courts." - Maria Alcover, World Trade Review
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