ISBN : 9780198716945
International courts and tribunals are often asked to review decisions originally made by domestic decision-makers.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.
PART I: GENERAL ISSUES/COMPARATIVE PERSPECTIVES
2. Judicial standards of review and administration of justice in trade and investment law and adjudication
3. Deference and the use of the public policy exception in international courts
4. Democracy and distrust in international law: The procedural democracy doctrine and the standard of review used by international courts and tribunals
5. Good faith review
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
7. The role of the standard of review and the importance of deference in investor-state arbitration
8. Treaty change, arbitral practice and the search for a balance: Standards of review and the margin of appreciation in international investment law
9. Standard of review and scientific evidence in WTO law and international investment arbitration: Converging parallels?
PART III: EUROPEAN UNION LAW
10. National procedural choices before the Court of Justice of the European Union
11. Risk, precaution and scientific complexity before the Court of Justice of the European Union
12. 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. 1. The European Court of Human Rights and standards of proof: An evidential approach toward the margin of appreciation
14. Experts in hate speech cases: Towards a higher standard of proof in Strasbourg?
15. The standard of equivalent protection as a standard of review
16. Subsidiarity in the Americas: what room is there for deference in the Inter-American System?
PART V: OTHER INTERNATIONAL COURTS
17. Standard of review and the margin of appreciation before the International Court of Justice
18. Standard of review and the International Tribunal on the Law of the Sea
19. Deference in the International Criminal Court practice concerning admissibility challenges lodged by States
20. Beyond hierarchy: Standards of review and complementarity of the International Criminal Court