The Need for Public Law Standards of Review in Investor-State Arbitrations

William Burke-White and Andreas von Staden

in International Investment Law and Comparative Public Law

Published in print October 2010 | ISBN: 9780199589104
Published online January 2011 | e-ISBN: 9780191595455 | DOI:
The Need for Public Law Standards of Review in Investor-State Arbitrations

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In recent years, investment arbitration has increasingly moved from its private law origins into the realm of public law adjudication, but the standards of review applied by ad hoc arbitral tribunals have generally not followed step to take account of this development. This chapter argues that public law standards of review should be more deferential to determinations made at the national level than those applicable to disputes of a purely commercial and private law nature, and highlights institutional expertise in public law matters as a key criterion to support this claim. Reviewing select standards of review applied by other international courts and tribunals, the margin of appreciation developed by the European Court of Human Rights is identified as the most preferable alternative to strict scrutiny review, an alternative that provides respondent states with sufficient freedom of action in public law matters while preserving the supervisory role of the international judiciary.

Keywords: public law; standard of review; strict scrutiny; margin of appreciation; least restrictive alternative; good faith; Argentina; European Court of Human Rights; expertise; proportionality

Chapter.  15267 words. 

Subjects: Constitutional and Administrative Law

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