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Judicial Deference In International Adjudication
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Book Synopsis Judicial Deference in International Adjudication by : Johannes Hendrik Fahner
Download or read book Judicial Deference in International Adjudication written by Johannes Hendrik Fahner and published by Bloomsbury Publishing. This book was released on 2020-08-06 with total page 312 pages. Available in PDF, EPUB and Kindle. Book excerpt: International courts and tribunals are increasingly asked to pass judgment on matters that are traditionally considered to fall within the domestic jurisdiction of States. Especially in the fields of human rights, investment, and trade law, international adjudicators commonly evaluate decisions of national authorities that have been made in the course of democratic procedures and public deliberation. A controversial question is whether international adjudicators should review such decisions de novo or show deference to domestic authorities. This book investigates how various international courts and tribunals have responded to this question. In addition to a comparative analysis, the book provides a normative argument, discussing whether different forms of deference are justified in international adjudication. It proposes a distinction between epistemic deference, which is based on the superior capacity of domestic authorities to make factual and technical assessments, and constitutional deference, which is based on the democratic legitimacy of domestic decision-making. The book concludes that epistemic deference is a prudent acknowledgement of the limited expertise of international adjudicators, whereas the case for constitutional deference depends on the relative power of the reviewing court vis-à-vis the domestic legal order.
Book Synopsis Judging at the Interface by : Esmé Shirlow
Download or read book Judging at the Interface written by Esmé Shirlow and published by Cambridge University Press. This book was released on 2021-02-18 with total page 381 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.
Book Synopsis Deference in International Courts and Tribunals by : Lukasz Gruszczynski
Download or read book Deference in International Courts and Tribunals written by Lukasz Gruszczynski and published by OUP Oxford. This book was released on 2014-10-09 with total page 400 pages. Available in PDF, EPUB and Kindle. Book excerpt: 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.
Book Synopsis Judging at the Interface by : Esmé Shirlow
Download or read book Judging at the Interface written by Esmé Shirlow and published by Cambridge University Press. This book was released on 2021-02-18 with total page 381 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.
Book Synopsis The Prospects of International Adjudication by : Clarence Wilfred Jenks
Download or read book The Prospects of International Adjudication written by Clarence Wilfred Jenks and published by . This book was released on 1964 with total page 858 pages. Available in PDF, EPUB and Kindle. Book excerpt:
Book Synopsis The Age of Deference by : David Rudenstine
Download or read book The Age of Deference written by David Rudenstine and published by Oxford University Press. This book was released on 2016 with total page 345 pages. Available in PDF, EPUB and Kindle. Book excerpt: "Rudenstine's [book] traces the [Supreme] Court's role in the rise of judicial deference to executive power since the end of World War II. He [posits that], in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary"--
Book Synopsis A Common Law of International Adjudication by : Chester Brown
Download or read book A Common Law of International Adjudication written by Chester Brown and published by International Courts and Tribu. This book was released on 2009 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Recent years have seen a proliferation of international courts and tribunals, which has given rise to several new issues affecting the administration of international justice. This book makes a signification contribution to understanding the impact of this proliferation by addressing oneimportant question: namely, whether international courts and tribunals are increasingly adopting common approaches to issues of procedure and remedies. This book's central argument is that there is an increasing commonality in the practice of international courts to the application of rulesconcerning these issues, and that this represents the emergence of a common law of international adjudication.This book examines this question by considering several key issues relating to procedure and remedies, and analyses relevant international jurisprudence to demonstrate that there is susbstantial commonality. It goes on to look at why international courts are increasingly adopting common approachesto such questions, and why a greater degree of commonality may be found with respect to some issues rather than others. In doing so, light is shed on the methods adopted by international courts to engage in the cross-fertilization of legal principles.The emergence of a common law of international adjudication has important practical and theoretical implications, as it suggests that international courts can also devise common approaches to the challenges that they face in the age of proliferation. It also suggests that international courts do notgenerally operate as self-contained regimes, but rather that they regard themselves as forming part of a community of international courts, therefore having positive implications for the development of an truly international legal system.
Book Synopsis Questions of Jurisdiction and Admissibility before International Courts by : Yuval Shany
Download or read book Questions of Jurisdiction and Admissibility before International Courts written by Yuval Shany and published by Cambridge University Press. This book was released on 2016 with total page 185 pages. Available in PDF, EPUB and Kindle. Book excerpt: Offers a new understanding of traditional rules on jurisdiction and admissibility of cases before international courts and tribunals.
Book Synopsis Preventing Irreparable Harm by : Eva R. Rieter
Download or read book Preventing Irreparable Harm written by Eva R. Rieter and published by . This book was released on 2010 with total page 1282 pages. Available in PDF, EPUB and Kindle. Book excerpt: International human rights adjudicators, while facing urgent cases, have used provisional measures in order to prevent irreparable harm, e.g. to order States to halt an expulsion, the execution of a death sentence, the destruction of the natural habitat, as well as to ensure access to health care in detention or protection against death threats. In the practice of the various adjudicators, the traditional concept of provisional measures has undergone a process of humanization. Preventing Irreparable Harm addresses the question of how such provisional measures can be made as persuasive as possible. Apart from the Inter-American Court, none of the human rights adjudicators motivate or publish their provisional measures. Yet the book analyzes their best practices and obstacles, determines the underlying rationale for their use of provisional measures, and establishes the core of the concept of provisional measures that all adjudicators have in common. It argues that clarity - on what belongs to the core of the concept and on what does not belong to the concept at all - enhances the persuasive force of provisional measures. The practices of the international adjudicators that are made accessible in this book will prove useful in the ongoing cross-fertilization that occurs among these adjudicators. Moreover, the analysis provided allows individual victims, their counsel, NGOs, as well as international institutions, to address more effectively urgent human rights cases.
Book Synopsis Contract Interpretation in Investment Treaty Arbitration by : Yuliya Chernykh
Download or read book Contract Interpretation in Investment Treaty Arbitration written by Yuliya Chernykh and published by BRILL. This book was released on 2022-01-17 with total page 629 pages. Available in PDF, EPUB and Kindle. Book excerpt: Contracts are relevant, frequently central, for a significant number of investment disputes. Yet, the way tribunals ascertain their content remains largely underexplored. How do tribunals interpret contracts in investment treaty arbitration? How should they interpret contracts? Does national law have any role to play? Contract Interpretation in Investment Treaty Arbitration: A Theory of the Incidental Issue addresses these questions. The monograph offers a valuable insight into the practice and theory of contract interpretation in investment treaty arbitration. By proposing a theoretical frame for seamless integration of contract interpretation into the overall structure of decision-making, the book contributes to predictability, coherence, sufficiency and correctness of the tribunals’ interpretative practices in investment treaty arbitration.
Book Synopsis The Margin of Appreciation in International Human Rights Law by : Andrew Legg
Download or read book The Margin of Appreciation in International Human Rights Law written by Andrew Legg and published by OUP Oxford. This book was released on 2012-07-05 with total page 272 pages. Available in PDF, EPUB and Kindle. Book excerpt: The margin of appreciation is a judicial doctrine whereby international courts allow states to have a measure of diversity in their interpretation of human rights treaty obligations. The doctrine is at the heart of some of the most important international human rights decisions. Does it undermine the universality of human rights? How should judges decide whether to give this margin of appreciation to states? How can lawyers make best use of arguments for or against the margin of appreciation? This book answers these questions, and broadens the discussion on the margin of appreciation by including material beyond the ECHR system. It provides a comprehensive justification of the doctrine, and ALLFSCA14I the key cases affecting the doctrine in practice. Part One provides a systematic defence of the margin of appreciation doctrine in international human rights law. Drawing on the philosophy of practical reasoning the book argues that the margin of appreciation is a doctrine of judicial deference and is a common and appropriate feature of adjudication. The book argues that the margin of appreciation doctrine prevents courts from imposing unhelpful uniformity, whilst allowing decisions to be consistent with the universality of human rights. Part Two considers the key case law of the European Court of Human Rights, the Inter-American Court of Human Rights, and the UN Human Rights Committee, documenting the margin of appreciation in practice. The analysis uniquely takes a broad look at the factors affecting the margin of appreciation. Part Three explores how the margin of appreciation operates in the judicial decision-making process, reconceptualising the proportionality assessment and explaining how the nature of the right and the type of case affect the courts' reasoning.
Book Synopsis Deference to the Administration in Judicial Review by : Guobin Zhu
Download or read book Deference to the Administration in Judicial Review written by Guobin Zhu and published by Springer Nature. This book was released on 2019-11-23 with total page 445 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book investigates judicial deference to the administration in judicial review, a concept and legal practice that can be found to a greater or lesser degree in every constitutional system. In each system, deference functions differently, because the positioning of the judiciary with regard to the separation of powers, the role of the courts as a mechanism of checks and balances, and the scope of judicial review differ. In addition, the way deference works within the constitutional system itself is complex, multi-faceted and often covert. Although judicial deference to the administration is a topical theme in comparative administrative law, a general examination of national systems is still lacking. As such, a theoretical and empirical review is called for. Accordingly, this book presents national reports from 15 jurisdictions, ranging from Argentina, Canada and the US, to the EU. Constituting the outcome of the 20th General Congress of the International Academy of Comparative Law, held in Fukuoka, Japan in July 2018, it offers a valuable and unique resource for the study of comparative administrative law.
Book Synopsis Legitimacy of Unseen Actors in International Adjudication by : Freya Baetens
Download or read book Legitimacy of Unseen Actors in International Adjudication written by Freya Baetens and published by Cambridge University Press. This book was released on 2019-08-22 with total page 651 pages. Available in PDF, EPUB and Kindle. Book excerpt: Investigates the legitimacy of 'unseen actors' (e.g. registries, experts) through an enquiry into international courts' and tribunals' composition and practice.
Book Synopsis The Performance of International Courts and Tribunals by : Theresa Squatrito
Download or read book The Performance of International Courts and Tribunals written by Theresa Squatrito and published by Cambridge University Press. This book was released on 2018-04-05 with total page 471 pages. Available in PDF, EPUB and Kindle. Book excerpt: Explores the contributions of international courts and tribunals in terms of performance by offering a comparative analysis of international courts.
Book Synopsis Constitutional Deference, Courts and Socio-economic Rights in South Africa by : Kirsty McLean
Download or read book Constitutional Deference, Courts and Socio-economic Rights in South Africa written by Kirsty McLean and published by PULP. This book was released on 2009 with total page 255 pages. Available in PDF, EPUB and Kindle. Book excerpt: Constitutional Deference, Courts and Socio-Economic Rights in South Africaby Kirsty McLean2009ISBN: 978-0-9814124-8-1Pages: viii 246Print version: AvailableElectronic version: Free PDF available.
Book Synopsis New Challenges to Constitutional Adjudication in Europe by : Zoltán Szente
Download or read book New Challenges to Constitutional Adjudication in Europe written by Zoltán Szente and published by Routledge. This book was released on 2018-03-09 with total page 324 pages. Available in PDF, EPUB and Kindle. Book excerpt: In the past few years, constitutional courts have been presented with new challenges. The world financial crisis, the new wave of terrorism, mass migration and other country-specific problems have had wide-ranging effects on the old and embedded constitutional standards and judicial constructions. This book examines how, if at all, these unprecedented social, economic and political problems have affected constitutional review in Europe. As the courts’ response must conform with EU law and in some cases international law, analysis extends to the related jurisprudence of the European Court of Justice and the European Court of Human Rights. The collection adopts a common analytical structure to examine how the relevant challenges have been addressed in ten country specific case studies. Alongside these, constitutional experts frame the research within the theoretical understanding of the constitutional difficulties of the day in Europe. Finally, a comparative chapter examines the effects of multilevel constitutionalism and identifies general European trends. This book will be essential reading for academics and researchers working in the areas of constitutional law, comparative law and jurisprudence.
Book Synopsis Constitutionalization of European Private Law by : Hans Micklitz
Download or read book Constitutionalization of European Private Law written by Hans Micklitz and published by OUP Oxford. This book was released on 2014-04-17 with total page 320 pages. Available in PDF, EPUB and Kindle. Book excerpt: In recent years the impact of human rights and fundamental rights on private law has risen in prominence and led to a whole series of detailed investigations. 'Constitutionalization of private law' is the flag under which most of the research on the increasing impact of national constitutional rights on national private legal orders is sailing. In the absence of a European Constitution, the constitutionalization of European private law suggests a process: constitutionalization instead of constituent power, demos, and the magic constitutional moment. The Charter of Fundamental Rights and the European Convention of Human Rights constitute the two pillars on which the transformation of European private law rests. This volume clearly demonstrates the change that has taken place, at the national and at the European level. Private law is no longer immune to the intrusion of fundamental and human rights. Whilst member states and the EU are driving the process by adopting ever more concrete and more comprehensive lists of human and fundamental rights, at the national, the European, and international level with overlapping contents, the true and key players in this development are the national and European courts. Contributions to this volume give this process a face and a direction, which is highlighted in the introduction by Hans-W. Micklitz.
