The Excessive Evolution of the Margin of Appreciation

Presentation (2016, February 05)

From Dispute Settlement to Judicial Review? The Deference Debate in International Investment Law

in Duchateau, Michiel; Fikkers, Saskia; Lane, Lottie (Eds.) et al Evolution in Dispute Resolution. From Adjudication to ADR? (2016)

The Overtheorization of the Margin of Appreciation

Presentation (2015, November 06)

The Contested History of International Investment Law. From a Problematic Past to Current Controversies

in International Community Law Review (2015), 17(3), 373-388

In her new book ‘The Origins of International Investment Law’, Kate Miles reinforces calls for the reform of international investment law with a reconstruction of the field’s historical development ... [more ▼]

In her new book ‘The Origins of International Investment Law’, Kate Miles reinforces calls for the reform of international investment law with a reconstruction of the field’s historical development, arguing that the regime’s exclusive emphasis on the protection of investment at the expense of other societal and environmental interests is a consequence of its historical roots in colonialism and imperialism. This review essay summarizes the core of Miles’ argument, while also highlighting some alternative narratives of the history of international investment law, which emphasize the perceived mutual interest of both capital-exporting and capital-importing states in creating the current regime. The essay concludes by demonstrating that Miles’ reform proposals rely on a particular perspective on the desirable purpose and scope of international investment law. [less ▲]

Bridging Democracy and Human Rights: Perspectives from Strasbourg

Presentation (2015, May 21)

Caught Between Irrelevance and Overreach: The Catch-22 of the Strasbourg Court

Presentation (2015, January 21)

When adjudicating on controversial cases, the European Court of Human Rights needs to navigate between the pitfalls of irrelevance and overreach. The concept of the European consensus is the Court's most ... [more ▼]

When adjudicating on controversial cases, the European Court of Human Rights needs to navigate between the pitfalls of irrelevance and overreach. The concept of the European consensus is the Court's most reliable tool for finding the right direction. [less ▲]

The Margin of Appreciation in Investor-State Arbitration. The Prevalence and Desirability of Discretion and Deference

in Lavranos, Nikos; Kok, Ruth (Eds.) Hague Yearbook of International Law. Vol. 26 (2013) (2014)

This article investigates how arbitral tribunals in the field of international investment law have employed the margin of appreciation and whether its adoption is desirable in investor-state arbitration ... [more ▼]

This article investigates how arbitral tribunals in the field of international investment law have employed the margin of appreciation and whether its adoption is desirable in investor-state arbitration. In order to specify the analysis, the article proposes a new understanding of the margin, defining it as a measure of either discretion or deference, which is accorded by a reviewing institution to a respondent state and which translates into a non-intrusive standard of review. On the basis of this definition, the article concludes that tribunals have taken conflicting approaches concerning the margin, ranging from its explicit adoption to its explicit rejection. On the normative question, the article concludes that states are entitled to a measure of discretion under common investment treaty standards, while the notion of deference does not concord with the importance of independent arbitral review for the effective protection of foreign investments. Since the concept of the margin embodies both notions of discretion and deference, its adoption in investor-state arbitration is inappropriate. [less ▲]