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Deference in International Courts and TribunalsStandard of Review and Margin of Appreciation$
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Lukasz Gruszczynski and Wouter Werner

Print publication date: 2014

Print ISBN-13: 9780198716945

Published to Oxford Scholarship Online: November 2014

DOI: 10.1093/acprof:oso/9780198716945.001.0001

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Good Faith Review

Good Faith Review

(p.74) 5 Good Faith Review
Deference in International Courts and Tribunals

Andrei Mamolea

Oxford University Press

Chapter 5 examines the relevance of good faith review in establishing a breach of international obligations. The chapter argues that in practice, international courts and tribunals frequently engage in good faith reviews, even where the applicable legal rule does not include a ‘psychological’ element. In this context, he notes that there are three ways that a State’s intent can be found improper. In particular, it may be discriminatory, it may fall outside the permissible intents described in the ‘clawback clause’ of a treaty, or it may be described broadly as arbitrary and unreasonable. The chapter also notes that, unlike with some other questions of fact, international courts and tribunals actually grant no deference to a State’s post hoc characterizations of its own intent. Instead, a State benefits from a historic presumption against bad faith that manifests itself as a high standard of proof for the claimant.

Keywords:   good faith, subjective intent, subjective evidence, standard of review, standard of proof, State responsibility, propensity evidence

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