- Title Pages
- Dedication
- Foreword
- Preface
- Table of Cases
- Table of Treaties, Legislation, and Related Instruments
- List of Abbreviations
- List of Contributors
- 1 International Investment Law and Comparative Public Law—an Introduction
- 2 Minimum Standards of Procedural Justice in Administrative Adjudication
- 3 Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality
- 4 The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark
- 5 Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
- 6 Full Protection and Security
- 7 Cain and Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
- 8 The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- 9 Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
- 10 Umbrella Clauses as Public Law Concepts in Comparative Perspective
- 11 Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
- 12 State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
- 13 Legitimate Expectations and Informal Administrative Representations
- 14 Revocation and Cancellation of Concessions, Operating Licences, and Other Beneficial Administrative Acts
- 15 Public-Private Partnerships: Award, Performance, and Remedies
- 16 Economic Emergency Powers: A Comparative Law Perspective
- 17 Property Protection and Protection of Cultural Heritage
- 18 Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
- 19 Comparative Taxation Procedure and Tax Enforcement
- 20 Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
- 21 Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
- 22 The Need for Public Law Standards of Review in Investor-State Arbitrations
- 23 Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
- 24 Comparative Compensation for Expropriation
- 25 Transparency and Representation of the Public Interest in Investment Treaty Arbitration
- Index
The Need for Public Law Standards of Review in Investor-State Arbitrations
The Need for Public Law Standards of Review in Investor-State Arbitrations
- Chapter:
- (p.689) 22 The Need for Public Law Standards of Review in Investor-State Arbitrations
- Source:
- International Investment Law and Comparative Public Law
- Author(s):
William Burke-White
Andreas von Staden
- Publisher:
- Oxford University Press
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
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- Title Pages
- Dedication
- Foreword
- Preface
- Table of Cases
- Table of Treaties, Legislation, and Related Instruments
- List of Abbreviations
- List of Contributors
- 1 International Investment Law and Comparative Public Law—an Introduction
- 2 Minimum Standards of Procedural Justice in Administrative Adjudication
- 3 Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—the Concept of Proportionality
- 4 The Concept of Indirect Expropriation in Comparative Public Law—Searching for Light in the Dark
- 5 Fair and Equitable Treatment, the Rule of Law, and Comparative Public Law
- 6 Full Protection and Security
- 7 Cain and Abel: Congruence and Conflict in the Application of the Denial of Justice Principle
- 8 The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO
- 9 Discrimination on the Basis of Nationality: Determining Likeness in Human Rights and Investment Law
- 10 Umbrella Clauses as Public Law Concepts in Comparative Perspective
- 11 Transfer of Funds: the Interaction between the IMF Articles of Agreement and Modern Investment Treaties: a Comparative Law Perspective
- 12 State Responsibility and Comparative State Liability for Administrative and Legislative Harm to Economic Interests
- 13 Legitimate Expectations and Informal Administrative Representations
- 14 Revocation and Cancellation of Concessions, Operating Licences, and Other Beneficial Administrative Acts
- 15 Public-Private Partnerships: Award, Performance, and Remedies
- 16 Economic Emergency Powers: A Comparative Law Perspective
- 17 Property Protection and Protection of Cultural Heritage
- 18 Taxation and Investment: Constitutional Law Limitations on Tax Legislation in Context
- 19 Comparative Taxation Procedure and Tax Enforcement
- 20 Investment Treaty Arbitration, Procedural Fairness, and the Rule of Law
- 21 Procedure in Investment Treaty Arbitration and the Relevance of Comparative Public Law
- 22 The Need for Public Law Standards of Review in Investor-State Arbitrations
- 23 Primary and Secondary Remedies in International Investment Law and National State Liability: A Functional and Comparative View
- 24 Comparative Compensation for Expropriation
- 25 Transparency and Representation of the Public Interest in Investment Treaty Arbitration
- Index
