TY - JOUR
T1 - Margin of appreciation as an indicator of judicial deference
T2 - Is it applicable to investment arbitration?
AU - Fukunaga, Yuka
N1 - Funding Information:
* Professor, Waseda University, School of Social Sciences. Email: yuka-fukunaga@waseda.jp. This research is supported by JSPS KAKENHI Grant Number 15K03145. An earlier version of the article, entitled ‘Margin of Appreciation and Judicial Deference in Investment Arbitration’, was presented at the Midyear Meeting of the American Society of International Law in 2017. The author is grateful for useful comments from Professor Julian Arato and other participants of the Meeting. I am particularly indebted to Judge Charles N. Brower for his valuable advice and suggestions. Of course, all views and errors are mine alone.
Publisher Copyright:
© 2018 The Author(s). Published by Oxford University Press. All rights reserved.
PY - 2019/3/1
Y1 - 2019/3/1
N2 - This paper is inspired by Philip Morris v. Uruguay, where the majority of the tribunal and the dissenting arbitrator diverge on whether 'margin of appreciation,' which has long been applied by the European Court of Human Rights (ECtHR), is applicable to investment arbitration. First, the paper points out that both the majority and the dissent wrongly consider 'margin of appreciation' itself as a prescriptive standard of review that requires the ECtHR to accord deference, but that it is rather a description of standards of review that are provided in certain provisions of the European Convention on Human Rights (ECHR). In particular, the paper argues that it has been used as an indicator of how much deference is required by certain provisions of the ECHR under certain circumstances. Then, after discussing why it has hardly been used outside the ECtHR, the paper discusses whether it is applicable to investment arbitration.
AB - This paper is inspired by Philip Morris v. Uruguay, where the majority of the tribunal and the dissenting arbitrator diverge on whether 'margin of appreciation,' which has long been applied by the European Court of Human Rights (ECtHR), is applicable to investment arbitration. First, the paper points out that both the majority and the dissent wrongly consider 'margin of appreciation' itself as a prescriptive standard of review that requires the ECtHR to accord deference, but that it is rather a description of standards of review that are provided in certain provisions of the European Convention on Human Rights (ECHR). In particular, the paper argues that it has been used as an indicator of how much deference is required by certain provisions of the ECHR under certain circumstances. Then, after discussing why it has hardly been used outside the ECtHR, the paper discusses whether it is applicable to investment arbitration.
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U2 - 10.1093/jnlids/idy034
DO - 10.1093/jnlids/idy034
M3 - Article
AN - SCOPUS:85062819325
SN - 2040-3585
VL - 10
SP - 69
EP - 87
JO - Journal of International Dispute Settlement
JF - Journal of International Dispute Settlement
IS - 1
ER -