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Proportionality and Deference in Investor-State Arbitration Caroline Henckels (University of New South Wales, Sydney)

Proportionality and Deference in Investor-State Arbitration By Caroline Henckels (University of New South Wales, Sydney)

Proportionality and Deference in Investor-State Arbitration by Caroline Henckels (University of New South Wales, Sydney)


Summary

Investment treaty arbitration urgently requires a certain and consistent way of deciding regulatory disputes that pays due respect to the competing imperatives of investment protection and regulatory autonomy. Caroline Henckels argues that in such cases investment tribunals should employ proportionality analysis in combination with an institutionally sensitive standard of review.

Proportionality and Deference in Investor-State Arbitration Summary

Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy by Caroline Henckels (University of New South Wales, Sydney)

In this study, Caroline Henckels examines how investment tribunals have balanced the competing interests of host states and foreign investors in determining state liability in disputes concerning the exercise of public power. Analyzing the concepts of proportionality and deference in investment tribunals' decision-making in comparative perspective, the book proposes a new methodology for investment tribunals to adopt in regulatory disputes, which combines proportionality analysis with an institutionally sensitive approach to the standard of review. Henckels argues that adopting a modified form of proportionality analysis would provide a means for tribunals to decide cases in a more consistent and coherent manner leading to greater certainty for both states and investors, and that affording due deference to host states in the determination of liability would address the concern that the decisions of investment tribunals unjustifiably impact on the regulatory autonomy of states.

Proportionality and Deference in Investor-State Arbitration Reviews

'... this book is an incisive and important contribution to the burgeoning literature on international investment law, and indeed other fields of international law as well as jurisprudence.' Luke Nottage, Journal of World Investment and Trade

About Caroline Henckels (University of New South Wales, Sydney)

Caroline Henckels is Senior Lecturer in Law at Monash University, Melbourne, and was previously Vice-Chancellor's Postdoctoral Research Fellow in Law at the University of New South Wales, Sydney.

Table of Contents

1. Introduction; 2. Proportionality and deference in theoretical perspective; 3. Operationalizing deference in the context of proportionality analysis: comparative approaches; 4. Methods of review employed by investment tribunals in regulatory disputes; 5. The development of an institutionally sensitive approach to proportionality analysis in investor-state arbitration; 6. Other issues affecting the method and standard of review in investor-state arbitration; Conclusion.

Additional information

NPB9781107087903
9781107087903
1107087902
Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy by Caroline Henckels (University of New South Wales, Sydney)
New
Hardback
Cambridge University Press
2015-10-15
266
N/A
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