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Proportionality and Deference in Investor-State Arbitration
Balancing Investment Protection and Regulatory Autonomy

$34.99 (C)

Part of Cambridge Studies in International and Comparative Law

  • Date Published: December 2018
  • availability: Available
  • format: Paperback
  • isbn: 9781107458178

$ 34.99 (C)

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About the Authors
  • 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.

    • Comprehensively analyzes investment tribunals' approaches to balancing state and investor interests in disputes involving states' exercise of public power
    • Proposes a new methodology for investment tribunals to adopt when adjudicating regulatory disputes
    • Examines the investment tribunals' approaches to proportionality and the standard of review in comparative perspective
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    Reviews & endorsements

    '… 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

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    Product details

    • Date Published: December 2018
    • format: Paperback
    • isbn: 9781107458178
    • length: 264 pages
    • dimensions: 230 x 152 x 14 mm
    • weight: 0.4kg
    • availability: Available
  • 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

  • Author

    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.

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