Judging at the Interface
Deference to State Decision-Making Authority in International Adjudication

This book investigates how international adjudicators defer to State decision-making authority, and what that reveals about the domestic-international interface.

Esmé Shirlow (Author)

9781108490979, Cambridge University Press

Hardback, published 18 February 2021

376 pages
15 x 23 x 2.5 cm, 0.79 kg

'Deference has become a central battleground in international adjudication. Starting from the link between sovereignty and deference, Dr Shirlow's exceptionally rich study provides fresh thinking on deference's functions and evolution, and comprehensive empirical evidence on deference as an adjudicative practice. Dr Shirlow's tour de force will be the first port of call for anyone concerned with deference in international adjudication. Her book is also a delight to read - highly recommended!' Michael Waibel, Professor of International Law, University of Vienna

This book explores how the Permanent Court of International Justice, the International Court of Justice, the European Court of Human Rights, and investment treaty tribunals have used deference to recognise the decision making authority of States. It analyses the approaches to deference taken by these four international courts and tribunals in 1,714 decisions produced between 1924 and 2019 concerning alleged State interferences with private property. The book identifies a large number of techniques capable of achieving deference to domestic decision-making in international adjudication. It groups these techniques to identify seven distinct 'modes' of deference reflecting differently structured relationships between international adjudicators and domestic decision-makers. These differing approaches to deference are shown to hold systemic significance. They reveal the shifting nature and structure of adjudication under international law and its relationship to domestic decision making authority.

Preface
Introduction: deference and the international adjudication of private property disputes
Part I. Conceptual Framework and Methodological Approach: 1. Defining deference – the connection between deference and authority
2. Deference in context – domestic authority and international private property claims
3. Locating deference – the function of deference in legal adjudication
Part II. Deference in the International Adjudication of Private Property Disputes: 4. Structures of deference in international case law
5. Conclusive decision-making authority: deference as submission or control
6. Suspensive decision-making authority: deference as deferral and abstention
7. Concurrent decision-making authority: deference as restraint, reference, and respect
Part III. The Systemic Role of Deference in International Law: 8. Deference in different times and contexts
9. The systemic implications of deference in international adjudication
10. Bringing principles into practice: grappling with deference in international adjudication
Conclusion: deference as a story of international adjudication
Appendix: data tables
References
Index.

Subject Areas: International arbitration [LBHT], International courts & procedures [LBHG], International law [LB]