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8 - Deference in Different Times and Contexts

from Part III - The Systemic Role of Deference in International Law

Published online by Cambridge University Press:  24 February 2021

Esmé Shirlow
Affiliation:
Australian National University, Canberra
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Summary

This Chapter uses descriptive statistics to investigate how approaches to deference in international private property claims differ according to regime, and whether they have changed over time or according to context. The aim is to identify – based on the inductive, qualitative, review – whether some approaches to deference have been more prevalent than others in different times or contexts. The Chapter investigates regime-specific trends in approaches to deference. It highlights differences in the frequency with which the modes of deference, and approaches to authority, were applied by adjudicators in each regime. It further examines the different approaches to deference exhibited by adjudicators at the ECtHR Grand Chamber and Committee/Chamber levels, and in ICSID and non-ICSID arbitral decisions. The Chapter further emphasises the dynamic qualities of deference to investigate whether approaches to deference have changed over time. It identifies a rise in applications of modes of deference reflecting a concurrent view of authority and a dynamism in the approaches of adjudicators to selecting grounds for deference within the mode of deference as respect.

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Chapter
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Judging at the Interface
Deference to State Decision-Making Authority in International Adjudication
, pp. 197 - 220
Publisher: Cambridge University Press
Print publication year: 2021

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