Articles by Andreas von Staden
Czech Yearbook of International Law, 2018
A key question concerning the role and relevance of international organizations is the extent to ... more A key question concerning the role and relevance of international organizations is the extent to which their rules and decisions are being complied with and how effective they are in resolving the problems for the solution of which they were ostensibly created. This also applies to Dispute settlement mechanisms whose raison d’être is to clarify the boundaries of permissible behaviour within applicable international law and, ideally, to trigger remedial action when these boundaries have been overstepped. Yet formally institutionalized mechanisms to monitor second-order compliance with judgments and decisions of judicial and quasi-judicial decision-making bodies remain a rarity in the designs of dispute settlement mechanisms. Where these are lacking in their constitutive instruments, some dispute-settlement bodies have developed mechanisms to monitor and assess second-order compliance of their own. This article explores the follow-up procedures of the UN human rights treaty bodies with a focus on the compliance standards employed by them. While these procedures by themselves will not suffice to resolve the compliance challenges that the treaty bodies face, they may contribute to enforcement by enabling more targeted naming and shaming by interested stakeholders and NGOs.
Kritische Justiz, 2016
Der internationale Menschenrechtsschutz ist durch eine Vielzahl von Institutionen gekennzeichnet,... more Der internationale Menschenrechtsschutz ist durch eine Vielzahl von Institutionen gekennzeichnet, deren Aufgaben von der Prüfung von Staatenberichten über die Initiierung eigener Untersuchungen und die Erstellung von Kommentaren zur Vertragsauslegung bis hin zur Beilegung konkreter Streitigkeiten zwischen Staaten und zwischen Staaten und nichtstaatlichen Beschwerdeführern reichen. Mit Ausnahme der drei regionalen Gerichtshöfe in Europa, Afrika und Amerika ist diesen Institutionen gemein, dass ihr Output und die darin enthaltenen Interpretationen für die beteiligten Staaten nach herrschender Auffassung ganz überwiegend rechtlich nicht verbindlich sind und die Nichtbefolgung entsprechender Entscheidungen, die eine Verletzung einer einschlägigen Vertragsnorm feststellen, für sich genommen somit keine völkerrechtlichen Rechtsfolgen begründet. In diesem Beitrag argumentiere ich, dass die rechtliche Unverbindlichkeit als Element des institutionellen Designs des globalen Menschenrechtsregimes gerade im Bereich der Individualbeschwerdeverfahren normativ problematisch ist und durch den negativen Einfluss auf die Effektivität der Beschwerdeverfahren im Sinne der Beseitigung der konstatierten Verletzungen die Legitimität dieses Aspektes des globalen Menschenrechtssystems negativ beeinflusst.
The International Journal of Human Rights , 2016
As an organising principle within multi-level governance systems, subsidiarity stipulates that de... more As an organising principle within multi-level governance systems, subsidiarity stipulates that decisions should be taken at the lower of any two levels of politico-legal
organisation, unless compelling reasons argue in favour of moving decision-making
to the higher level. In the judicial field, the principle has found expression,
procedurally, in the exhaustion of domestic remedies rule and, substantively, in the
margin of appreciation and similar deference-granting doctrines. These judicial
manifestations of the subsidiarity principle should particularly likely to appear in the
context of courts exercising jurisdiction over individual human rights complaints.
This article investigates the extent to which three sub-regional courts in Africa that
shortly after their creation began to foray into the human rights domain – the
ECOWAS Community Court of Justice, the East African Court of Justice, and the
Tribunal of the Southern African Development Community – have recognised
subsidiarity as a guiding principle for the exercise of their human rights jurisdiction.
Contrary to expectations, neither the exhaustion of domestic remedies rule nor
margin-of-appreciation-type doctrines have so far played any meaningful role in the
human rights jurisprudence of the three sub-regional courts.
Law and Contemporary Problems, Jun 2016
The principle of subsidiarity features prominently in discussions concerning
the allocation and e... more The principle of subsidiarity features prominently in discussions concerning
the allocation and exercise of political and legal authority in multilevel
governance arrangements in which at least some competences are shared
between different levels of politico–legal decisionmaking—so much so that
some have heralded, at least in Europe, an emerging “age of subsidiarity” (R. Spano)
Understood as signifying a “rebuttable presumption for the local” (A. Føllesdal) or favoring lower levels of political organization and decisionmaking more generally, much of the legal and political science literature on the topic takes its principal
theoretical and empirical cues from the experience with subsidiarity and its
cognates in European institutional contexts.
This article investigates the presence or absence of subsidiarity in select
regional economic integration organizations outside of Europe—namely, the Southern Common Market (Mercosur) and the Andean Community in Latin America, and the Economic Community of West African States (ECOWAS), the East African Community (EAC), and the Southern African Development Community (SADC) in Africa. Part II briefly restates the theoretical framework for this investigation. Parts III and IV examine, at the level of formal legal Instruments and other official documents, the use and definition of subsidiarity in the regional contexts under consideration. The final part concludes.
International Journal of Constitutional Law, 2012
For reasons of linguistic economy, I will for the most part simply refer to "international courts... more For reasons of linguistic economy, I will for the most part simply refer to "international courts," it being understood that the argument likewise applies to courts that elsewhere are classified as trans-or supranational, as well as to arbitral tribunals and, mutatis mutandis, quasi-judicial dispute settlement bodies.
Swiss Political Science Review, 2012
The legitimacy of global governance arrangements remains a major focus of scholarly interest acro... more The legitimacy of global governance arrangements remains a major focus of scholarly interest across the social sciences. To maximize the potential insights of such research, a closer cooperation of scholars across the relevant disciplines and the creation of a genuinely interdisciplinary research program promises significant rewards. The normative blueprints for more democratically legitimate forms of global governance developed by political theorists in particular would benefit, I argue, from a closer linkage with political science, with the latter providing critical insights into the causal factors and mechanisms that determine outcomes in international politics, insights that are indispensable for studying and assessing the feasibility of implementing abstractly attractive normative designs. The contributions in this Special Issue begin to cross the ''normative-positive divide'' each in its own way and collectively point the way toward more integrated future research.
Zeitschrift für Internationale Beziehungen , 2013
Die Auswirkungen der Pluralisierung globaler normativer Ordnungen rücken zu-
nehmend ins Zentrum ... more Die Auswirkungen der Pluralisierung globaler normativer Ordnungen rücken zu-
nehmend ins Zentrum rechts- und politikwissenschaftlicher Forschung. Die Frage,
auf welche Weise mit Konflikten zwischen unterschiedlichen Ordnungen umgegangen wird und werden sollte, steht dabei im Zentrum der Debatte. Dieser Literaturbericht diskutiert, wie unterschiedliche Stränge der Forschung in Politikwissenschaft und Völkerrecht solche Konflikte, die aus der Überlappung normativer Ordnungen entstehen, darstellen und welche Lösungsstrategien sie präsentieren. Der Artikel identifiziert dabei drei Schieflagen in der bestehenden Literatur: den Fokus auf Eindeutigkeit, die Gegenüberstellung von rechtlichen und politischen Lösungen und einen Fokus auf formalisierte Ordnungen. Darauf aufbauend wird eine Typologie zu Strategien des Umgangs mit Überlappungskonflikten vorgeschlagen: Unterschieden werden hier das Aushalten von Ambivalenz, Einzelfallentscheidungen sowie die Schaffung von Eindeutigkeit. Letztere kann in drei verschiedenen Formen – Neuordnung, Hierarchisierung oder Vereinheitlichung – auftreten. Zudem werden Forschungsperspektiven für deskriptive, kausalanalytische und normative Forschung zu Überlappungskonflikten skizziert.
Czech Yearbook of International Law, 2011
Several arbitral awards rendered against Argentina under bilateral Investment treaties and relate... more Several arbitral awards rendered against Argentina under bilateral Investment treaties and related to the country’s devastating economic crisis in 2001–2002 restrictively interpreted Argentina’s ability to rely on either the exception clause in the US-Argentina investment treaty or the necessity defence under customary international law. In three cases (CMS, Sempra, and Enron), the tribunals, by simply equating the requirements under the treaty exception with those of the customary necessity defence, all but ignored established canons of treaty interpretation and engaged in doctrinally muddled analyses of the relationship between treaty law and customary law. All three awards have since been subject to
annulment decisions by ICSID ad hoc committees. While the decisions disagree on what constitutes an appropriate reason for annulment under the manifest excess of powers ground, they off er doctrinally much improved approaches to the interpretation and application of both treaty exceptions and the necessity defence. Identifying the proper dividing line between permissible annulment review and impermissible appellate review in such contexts has been, and will remain, contentious, but the Sempra and Enron committees off er reasonable assessments of when an error of law becomes so grave as to result in actual failure to apply the proper law.
Yale Journal of International Law , Sep 2, 2010
International arbitration and, particularly, investor-state arbitration is rapidly shifting
to i... more International arbitration and, particularly, investor-state arbitration is rapidly shifting
to include disputes of a public law nature. Yet, arbitral tribunals continue to apply
standards of review derived from the private law origins of international arbitration,
have not recognized the new public law context of these disputes, and have failed to
develop a coherent jurisprudence with regard to the applicable standard for reviewing
a state's public regulatory activities. This problematic approach is evidenced by a
recent series of cases brought by foreign investors against Argentina challenging the
economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A
comparative analysis of public law standards of review from both other international
courts and the domestic systems of the U.S. and Germany demonstrates that arbitral
tribunals have a variety of standards of review from which they could borrow to
develop a coherent jurisprudence. While any consistently applied public law standard
of review that recognizes the competing public interests at stake in this new form of
international arbitration would be preferable to the status quo, we argue that for
reasons of institutional capacity, expertise, and embeddedness, the margin of
appreciation as developed by the European Court of Human Rights may offer the best
path forward. The consistent application of a margin of appreciation when reviewing
public law regulatory activities of states would allow arbitral tribunals to grant
appropriate deference to national authorities while simultaneously protecting investor
rights, thereby helping to close the growing legitimacy gap in investor-state
arbitration.
International arbitration and, particularly, investor-state arbitration is rapidly shifting to in... more International arbitration and, particularly, investor-state arbitration is rapidly shifting to include disputes of a public law nature. Yet, arbitral tribunals continue to apply standards of review derived from the private law origins of international arbitration, have not recognized the new public law context of these disputes, and have failed to develop a coherent jurisprudence with regard to the applicable standard for reviewing a state's public regulatory activities. This problematic approach is evidenced by a recent series of cases brought by foreign investors against Argentina challenging the economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A comparative analysis of public law standards of review from both other international courts and the domestic systems of the U.S. and Germany demonstrates that arbitral tribunals have a variety of standards of review from which they could borrow to develop a coherent jurisprudence. While any consistently applied public law standard of review that recognizes the competing public interests at stake in this new form of international arbitration would be preferable to the status quo, we argue that for reasons of institutional capacity, expertise, and embeddedness, the margin of appreciation as developed by the European Court of Human Rights may offer the best path forward. The consistent application of a margin of appreciation when reviewing public law regulatory activities of states would allow arbitral tribunals to grant appropriate deference to national authorities while simultaneously protecting investor rights, thereby helping to close the growing legitimacy gap in investor-state arbitration.
Virginia Journal of International Law , 2008
When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and na... more When threatened by crises such as global terrorism, financial collapse, pandemic diseases, and natural disasters, states may resort to measures that harm the interests of foreign investors protected under the bilateral investment treaty (BIT) regime. Many such BITs, however, contain heretofore under-studied clauses that preclude liability for state actions taken in response to exceptional circumstances. These non-precluded measures (NPM) clauses
Book Chapters by Andreas von Staden
Joana Mendes & Ingo Venzke, eds., Allocating Authority: Who Should Do What in European and International Law?, 2018
Every system for governing large and complex political communities is effectively characterized b... more Every system for governing large and complex political communities is effectively characterized by different sites of relative, rather than absolute, authority. The real question is not whether authority is relative, but rather how relative it is, with authority (and power) being more concentrated, or dispersed, in some systems than in others, both as a matter of their formal legal allocation and their factual exercise. This applies to domestic constitutional systems of government as well as to governance arrangements beyond the state.
The idea of ‘checks and balances’ plays a central role in this respect. While distinct from the doctrine of the separation of powers, its genesis and development has been so closely related to it that the two are frequently considered as being two sides of the same coin, or even synonymous. In this chapter I address select conceptual issues concerning checks and balances in global governance and provide illustrative examples as to their operation in practice. In addition, I articulate conjectures as to why horizontal checks and balances are so much rarer in global than in domestic governance, arguing, inter alia, that the vertical checks available to states as a result of the principal-agent relationship between them and the IOs in which they are members, and the dependency of the latter on states for the implementation of their decisions, provide key explanations as to why additional horizontal checks are usually perceived as unnecessary. The conclusion summarizes and points to the need to address the role of non-state actors in future research on relative authority and checks and balances beyond the state.
The Political Economy of International Law: A European Perspective (ed. Alberta Fabbricotti), Jun 2016
Peter Niesen, ed., Transnationale Gerechtigkeit und Demokratie (215-250)
International Investment Law and Comparative Public Law, 2010
Unterschiedliche Formen von Global Governance im Vergleich, 2009
Mary H. Mourra & Thomas E. Carbonneau, eds., Latin American Investment Treaty Arbitration: The Controversies and Conflicts, 105-162
Other by Andreas von Staden
Books by Andreas von Staden
In Strategies of Compliance, I look at the nature of human rights challenges in two enduring libe... more In Strategies of Compliance, I look at the nature of human rights challenges in two enduring liberal democracies, Germany and the United Kingdom. Employing a comprehensive data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, I present a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, I detail how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices. Framing my analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, I argue that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same timein other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.
Papers by Andreas von Staden
20th International Conference of Europeanists - Crisis & Contingency: States of (In)Stability, Jun 27, 2013
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Articles by Andreas von Staden
organisation, unless compelling reasons argue in favour of moving decision-making
to the higher level. In the judicial field, the principle has found expression,
procedurally, in the exhaustion of domestic remedies rule and, substantively, in the
margin of appreciation and similar deference-granting doctrines. These judicial
manifestations of the subsidiarity principle should particularly likely to appear in the
context of courts exercising jurisdiction over individual human rights complaints.
This article investigates the extent to which three sub-regional courts in Africa that
shortly after their creation began to foray into the human rights domain – the
ECOWAS Community Court of Justice, the East African Court of Justice, and the
Tribunal of the Southern African Development Community – have recognised
subsidiarity as a guiding principle for the exercise of their human rights jurisdiction.
Contrary to expectations, neither the exhaustion of domestic remedies rule nor
margin-of-appreciation-type doctrines have so far played any meaningful role in the
human rights jurisprudence of the three sub-regional courts.
the allocation and exercise of political and legal authority in multilevel
governance arrangements in which at least some competences are shared
between different levels of politico–legal decisionmaking—so much so that
some have heralded, at least in Europe, an emerging “age of subsidiarity” (R. Spano)
Understood as signifying a “rebuttable presumption for the local” (A. Føllesdal) or favoring lower levels of political organization and decisionmaking more generally, much of the legal and political science literature on the topic takes its principal
theoretical and empirical cues from the experience with subsidiarity and its
cognates in European institutional contexts.
This article investigates the presence or absence of subsidiarity in select
regional economic integration organizations outside of Europe—namely, the Southern Common Market (Mercosur) and the Andean Community in Latin America, and the Economic Community of West African States (ECOWAS), the East African Community (EAC), and the Southern African Development Community (SADC) in Africa. Part II briefly restates the theoretical framework for this investigation. Parts III and IV examine, at the level of formal legal Instruments and other official documents, the use and definition of subsidiarity in the regional contexts under consideration. The final part concludes.
nehmend ins Zentrum rechts- und politikwissenschaftlicher Forschung. Die Frage,
auf welche Weise mit Konflikten zwischen unterschiedlichen Ordnungen umgegangen wird und werden sollte, steht dabei im Zentrum der Debatte. Dieser Literaturbericht diskutiert, wie unterschiedliche Stränge der Forschung in Politikwissenschaft und Völkerrecht solche Konflikte, die aus der Überlappung normativer Ordnungen entstehen, darstellen und welche Lösungsstrategien sie präsentieren. Der Artikel identifiziert dabei drei Schieflagen in der bestehenden Literatur: den Fokus auf Eindeutigkeit, die Gegenüberstellung von rechtlichen und politischen Lösungen und einen Fokus auf formalisierte Ordnungen. Darauf aufbauend wird eine Typologie zu Strategien des Umgangs mit Überlappungskonflikten vorgeschlagen: Unterschieden werden hier das Aushalten von Ambivalenz, Einzelfallentscheidungen sowie die Schaffung von Eindeutigkeit. Letztere kann in drei verschiedenen Formen – Neuordnung, Hierarchisierung oder Vereinheitlichung – auftreten. Zudem werden Forschungsperspektiven für deskriptive, kausalanalytische und normative Forschung zu Überlappungskonflikten skizziert.
annulment decisions by ICSID ad hoc committees. While the decisions disagree on what constitutes an appropriate reason for annulment under the manifest excess of powers ground, they off er doctrinally much improved approaches to the interpretation and application of both treaty exceptions and the necessity defence. Identifying the proper dividing line between permissible annulment review and impermissible appellate review in such contexts has been, and will remain, contentious, but the Sempra and Enron committees off er reasonable assessments of when an error of law becomes so grave as to result in actual failure to apply the proper law.
to include disputes of a public law nature. Yet, arbitral tribunals continue to apply
standards of review derived from the private law origins of international arbitration,
have not recognized the new public law context of these disputes, and have failed to
develop a coherent jurisprudence with regard to the applicable standard for reviewing
a state's public regulatory activities. This problematic approach is evidenced by a
recent series of cases brought by foreign investors against Argentina challenging the
economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A
comparative analysis of public law standards of review from both other international
courts and the domestic systems of the U.S. and Germany demonstrates that arbitral
tribunals have a variety of standards of review from which they could borrow to
develop a coherent jurisprudence. While any consistently applied public law standard
of review that recognizes the competing public interests at stake in this new form of
international arbitration would be preferable to the status quo, we argue that for
reasons of institutional capacity, expertise, and embeddedness, the margin of
appreciation as developed by the European Court of Human Rights may offer the best
path forward. The consistent application of a margin of appreciation when reviewing
public law regulatory activities of states would allow arbitral tribunals to grant
appropriate deference to national authorities while simultaneously protecting investor
rights, thereby helping to close the growing legitimacy gap in investor-state
arbitration.
Book Chapters by Andreas von Staden
The idea of ‘checks and balances’ plays a central role in this respect. While distinct from the doctrine of the separation of powers, its genesis and development has been so closely related to it that the two are frequently considered as being two sides of the same coin, or even synonymous. In this chapter I address select conceptual issues concerning checks and balances in global governance and provide illustrative examples as to their operation in practice. In addition, I articulate conjectures as to why horizontal checks and balances are so much rarer in global than in domestic governance, arguing, inter alia, that the vertical checks available to states as a result of the principal-agent relationship between them and the IOs in which they are members, and the dependency of the latter on states for the implementation of their decisions, provide key explanations as to why additional horizontal checks are usually perceived as unnecessary. The conclusion summarizes and points to the need to address the role of non-state actors in future research on relative authority and checks and balances beyond the state.
Other by Andreas von Staden
Books by Andreas von Staden
Papers by Andreas von Staden
organisation, unless compelling reasons argue in favour of moving decision-making
to the higher level. In the judicial field, the principle has found expression,
procedurally, in the exhaustion of domestic remedies rule and, substantively, in the
margin of appreciation and similar deference-granting doctrines. These judicial
manifestations of the subsidiarity principle should particularly likely to appear in the
context of courts exercising jurisdiction over individual human rights complaints.
This article investigates the extent to which three sub-regional courts in Africa that
shortly after their creation began to foray into the human rights domain – the
ECOWAS Community Court of Justice, the East African Court of Justice, and the
Tribunal of the Southern African Development Community – have recognised
subsidiarity as a guiding principle for the exercise of their human rights jurisdiction.
Contrary to expectations, neither the exhaustion of domestic remedies rule nor
margin-of-appreciation-type doctrines have so far played any meaningful role in the
human rights jurisprudence of the three sub-regional courts.
the allocation and exercise of political and legal authority in multilevel
governance arrangements in which at least some competences are shared
between different levels of politico–legal decisionmaking—so much so that
some have heralded, at least in Europe, an emerging “age of subsidiarity” (R. Spano)
Understood as signifying a “rebuttable presumption for the local” (A. Føllesdal) or favoring lower levels of political organization and decisionmaking more generally, much of the legal and political science literature on the topic takes its principal
theoretical and empirical cues from the experience with subsidiarity and its
cognates in European institutional contexts.
This article investigates the presence or absence of subsidiarity in select
regional economic integration organizations outside of Europe—namely, the Southern Common Market (Mercosur) and the Andean Community in Latin America, and the Economic Community of West African States (ECOWAS), the East African Community (EAC), and the Southern African Development Community (SADC) in Africa. Part II briefly restates the theoretical framework for this investigation. Parts III and IV examine, at the level of formal legal Instruments and other official documents, the use and definition of subsidiarity in the regional contexts under consideration. The final part concludes.
nehmend ins Zentrum rechts- und politikwissenschaftlicher Forschung. Die Frage,
auf welche Weise mit Konflikten zwischen unterschiedlichen Ordnungen umgegangen wird und werden sollte, steht dabei im Zentrum der Debatte. Dieser Literaturbericht diskutiert, wie unterschiedliche Stränge der Forschung in Politikwissenschaft und Völkerrecht solche Konflikte, die aus der Überlappung normativer Ordnungen entstehen, darstellen und welche Lösungsstrategien sie präsentieren. Der Artikel identifiziert dabei drei Schieflagen in der bestehenden Literatur: den Fokus auf Eindeutigkeit, die Gegenüberstellung von rechtlichen und politischen Lösungen und einen Fokus auf formalisierte Ordnungen. Darauf aufbauend wird eine Typologie zu Strategien des Umgangs mit Überlappungskonflikten vorgeschlagen: Unterschieden werden hier das Aushalten von Ambivalenz, Einzelfallentscheidungen sowie die Schaffung von Eindeutigkeit. Letztere kann in drei verschiedenen Formen – Neuordnung, Hierarchisierung oder Vereinheitlichung – auftreten. Zudem werden Forschungsperspektiven für deskriptive, kausalanalytische und normative Forschung zu Überlappungskonflikten skizziert.
annulment decisions by ICSID ad hoc committees. While the decisions disagree on what constitutes an appropriate reason for annulment under the manifest excess of powers ground, they off er doctrinally much improved approaches to the interpretation and application of both treaty exceptions and the necessity defence. Identifying the proper dividing line between permissible annulment review and impermissible appellate review in such contexts has been, and will remain, contentious, but the Sempra and Enron committees off er reasonable assessments of when an error of law becomes so grave as to result in actual failure to apply the proper law.
to include disputes of a public law nature. Yet, arbitral tribunals continue to apply
standards of review derived from the private law origins of international arbitration,
have not recognized the new public law context of these disputes, and have failed to
develop a coherent jurisprudence with regard to the applicable standard for reviewing
a state's public regulatory activities. This problematic approach is evidenced by a
recent series of cases brought by foreign investors against Argentina challenging the
economic recovery program launched after a massive financial collapse and has called into question the legitimacy of investor-state arbitration more generally. A
comparative analysis of public law standards of review from both other international
courts and the domestic systems of the U.S. and Germany demonstrates that arbitral
tribunals have a variety of standards of review from which they could borrow to
develop a coherent jurisprudence. While any consistently applied public law standard
of review that recognizes the competing public interests at stake in this new form of
international arbitration would be preferable to the status quo, we argue that for
reasons of institutional capacity, expertise, and embeddedness, the margin of
appreciation as developed by the European Court of Human Rights may offer the best
path forward. The consistent application of a margin of appreciation when reviewing
public law regulatory activities of states would allow arbitral tribunals to grant
appropriate deference to national authorities while simultaneously protecting investor
rights, thereby helping to close the growing legitimacy gap in investor-state
arbitration.
The idea of ‘checks and balances’ plays a central role in this respect. While distinct from the doctrine of the separation of powers, its genesis and development has been so closely related to it that the two are frequently considered as being two sides of the same coin, or even synonymous. In this chapter I address select conceptual issues concerning checks and balances in global governance and provide illustrative examples as to their operation in practice. In addition, I articulate conjectures as to why horizontal checks and balances are so much rarer in global than in domestic governance, arguing, inter alia, that the vertical checks available to states as a result of the principal-agent relationship between them and the IOs in which they are members, and the dependency of the latter on states for the implementation of their decisions, provide key explanations as to why additional horizontal checks are usually perceived as unnecessary. The conclusion summarizes and points to the need to address the role of non-state actors in future research on relative authority and checks and balances beyond the state.