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

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.

Esmé Shirlow is an Associate Professor at the Australian National University (ANU). She has served as an assistant to a number of investment treaty tribunals, and advises parties to investment treaty claims and in proceedings before the International Court of Justice. Prior to joining the ANU, she worked in the Australian Government's Office of International Law. Dr. Shirlow completed her PhD as a Dickson Poon Scholar at King's College London, for which she was awarded the King's Elsevier Outstanding PhD Thesis Prize. She completed her LL.M. at the University of Cambridge, where she was awarded – among other prizes – the BRD Clarke Prize for Best Overall Performance in the LL.M., the Clive Parry Prize for Best Result in International Law, and the Whewell Scholarship in International Law.