Chapter 4 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in the International Court of Justice (ICJ)’s environmental case law. The ICJ has repeatedly adapted aging treaty frameworks given relevant developments in international law and has also faced the problem of change in relevant facts. While the terminology of a standard of review is not firmly established in the ICJ’s case law, the underlying functional problem – concerning the intensity of an international tribunal’s scrutiny of determinations made by domestic authorities – is clearly present. Although three-step proportionality analysis is not entrenched in the ICJ’s case law, the Court has repeatedly used a reasonableness-based test that operates similarly to least restrictive means testing. Finally, the ICJ often adjudicates in a forward-looking, facilitative manner, seeking to assist the parties to manage their relationship after adjudication. Throughout, the chapter reflects on how the ICJ’s practices are shaped by its institutional features, such as its lack of any compulsory jurisdiction.

Chapter 1 introduces the questions the book focuses on and explains its key contributions to literature on international adjudication. It introduces the three challenges facing international tribunals analysed throughout the book: managing change in applicable law or relevant facts, determining the appropriate standard and method of review when scrutinising State conduct for compliance with international law, and contributing to broader processes of dispute resolution. The chapter explains why the book focuses on environmental disputes, as such disputes lack a dedicated tribunal and are litigated across various regimes, and how it defines such disputes. It also justifies the choice of the four adjudication contexts focused upon (adjudication in the World Trade Organization, the UN Convention on the Law of the Sea, the International Court of Justice, and under investment treaties). The chapter also notes certain insights the book incorporates from methodological debates in comparative law, given its focus on identifying and explaining similarities and differences in how the three selected challenges are managed across the four adjudication contexts studied.

Chapter 3 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in the environmental case law of the International Tribunal for the Law of the Sea (ITLOS) and arbitral tribunals constituted under the UN Convention on the Law of the Sea (UNCLOS). UNCLOS tribunals have often interpreted the Convention in a manner that takes account of relevant developments in international law. This is partly due to features of UNCLOS itself, including that it contains many generic or open-ended terms. The chapter demonstrates that the standard and method of review are significant issues in the environmental case law of UNCLOS tribunals, in the context of the Convention conferring on coastal States discretionary powers. These issues raise similar functional questions to those seen in the other adjudication contexts studied, for example regarding the rationales for some deference to domestic authorities. Finally, the chapter demonstrates that UNCLOS tribunals often adjudicate in a facilitative, forward-looking manner, aiming to assist the parties to rebuild their relationship.

Chapter 6 draws together and extends the comparative analysis that has unfolded across the prior chapters. It explains why tribunals’ practices differ across the regimes studied, focusing on contextual differences between the selected tribunals. It also assesses to what extent the practices of the selected tribunals provide insights into wider problems facing international adjudication and legal techniques that are potentially transferable across contexts. Structurally, the chapter discusses consecutively my findings in relation to the three challenges confronting international tribunals analysed throughout the book: managing changes in international law or relevant facts, calibrating the appropriate standard and method of review when scrutinising State conduct for compliance with international law, and contributing to broader processes of dispute resolution. The chapter finishes with some final remarks that close the book, concerning its contribution to our understanding of the role of international adjudication in contemporary international law and its implications for future studies in this field.

Chapter 2 analyses the three selected challenges facing international tribunals – managing change, reviewing State conduct for compliance with international law, and dispute resolution – in World Trade Organization (WTO) adjudication, focusing on environmental disputes. WTO tribunals have often been faced with potential changes in international legal norms or changes in relevant facts. The chapter analyses the approach to the standard of review developed under the Agreement on the Application of Sanitary and Phytosanitary Measures. While this approach avoids WTO adjudicators determining questions of scientific correctness, it requires them to decide what counts as an adequate risk assessment process. The chapter then analyses the necessity tests developed by WTO adjudicators for scrutinising measures that pursue a permissible regulatory aim but also restrict a treaty-protected interest in trade liberalisation. Finally, the chapter interrogates an aspect of the WTO’s ‘chapeau jurisprudence’ that many commentators have read as a desirable example of international tribunals engaging in a procedural form of scrutiny and pushing regulating States to consider affected foreign interests.

Chapter 5 investigates the availability of external review under the new economic governance of the Eurozone. It shows that the transformation of the EU’s powers in the economic and fiscal fields have not come together with a parallel intensification of judicial scrutiny by the Court of Justice. It also finds that, considering the Court’s current case law and the conceptual frameworks that continue to structure its action (starting with the concepts of challengeable act and legal effects or the rules on standing) a shift in approach is quite unlikely. The result is a profound disconnect between the evolving nature of law and governance in the realm of EU economic policy and its judicial apprehension by the Court of Justice, an inappropriate level of review and a widening accountability gap. It notes that several bodies have sought to instil a certain dose of review, without compensating the lack of judicial review however. It enjoins the Court to lift the constitutional uncertainty produced by the new economic governance of the Eurozone, to come to terms with what standard economic governance has progressively become and to make sure that supranational judicial scrutiny keeps up with the evolving powers of the EU.

The chapter proposes a novel interpretative account that functionally constructs the UNCLOS requirement of ship manning. The legal rationale underlying the argument in favor of functional flexibility is informed by the international regulatory developments at the level of the International Maritime Organization and considers that technological progress is best served by the emerging law-making philosophy of setting goal-based standards. The posited methodology further proposes that the functional interpretation of manning shall be linked to a test for reviewing the flag state margin of discretion in the context of the obligation to take measures toward achieving and maintaining comprehensive safety at sea for autonomous ships.

This chapter discusses the rules and procedures governing evidence and burden of proof in WTO dispute settlement proceedings. The chapter explains that the WTO follows the normal rule that a party asserting a fact or claim bears the burden of establishing that fact or claim. The chapter discusses the types of evidence that may be submitted in WTO dispute settlement proceedings, including through the use of experts (particularly in cases involving SPS measures). The chapter examines the standard of review used in WTO dispute settlement proceedings. The chapter also discusses the special rules governing confidential information, including the rules governing so-called "business confidential information" and other categories of very sensitive information.

This chapter argues that corporate law is unique in a way that is not widely recognized, and is not unique in the way it is widely thought to be. First, unlike other fields of law where fiduciary obligations play a key role, in corporate law, not one, not two, but three distinct actors owe fiduciary duties—executive officers, directors, and controlling shareholders. The beneficiaries of those actors' duties, the reasons for imposing duties, and the scope and demands of fiduciary duties differ for the three actors. Thus, there is not a singular duty of care and loyalty in Delaware corporate law, but multiple variations of those duties owed by multiple actors. Delaware has a law of fiduciaries, not a fiduciary law. Second, this chapter challenges the supposed standard of conduct-standard of review divergence first hailed in 1993 by Professor Melvin Eisenberg as unique to corporate law.The construct was descriptively inaccuratewhen Professor Eisenberg first wrote, it has been little used by the Supreme Court since then, and the standards often converge rather than diverge.

Except as otherwise provided herein, the Dispute Settlement Understanding is applicable to consultations and the settlement of disputes under this Agreement.

Asian economies are attempting to (re)balance their interests in fostering burgeoning outbound investment and attracting inbound investment, while preserving appropriate regulatory autonomy, while maintaining an attractive environment for foreign investors. To understand the issues and the likely future trajectory for international investment law in the region, this chapter first introduces Poulsen’s comprehensive recent study focusing on the experiences of developing countries world-wide, but including analyses of several Asian states (as outlined in Part 2 below). Despite marshalling powerful arguments and evidence for manifestations of ‘bounded rationality’ in BIT negotiations and drafting, some limits to his theory are suggested by a closer analysis of several countries in the region (Part 3). Given such historical experiences, it seems premature to abandon altogether the current treaty protection regime. Nonetheless, a combination of new approaches is worth considering under existing treaties, including more principled use of proportionality testing and deference to host state decision-making (Part 4.1). Greater care is also needed when assessing the net benefits from entering into new treaties, including the latest research into whether investor-state dispute settlement provisions lead to significantly greater cross-border investment (Part 4.2).

This chapter maps the reasons why scientific arguments do not lend themselves to straightforward judicial appraisal. The study identifies epistemic, doctrinal, and legitimacy challenges, which generate difficulties in using science in an adjudicatory setting. Epistemic challenges stem from the fact that science and law are both capable of lending cognitive authority to knowledge claims, and these authorities may be in conflict with each other. Doctrinal challenges emerge from the fundamental differences in the ways in which law and science conceive basic concepts and their different levels of tolerance towards probabilistic evidence and uncertainty. Legitimacy challenges entail difficulties for judges to preserve their monopoly over the resolution of disputes and to select the appropriate rationality to justify their reasoning. This chapter also introduces the analytic framework of the book, which is designed to evaluate the varied judicial reactions given to the intrusion of science into the adjudicatory process. It therefore introduces and discusses the framing of disputes, the scientific fact-finding process, the causal inquiry, and the standard of review.

This chapter provides a comprehensive classification of the adjudicatory techniques identified in previous analytical chapters. As no unified approach manifests in the adjudicatory landscape with respect to handling scientific knowledge, the chapter discerns two parallel trends in the scientific engagement of major international fora. Certain practices impede or even preclude the intrusion of science into adjudicatory assessment and thereby downplay the role of science in the judicial inquiry; while others aim to incorporate scientific knowledge in the judicial analysis. The chapter provides a typology of judicial techniques that serve either to downplay science or to integrate it in the judicial analysis in terms of the framing of disputes, the process of fact-finding, the causal inquiry, and the standard of review. The comparative analysis also includes references to quasi-adjudicatory solutions of the UN Compensation Commission, and the US – Marshall Islands Nuclear Claims Tribunal. It also addresses good practices from domestic climate change litigation case law and US toxic tort jurisprudence to provide good practices of conducting a science-intensive judicial inquiry.

This chapter first identifies five entry points for science in environmental investment disputes. It continues with analysing framing techniques of both litigants and arbitrators that aim to strategically manage the science-intensity of the legal inquiry. The chapter discusses varied scientific fact-finding methods of investment tribunals. Despite that party-submitted evidence dominates investment arbitration, on rare occasions panels appoint independent experts. As to causal inquiry, the chapter discusses that open causal assessments remain a rarity in arbitral practice, though science-based causal nexus increasingly gains relevance in environmental disputes. As to the standard of review, arbitral tribunals are generally deferential towards the scientific claims of host states. Yet they design different standards to review the scientific basis of host states' risk regulatory measures, for instance, some focus on the transparency of the regulatory process, while others rely on regulatory trends of other states. This chapter concludes with analysing and comparing the various standards of review applied in science-intensive investment arbitral proceedings.