A Comparative Approach of the National Margin of Appreciation Doctrine Before the ECtHR, Investment Tribunals and WTO Dispute Settlement Bodies

Abstract

The paper proposes a critical appraisal of the possibility of transposing the national margin of appreciation doctrine as developed in the ECtHR case law to the WTO dispute settlement system on the one hand and to investor-State arbitration on the other. For that purpose, the analysis first establishes the difference between the doctrine and the concept of national margin of appreciation which takes into account many situations that would otherwise be misleading. The paper then looks at the functional nature of the doctrine within the case law of the ECtHR to conclude that it acts as a “softener” of the otherwise stringent proportionality analysis test. While the observation of the case law in WTO and international investment law shows that there is currently little room for the transposition of the doctrine to these areas, the paper looks at possible theoretical explanations for such a state of the law which seems to be due to both structural differences and political contingencies.

Keywords: Margin of appreciation, standard of review, doctrine, concept, proportionality, fragmentation, investments, WTO