Adjudication, Arbitration and the Turn to Public Law 'Standards of Review': Putting the Precautionary Principle in the Crucible

Abstract

There is a particular pressure for international judges and arbitrators to turn to public law ‘standards of review’ in health and environmental disputes, because they raise sensitive issues of domestic regulatory autonomy. Often, these cases may also involve scientific uncertainty as to the facts, further encouraging a turn to ‘standards of review’ which will excuse arbitrators and judges from having to ascertain both scientific fact and factual questions of the motives behind States’ regulatory measures. This article investigates the argument that arbitrators and judges might instead turn to public international law considerations, such as the precautionary principle. The article demonstrates how greater reference to the precautionary principle is an alternative to reliance on ‘standards of review’ in appropriate cases in investment treaty arbitration, WTO dispute settlement, the International Court of Justice and under the United Nations Convention on the Law of the Sea. Greater reliance on public international law considerations such as the precautionary principle will help to reinforce international law as a vehicle for controlling and influencing the State in relation to shared international problems, and help keep States on the pathway towards the realization of common ends through international law.