“A Margin of Appreciation”: Appreciating Its Irrelevance in International Law

• Gary Born, Danielle Morris
• 5.5.2020

Partners Gary Born and Danielle Morris and Associate Stephanie Forrest have co-authored an article in the latest volume of Harvard International Law Journal.

The article, titled “A Margin of Appreciation”: Appreciating Its Irrelevance in International Law considers the origins, applications and subsequent rejection of the margin of appreciation doctrine by international courts and tribunals.  In summary, the article considers the decisions of a handful of investment tribunals, which have transposed the margin of appreciation from the European human rights context into international investment law. The article argues that, in these few instances, the margin has been applied by tribunals without meaningful explanation of the doctrine’s relevance and without regard to the historical development—and limitations—of the doctrine. The article concludes by arguing that there is no generally applicable margin of appreciation in international investment law or international law more generally and advocates instead for an approach that takes into account the text, object and purposes of investment treaties.