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6 - Suspensive Decision-Making Authority: Deference as Deferral and Abstention

from Part II - Deference in the International Adjudication of Private Property Disputes

Published online by Cambridge University Press:  24 February 2021

Esmé Shirlow
Affiliation:
Australian National University, Canberra
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Summary

Rather than treating second-order reasons for deference as conclusive, the adjudicator could instead treat them as suspensive. Adjudicators adopt a suspensive view of domestic authority in the modes of deferral and abstention. Adjudicators adopting this view of authority refer to second order reasons for deference to justify not engaging with certain matters for a period of time (deferral) or at all (abstention). In both modes, domestic decisions are not endorsed. The adjudicator instead declines to exercise its own decision making authority in favour of the exercise of domestic decision-making authority. This is a form of ‘passive’ judicial participation. In these modes, deference is displayed by the adjudicator refraining from exercising its decision-making authority in preference to the decision-making authority of a domestic actor. The adjudicator does by declining to determine a dispute, or a particular matter in dispute, until a domestic decision maker has had an opportunity to make a decision relevant to the case (deferral) or at all (abstention).

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Judging at the Interface
Deference to State Decision-Making Authority in International Adjudication
, pp. 129 - 152
Publisher: Cambridge University Press
Print publication year: 2021

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