Judicial responses to crises measures: A post-crisis assessment

This paper analyses the judiciary’s responses to the measures imposed in addressing the adverse effects of the financial and sovereign debt crisis. It examines the jurisprudence of national courts, the Court of Justice of the EU, the European Court of Human Rights as well as awards of international arbitration tribunals that were set up under Bilateral Investment Treaties. It focuses on the impact of the recent case law on fundamental rights and judicial protection and assesses whether and to what extent courts treat the right to property differently from socioeconomic rights. It also discusses the emerging obscurity pertaining to the attribution of crisis measures. The difficulty in identifying the true (supra)national author(s) of such measures generates further uncertainty on the applicable legal restrains and the competent forum to enforce them. By reducing the judicial liability concerns, this trend empowers the executive over the legislator in the exercise of public authority.