Caroline Henckels

Dr Caroline Henckels is a Senior Lecturer in the Faculty of Law at Monash University. Caroline researches in the areas of public international law (with a focus on international economic law) and comparative public law. She is a member of the Editorial Board of the Journal of International Economic Law, UNCTAD's Transnational Corporations journal, and the Alternative Law Journal, and is an Associate Editor of the Journal of World Investment and Trade. Caroline also serves as peer reviewer for numerous academic journals.

Before joining Monash, Caroline was a Vice-Chancellor's Postdoctoral Research Fellow in Law at the University of New South Wales. She has taught law at the University of Cambridge and the University of Melbourne, and has acted as consultant to the McCabe Centre for Law and Cancer and the Human Rights Law Centre. She holds a PhD from the University of Cambridge, an LLM from the University of Melbourne and an LLB from Victoria University of Wellington. Caroline is admitted to practice law in the Australian federal, New Zealand and Victoria state jurisdictions, and practices as a Clinical Supervisor at Monash Law Clinics. 

Caroline is interested in supervising PhD and Honours students in areas including international investment law, WTO law and public law.

Publications

Monographs

Mitchell, A D, Heaton, D  Henckels C, Non-Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law (Edward Elgar, 2016)

• Reviewed in Journal of International Economic Law (2017, by M Huber)
• Reviewed in Melbourne Journal of International Law (2018, by A Shepherd & S Puig)

Henckels C, Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (Cambridge University Press, 2015)

• Cited in Greentech Energy Systems A/S, NovEnergia II Energy & Environment (SCA) SICAR and NovEnergia II Italian Portfolio SA v. The Italian Republic, SCC Case No. V 2015/095, Dissenting Opinion of Arbitrator Giorgio Sacerdoti, 5 December 2018
• Cited in Philip Morris v Uruguay, ICSID Case No. ARB/10/7, Concurring and Dissenting Opinion of Arbitrator Born, 8 July 2016
• Cited by Constitutional Court of Colombia, Decision C-157/2016, Constitutionality Review of the Free Trade Agreement between Colombia and Costa Rica
• Reviewed in Leiden Journal of International Law (2017, by C Ragni)
• Reviewed in Journal of World Investment and Trade (2016, by L Nottage)
• Reviewed in European Investment Law and Arbitration Review (2016, by D Collins)
• Reviewed in New Zealand Yearbook of International Law (2016, by C Foster) 


Chapters in edited collections

Henckels C, ‘Scope Limitation or Affirmative Defence? The Purpose and Role of Investment Treaty Exception Clauses' in L Bartels & F Paddeu (eds), Exceptions and Defences in International Law (Oxford University Press, 2019 forthcoming)

Henckels, C, ‘Private-Public Arbitration in Australia: Public Law Issues, Private Law Responses’ in S Schill (ed), The Comparative Constitutional Foundations of Public-Private Arbitration (Oxford University Press, 2019 forthcoming)

Mitchell A & Henckels C, ‘Necessary’ in A Mitchell (ed), Principles of International Trade and Investment Law (Edward Elgar, 2020 forthcoming)

Mitchell A, Heaton D & Henckels C, ‘Non-Discrimination’ in A Mitchell (ed), Principles of International Trade and Investment Law (Edward Elgar, 2020 forthcoming)

Henckels C, ‘Investment Treaty Security Exceptions, Necessity and Self-Defence in the Context of Armed Conflict’ in C Titi, K Fach Gómez & A Gourgourinis (eds), International Investment Law and the Law of Armed Conflict (Brill, 2019) 319

Henckels C, ‘The role of the standard of review and the importance of deference in investor-state arbitration’ in L Gruszczynski and W Werner (eds), Deference in International Courts and Tribunals: Standards of Review and Margin of Appreciation (Oxford University Press, 2014) 113

Henckels C, ‘Balancing investment protection and sustainable development in investor-state arbitration: the role of deference’ in A. K. Bjorklund (ed), Yearbook on International Investment Law & Policy 2012-2013 (Oxford University Press, 2014) 305

Journal articles – peer reviewed

Davison M, Henckels C & Emerton P, 'In vino veritas? The Dubious Legality of the EU’s Claims to Exclusive Use of the Term “Prosecco”' 29 Australian Intellectual Property Journal 110-126 (2019)

Henckels C, 'Dishonouring the Australian Flag' 44 Monash University Law Review (Special Issue on 'The Law of Protest') 384-401 (2019) 

Henckels C, ‘Should Investment Treaties Contain Public Policy Exceptions?’ 59 Boston College Law Review (Special Issue on 'Reforming International Investment Law') 2825-2844 (2018)

Henckels C, ‘Proportionality and the Separation of Powers in Constitutional Review: Examining the Role of Judicial Deference’ 45 Federal Law Review 181-197 (2017)

• Shortlisted for the Zines Prize for Excellence in Legal Research (2017)

Henckels C, ‘Protecting regulatory autonomy through greater precision in investment treaties: the TPP, CETA, and TTIP’ 19 Journal of International Economic Law 27-50 (2016)

Henckels C, ‘Will Greater Precision in Investment Treaties Protect the Right to Regulate? An Assessment of the TPP's Investment Chapter’ 21 New Zealand Business Law Quarterly (Special Issue on 'The Regulation of Foreign Investment') 351-370 (2015)

Henckels C, ‘Balancing investment protection and the public interest: the role of the standard of review and the importance of deference in investor-state arbitration’ 4 Journal of International Dispute Settlement 197-215 (2013)

• Cited in Antaris Solar GmbH and Dr. Michael Göde v. Czech Republic, PCA Case No. 2014-01, Dissenting Opinion of Arbitrator Born, 2 May 2018

Mitchell A D & Henckels C, ‘Variations on a theme: comparing the concept of "necessity" in international investment law and WTO law’ 14 Chicago Journal of International Law 93-164 (2013)

Henckels C, ‘Indirect expropriation and the right to regulate: revisiting proportionality analysis and the standard of review in investor-state arbitration’ 15 Journal of International Economic Law 223-255 (2012)

• Cited by Argentina in Abaclat and Others v Argentina, ICSID Case No. ARB/07/5, Respondent’s Counter-Memorial on Phase 2 submission (Procedural Order No. 18, 25 March 2013) 


Henckels C, ‘Overcoming jurisdictional isolationism at the WTO - FTA nexus: a potential approach for the WTO’ 19 European Journal of International 571-599 (2008)

Henckels C, ‘Exclusion of evidence obtained in breach of the right to privacy: will Victoria's Charter protect the rights of criminal defendants?’ 19 Public Law Review 234 (2008)

Henckels C, ‘Mandatory detention of stateless asylum seekers in Australia: would a Bill of Rights make a difference?’ 4 Human Rights Research Journal 1 (2007)

Henckels C, ‘GMOs in the WTO: a critique of the panel's legal reasoning in EC-Biotech’ 7 Melbourne Journal of International Law 278 (2006)

Henckels C, 2006, ‘The ostensible 'flexibilities' in TRIPS: can essential pharmaceuticals be excluded from patentability in public health crises?’ 32 Monash University Law Review 335 (2006)

Encyclopaedia entries

Henckels C, ‘Balancing Test (Investment Arbitration)’ in H Ruiz Fabri (ed), Max Planck Encyclopaedia of International Procedural Law (Oxford University Press, 2019 forthcoming)

Submissions

Penovic T, Sifris R & Henckels C, Submission of the Castan Centre for Human Rights Law to the New Zealand Abortion Legislation Committee, Abortion Legislation Bill 2019

Penovic T, Sifris R & Henckels C, Amicus Curiae Submission of the Castan Centre for Human Rights Law, Case M46/2018, Clubb v Edwards & Anor

• Cited in Nettle J's judgment at para 281 

Castan M & Henckels C, Submission of the Castan Centre for Human Rights Law to Senate Standing Committee on Economics Inquiry into the Census 2016 

• Cited in Committee Report at pages 29, 31–32, 34, 46

Conference presentations and lectures

Delivered

'Reimaging public policy exceptions in international trade and investment law', Leiden University, 6 December 2018 (invited speaker)

'Should Investment Treaties Contain Public Policy Exceptions?', King’s College London, 5 December 2018 (invited speaker)

'Legitimate Expectations and the Rule of Law', Investment Protection Standards and the Rule of Law Workshop, Vienna, 3 December 2018 (invited speaker)

'A Theory of Security Exceptions', Joint North American Conference on International Economic Law, Montreal, 21 September 2018

'Plain Speaking: Understanding the WTO Panel Report on Tobacco Plain Packaging', Melbourne, 20 July 2018 (with M Davison, A Mitchell, P O’Brien and J Liberman, invited speaker)

'The exception proves the rule? The role of public policy exceptions in trade and investment agreements', Society of International Economic Law Biennial Conference, Washington DC, 12 July 2018

'Hyper-legislation and deference to the executive', International Society of Public Law Conference, Hong Kong, 25 June 2018 (with J Boughey)

'Justiciable obligations of consultation and regulatory transparency in international investment law: implications for NCD risk factor regulation', International Investment Law and NCD Prevention Conference, London, 10 May 2018 (invited speaker)

'Rethinking the Role of Exceptions in Trade and Investment Agreements', Investment Law and Policy Workshop, London, 9 May 2018 (invited speaker)

‘Public-Private Arbitration and the Constitution’, University of Sydney, 19 April 2018 (invited speaker)

Commentator on Lauge Poulsen, 'Legalization, Diplomacy, and Development: Do Investment Treaties De-Politicize Investment Disputes?' University of Western Australia Symposium, 'International Commercial Dispute Resolution for the 21st Century: Australian Perspectives' Perth, 20 February 2018 (invited speaker) 

'Should investment treaties contain public policy exceptions?' Investment Law Reform Conference, Boston, 26 October 2017 (invited speaker)

 'Investment treaty exceptions and the circumstances precluding wrongfulness in the context of armed conflict', International Investment Law and the Law of Armed Conflict Colloquium, Athens, 5 October 2017 (invited speaker)

'The exception proves the rule? The role of public policy exceptions in trade and investment agreements', The New Plurilateralism: The Emerging Standard for Global Economic Governance? workshop, Warwick, 14 September 2017 

'An exotic jurisprudential pest? Building a path to proportionality review in Australian constitutional law', International Society of Public Law Annual Meeting, Copenhagen, 7 July 2017

'Does international investment law oblige governments to consult industry stakeholders when developing new laws and policies?' Trade, Investment and the Regulation of Food and Alcohol workshop, Melbourne, 13 June 2017 (invited speaker)

 'Dishonouring the Australian Flag', Law of Protest Roundtable, Melbourne, 2 June 2017

‘When the “Exception” is an Element of the Rule: The Structural Status of Investment Treaty Exceptions, Society of International Economic Law Biennial Conference, Johannesburg, 9 July 2016

‘Everyday Challenges Faced by International Arbitrators when Dealing with Uncertainty’, Australia and New Zealand Society of International Law Conference, Canberra, 30 June 2016

'Proportionality and Deference in Investor-State Arbitration', King’s College London, 20 May 2016 (invited speaker)

'Proportionality and Deference in Investor-State Arbitration', University College London, 20 May 2016 (invited speaker)

'The Foundations of Proportionality in International Investment Law', Investment Treaty Forum, British Institute of International and Comparative Law, London, 19 May 2016 (invited speaker)

'The Structural Status of Article XI of the Argentina-US BIT', International Economic Law Interest Group, Australia and New Zealand Society International Law Workshop, Auckland, 13 May 2016

'Balancing Investment Protection and Regulatory Autonomy in Investor-State Arbitration', New Zealand Centre for International Economic Law, Wellington, 12 May 2016 (invited speaker)

'Proportionality and Deference in Investor-State Arbitration', Amsterdam Centre for International Law, Amsterdam, 5 April 2016 (invited speaker)

'Proportionality and Deference in Investor-State Arbitration', Grotius Dialogue Series, Leiden, 4 April 2016 (invited speaker) 

'The Puzzling Structural Status of Exceptions Clauses in FCN and Investment Treaties', Workshop on Exceptions and Defences in International Law, Cambridge, 31 March 2016 (invited speaker) 

'Proportionality and Deference in Investor-State Arbitration', UNSW Book Forum, Sydney, 23 March 2016

'Protecting Regulatory Autonomy in Investment Treaties Through Greater Precision in Substantive Investment Protections: An Appraisal of the TPP', The Regulation of Foreign Investment Symposium, Auckland, 16 June 2015 

Roundtable on International Economic Law and Health, American Society of International Law International Economic Law Interest Group Biennial Research Conference, Denver, 15 November 2014 (invited speaker)

'Balancing investment protection and regulatory autonomy in new investment treaties: lessons from existing treaties and arbitral decisions', American Society of International Law International Economic Law Interest Group Biennial Research Conference, Denver, 14 November 2014

'Balancing Commercial and Non-Commercial Values in International Investment Treaties', European Society of International Law International Economic Law Interest Group Workshop, Vienna, 3 September 2014

'Evolution of Methods and Standards of Review in Investor-State Arbitration: Toward a More Balanced Approach in Regulatory Disputes?', Society of International Economic Law Conference, Bern, 11 July 2014 (poster presentation)

'Protecting Regulatory Autonomy in New International Investment Agreements: Rules, Standards and the TPP, TTIP and CETA', Australia and New Zealand Society of International Law Conference, Canberra, 3 July 2014

'The Purpose and Scope of National Treatment in International Investment Law: Implications for Regulatory Autonomy', Conference of the Postgraduate and Early Professionals and Academics Network of the Society of International Economic Law, Göttingen, 25 January 2013

'Balancing Investment Protection and the Public Interest: the Importance of Deference in Investor-State Arbitration', American Society of International Law International Economic Law Interest Group Conference, Washington D.C., 30 November 2012 (paper accepted for presentation)

'Balancing Investment Protection and the Public Interest: The Role of the Standard of Review and the Importance of Deference in Investor-State Arbitration', European Cooperation in Science and Technology Workshop on Standards of Review in International Courts and Tribunals, Seville, 27 October 2012

'Proportionality and the Standard of Review in Fair and Equitable Treatment Claims: Balancing Stability and Consistency with the Public Interest', Society of International Economic Law Conference, Singapore, 13 July 2012

'Tobacco Plain Packaging Legislation, International Investment Law and Protecting Public Health: An Assessment of the Philip Morris v Australia Claim', Melbourne Law School and McCabe Centre For Law and Cancer, Melbourne, 25 January 2012

'Charter Update: Momcilovic v The Queen and XYZ v Victoria Police', Victorian Government Solicitor's Office Seminar Series, Melbourne, 24 March 2010 (with C. Geiringer)

'Overcoming Jurisdictional Isolationism at the WTO – FTA Nexus', The Future of the World Trade Organization Forum, Melbourne, 1 March 2007

'The IMF’s Second Generation Initiatives: A Fig Leaf for Political Interference?' Southern Perspectives on Development, Dunedin, 1 December 2006

'Would the Australian High Court decision of Al-Kateb v Godwin have differed with a Bill of Rights?' New Zealand Bill of Rights Act Symposium, Wellington, 10 February 2006

Other contributions

Mitchell, A. D. and Henckels, C., ‘The concept of “necessity” and non-precluded measures in international investment law: three lessons from WTO tribunals’ (2013) Featured Discussion, United Nations Conference on Trade and Development Investment Policy Hub 

Bartels, L. and Henckels, C., ‘Investment and the Canada–EU Comprehensive Economic and Trade Agreement: the Oil Sands Controversy’ (2011) Canada-European Transatlantic Dialogue