Caroline Henckels

Assoc Professor

Accepting PhD Students

20062024

Research activity per year

Personal profile

Biography

Dr Caroline Henckels is an Associate Professor 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 public law, and has published with the European Journal of International Law, the Journal of International Economic Law, the International and Comparative Law Quarterly and Cambridge University Press, among others. She is a member of the Editorial Boards of the Journal of International Economic Law and UNCTAD's Transnational Corporations journal, a member of the International Law Association Committee on Rule of Law and International Investment Law and the UNCITRAL Working Group III Academic Forum on ISDS, and serves on the Executive Committees of the Society of International Economic Law and TradeLab. Caroline also acts as peer reviewer for numerous academic journals and book publishers. Before joining Monash, Caroline was a Vice-Chancellor's Postdoctoral Research Fellow in Law at the University of New South Wales. She has also taught law at the University of Cambridge and the University of Melbourne. 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, running the Faculty's TradeLab clinical program in international trade and investment law. 

Publications

Most of my papers can be downloaded for free here; find me on Google Scholar here

Publications

Monographs

Exceptions in International Investment Law: A Critical Analysis (Oxford University Press, 2025 forthcoming)

Non—Discrimination and the Role of Regulatory Purpose in International Trade and Investment Law (Elgar, 2016) (with A Mitchell and D Heaton) 


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

Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (Cambridge University Press, 2015, paperback edition published 2018) 


  • Cited in Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Award, 5 November 2021
  • Cited in Muszynianka v. Slovakia, PCA Case No. 2017—08, Award, 7 October 2020
  • Cited in Greentech Energy Systems v Italy, 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 Gary 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, 6 April 2016
  • Cited by Mexico in First Majestic Silver Corp v United Mexican States, Respondent’s Counter-Memorial, 25 May 2022
  • Cited by the Netherlands in RWE AG and RWE Eemshaven Holding II BV v. Kingdom of the Netherlands, ICSID Case No. ARB/21/4, Respondent’s Counter-Memorial, 5 September 2022
  • Cited by Mexico in Odyssey Marine Exploration v. United Mexican States, ICSID Case No. UNCT/20/1, Respondent Rejoinder, 19 October 2021
  • 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

‘Sustainability Obligations in Trade Agreements: Do Exceptions and Defences Apply?’ in G Vidigal and K Claussen (eds), The Sustainability Revolution in International Trade Agreements (Oxford University Press, 2024 forthcoming) (by invitation)

‘Private-Public Arbitration in Australia: Public Law Issues, Private Law Responses’ in S Schill (ed), The Comparative Constitutional Foundations of Private-Public Arbitration (Oxford University Press, 2024 forthcoming) (by invitation)

‘Legitimate Expectations and the Rule of Law in International Investment Law’ in A Reinisch and S Schill (eds), Investment Protection Standards and the Rule of Law (Oxford University Press, 2023) 43 (by invitation)

‘Necessity Testing’ in A Mitchell and E Sheargold (eds), Principles of International Trade and Investment Law (Elgar, 2021) 91 (with A Mitchell and E Sheargold) (by invitation)

‘Non-Discrimination’ in A Mitchell and E Sheargold (eds), Principles of International Trade and Investment Law (Elgar, 2021) 125 (with A Mitchell and E Sheargold) (by invitation)

‘Scope Limitation or Affirmative Defence? The Purpose and Role of Investment Treaty Exceptions’ in L Bartels and F Paddeu (eds), Exceptions in International Law (Oxford University Press, 2020) 363 (by invitation)

  • Cited by Colombia in Angel Samuel Seda and others v. Republic of Colombia, ICSID Case No. ARB/19/6, Respondent Rejoinder on Jurisdiction and Merits, 16 February 2022

‘Investment Treaty Security Exceptions and the Circumstances Precluding Wrongfulness in the Context of Armed Conflict’ in C Titi, K Fach Gómez and A Gourgourinis (eds), International Investment Law and the Law of Armed Conflict (Brill, 2019) 319 (by invitation)

‘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

‘Balancing Investment Protection and Sustainable Development in Investor-State Arbitration: The Role of Deference’ in A Bjorklund (ed), Yearbook on International Investment Law & Policy 2012—2013 (Oxford University Press, 2014) 305 


Journal articles

'Whither Security? The Concept of "Essential Security Interests" in Investment Treaties' 27 Journal of International Economic Law 114 (2024) 

’Justifying the Protection of Legitimate Expectations in International Investment Law: Legal Certainty and Arbitrary Conduct’ 38 ICSID Review 347 (2023)

‘Arbitration Under Government Contracts and Government Accountability’ 50 Federal Law Review 293 (2022)

‘The Compatibility of the EU’s Geographical Indications Regulations for Wines with the WTO Agreement on Technical Barriers to Trade’ 23 Journal of World Investment and Trade 293 (2022)

‘Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality’ 49 Federal Law Review 554 (2021) (with R Sifris and T Penovic)

‘Not all Rights are Created Equal: A Loss-Gain Frame of Investor Rights and Human Rights’ 34 Leiden Journal of International Law 93 (2021) (with T Broude)

‘Permission to Act: The Legal Character of General and Security Exceptions in International Trade and Investment Law’ 69 International & Comparative Law Quarterly 557 (2020)

‘A Duty to Consult Foreign Investors When Changing the Regulatory Framework? Implications for Non-Communicable Disease Prevention and Beyond’ 21 Journal of World Investment and Trade 698 (2020) (by invitation)

‘Advancing Reproductive Rights Through Legal Reform: The Example of Abortion Clinic Safe Access Zones’ 43 University of New South Wales Law Journal 1078 (2020) (with R Sifris and T Penovic)

‘In Vino Veritas? The Dubious Legality of the EU’s Claims to Exclusive Use of the Term “Prosecco”‘ 29 Australian Intellectual Property Journal 110 (2019) (with M Davison and P Emerton)

‘Dishonouring the Australian Flag’ 44 Monash University Law Review 384 (2019)

‘Should Investment Treaties Contain Public Policy Exceptions?’ 59 Boston College Law Review 2825 (2018) (by invitation)

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

  • Shortlisted for the Leslie Zines Prize for Excellence in Legal Research

‘Protecting Regulatory Autonomy Through Greater Precision in Investment Treaties: The TPP, CETA, and TTIP’ 19 Journal of International Economic Law 27 (2016)

‘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 351 (2015) (by invitation)

‘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 (2013) 


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

‘Variations on a Theme: Comparing the Concept of “Necessity” in International Investment Law and WTO Law’ 14 Chicago Journal of International Law 93 (2013) (with A Mitchell)

‘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 (2012)

  • Cited in UP (formerly Le Chèque Déjeuner) and C.D Holding Internationale v. Hungary, ICSID Case No. ARB/13/35, Award, 9 October 2018
  • Cited by Argentina in Abaclat and Others v Argentina, ICSID Case No. ARB/07/5, Respondent’s Counter-Memorial on Phase 2 Submission (referred to in Procedural Order No. 18, 25 March 2013) 


‘Overcoming Jurisdictional Isolationism at the WTO-FTA Nexus: A Potential Approach for the WTO’ 19 European Journal of International 571 (2008) 


  • Cited by the Czech Republic in WCV Capital Ventures Cyprus Limited and Channel Crossings Limited v. Czech Republic, PCA Case No. 2016-12, Respondent’s Statement of Defence and Memorial on Non-Bifurcated Objections to Jurisdiction, 16 October 2018 (referred to in Second Interim Award on Intra-EU Objection, 29 September 2020)

‘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)

‘Mandatory Detention of Stateless Asylum Seekers in Australia: Would a Bill of Rights Make a Difference?’ 4 Human Rights Research Journal 1 (2007) 


‘GMOs in the WTO: A Critique of the Panel’s Legal Reasoning in EC—Biotech’ 7 Melbourne Journal of International Law 278 (2006) 


‘The Ostensible “Flexibilities” in TRIPS: Can Essential Pharmaceuticals be Excluded from Patentability in Public Health Crises?’ 32 Monash University Law Review 335 (2006)

Reference works

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

Editorials and edited journal issues

‘Mapping the Terroir: Introducing Geographical Indications and Wine’, Special Issue: Geographical Indications and Wine, 23 Journal of World Investment and Trade 175 (2022) (with L Spagnolo)

‘The Rise of Preferential Agreements in Global Economic Governance: An Introduction’, Special Issue: The Rise of Preferential Agreements in Global Economic Governance, 20 Journal of World Investment and Trade 629 (2019) (with M Wagner)

Commissioned reports

The European Union’s Attempts to Limit the Use of the Term ‘Prosecco’, Wine Federation of Australia, 2023 (with M Davison, M Paterson and L Spagnolo)

Submissions

Amicus curiae submissions

Amicus Curiae Submission of the Castan Centre for Human Rights Law, High Court of Australia, Case M46/2018, Clubb v Edwards & Anor (2018) (with T Penovic and R Sifris)

  • Cited in Clubb v Edwards & Anor [2019] 267 CLR 171 (Nettle J)
  • Cited by Supreme Court of Victoria, Clubb v Edwards & Anor[2020] VSC 49

Law reform submissions

Submission to the DFAT Review of Australia’s Bilateral Investment Treaties (2020) (with E Laryea, A Mitchell and T Sharmin)

Submission of the Castan Centre for Human Rights Law to the New Zealand Abortion Legislation Committee, Abortion Legislation Bill 2019 (2019) (with T Penovic and R Sifris)

Submission of the Castan Centre for Human Rights Law to Senate Standing Committee on Economics Inquiry into the Census 2016 (2016) (with M Castan)

Conference, workshop and seminar presentations

‘The Legal Character of Investment Treaty Exceptions’, Society of International Economic Law Biennial Conference, Universidad Externado de Colombia, 14 July 2023 (by invitation)

‘Essential Security Interests in Investment Treaties’, Society of International Economic Law Biennial Conference, Universidad Externado de Colombia, 13 July 2023

‘The Metaphor of Dialogue and Investor-State Dispute Settlement’, iCourts, University of Copenhagen, 31 March 2023 (by invitation)

‘The Metaphor of Dialogue and Investor-State Dispute Settlement’, International and Comparative Legal Studies Research Group Research Symposium, La Trobe University, 5 December 2022

‘The Metaphor of Dialogue and Investor-State Dispute Settlement’, International Economic Law and Policy Forum, King’s College London, 23 November 2022 (by invitation)

‘Sustainability Obligations in Trade Agreements: Do Exceptions and Defences Apply?’ University of Amsterdam, 18 November 2022 (by invitation)

‘The Metaphor of Dialogue and Investor-State Dispute Settlement’, Grotius Dialogue Series, Leiden University, 17 November 2022 (by invitation)

‘The Metaphor of Dialogue and Investor-State Dispute Settlement’, University of Arizona, 26 September 2022 (by invitation)

‘The Exception Proves the Rule? The Role of General and Security Exceptions’, University of Arizona, 26 September 2022 (by invitation)

‘Climate Change and Investment Treaties’ Security Exceptions: Does the Concept of ‘Essential Security Interests’ Include Climate Security?’ American Society of International Law International Economic Law Interest Group Biennial Conference, Texas A&M University, 23 September 2022

‘Should Regional Preferential Trade Agreements and International Investment Agreements Contain National Security Exceptions?’ United Nations University Institute on Comparative Regional Integration Studies, 7 December 2021 (online; by invitation)

‘Investor Rights? A Hohfeldian Analysis of Investor Entitlements in International Investment Law’, Society of International Economic Law Biennial Conference, University of Bocconi, 8 July 2021 (online)

‘The Compatibility of the EU’s Geographical Indications Regulations for Wines with the WTO Agreement on Technical Barriers to Trade’, Workshop on Geographical Indications for Wines in TRIPS and Free Trade Agreements, Monash University, 14 April 2021 (online)

‘Legitimate Expectations and the Rule of Law in International Investment Law’, American Society of International Law International Economic Law Interest Group Meeting, University of Miami, 14 February 2020

‘A Theory of Security Exceptions’, European Society of International Law International Economic Law Interest Group and Amsterdam Center for International Law Conference, International Economic Law and Security Interests, University of Amsterdam, 14 November 2019

‘Not all Rights are Created Equal: A Loss-Gain Frame of Investor Rights and Human Rights’, American Society of International Law Research Forum, Brooklyn Law School, 9 November 2019 (with T Broude)

‘Protecting Regulatory Space through Exceptions in Southeast Asian Investment Treaties’, Universitas Indonesia, 28 October 2019 (by invitation)

‘Reimagining Public Policy Exceptions in WTO 2.0’, King’s College London, 19 October 2019 (with E Sheargold; by invitation)

‘Not all Rights are Created Equal: A Loss-Gain Frame of Investor Rights and Human Rights’, PluriCourts, University of Oslo, 5 September 2019 (with T Broude)

‘Reimaging Public Policy Exceptions in International Trade and Investment Law’, Grotius Dialogue Series, Leiden University, 6 December 2018 (by invitation)

‘Should Investment Treaties Contain Public Policy Exceptions?’, International Economic Law and Policy Forum, King’s College London, 5 December 2018 (by invitation)

‘Legitimate Expectations and the Rule of Law’, Investment Protection Standards and the Rule of Law Workshop, University of Vienna, 3 December 2018 (by invitation)

‘A Theory of Security Exceptions’, Joint North American Conference on International Economic Law, McGill University, 21 September 2018

‘Plain Speaking: Understanding the WTO Panel Report on Tobacco Plain Packaging’, Melbourne Law School, 20 July 2018 (with M Davison, A Mitchell, P O’Brien and J Liberman; by invitation)

‘The Exception Proves the Rule? The Role of Public Policy Exceptions in Trade and Investment Agreements’, Society of International Economic Law Biennial Conference, American University Washington College of Law, 12 July 2018

‘Hyper-Legislation and Deference to the Executive’, International Society of Public Annual Meeting, University of Hong Kong, 25 June 2018 (with J Boughey)

‘Justiciable Obligations of Consultation and Regulatory Transparency in International Investment Law: Implications for Non-Communicable Disease Risk Factor Regulation’, International Investment Law and Non-Communicable Disease Prevention Conference, University of Liverpool, 10 May 2018 (by invitation)

‘Rethinking the Role of Exceptions in Trade and Investment Agreements’, International Economic Law and Policy Forum, University College London, 9 May 2018 (by invitation)

‘Public-Private Arbitration and the Constitution’, University of Sydney, 19 April 2018 (by invitation; commentator: former Chief Justice, the Hon Robert French AC)

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

‘Should Investment Treaties Contain Public Policy Exceptions?’, Investment Law Reform Conference, Boston College, 26 October 2017 (by invitation)

‘Investment Treaty Exceptions and the Circumstances Precluding Wrongfulness in the Context of Armed Conflict’, International Investment Law and the Law of Armed Conflict Colloquium, National and Kapodistrian University of Athens, 5 October 2017 (by invitation)

‘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, University of 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, University of 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 Law School, 13 June 2017 (by invitation)

‘Dishonouring the Australian Flag’, Law of Protest Roundtable, Monash University, 2 June 2017 (by invitation)

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

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

‘Proportionality and Deference in Investor-State Arbitration’, King’s College London, 23 May 2016 (by invitation)

‘Proportionality and Deference in Investor-State Arbitration’, International Economic Law and Policy Forum, University College London, 20 May 2016 (by invitation)

‘The Foundations of Proportionality in International Investment Law’, British Institute of International and Comparative Law, Investment Treaty Forum Public Conference, The Role of Proportionality in International Investment Law, London, 19 May 2016 (by invitation)

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

‘Balancing Investment Protection and Regulatory Autonomy in Investor-State Arbitration’, New Zealand Centre for International Economic Law, Victoria University of Wellington, 12 May 2016 (by invitation)

‘Proportionality and Deference in Investor-State Arbitration’, Amsterdam Center for International Law, University of Amsterdam, 5 April 2016 (by invitation)

‘Proportionality and Deference in Investor-State Arbitration’, Grotius Dialogue Series, Leiden University, 4 April 2016 (by invitation)

‘The Puzzling Structural Status of Exceptions Clauses in FCN and Investment Treaties’, Lauterpacht Centre for International Law, Exceptions and Defences in International Law Workshop, University of Cambridge, 31 March 2016 (by invitation)

‘Proportionality and Deference in Investor-State Arbitration’, University of New South Wales, 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, University of Auckland, 16 June 2015 (by invitation)

Roundtable on International Economic Law and Health, American Society of International Law International Economic Law Interest Group Biennial Conference, University of Denver, 15 November 2014

‘Balancing Commercial and Non-Commercial Values in International Investment Treaties’, European Society of International Law International Economic Law Interest Group Workshop, University of 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 Biennial Conference, University of 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, Australian National University, 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, University of 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, George Washington University, 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’, Standard of Review in International Courts and Tribunals: Rethinking the Fragmentation and Constitutionalization of International Law Workshop, University of 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 Biennial Conference, National University of 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, 25 January 2012 


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


‘The IMF’s Second Generation Initiatives: A Fig Leaf for Political Interference?’ Southern Perspectives on Development Conference, University of Otago, 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, Victoria University of Wellington, 10 February 2006

 

Expertise related to UN Sustainable Development Goals

In 2015, UN member states agreed to 17 global Sustainable Development Goals (SDGs) to end poverty, protect the planet and ensure prosperity for all. This person’s work contributes towards the following SDG(s):

  • SDG 3 - Good Health and Well-being
  • SDG 10 - Reduced Inequalities
  • SDG 16 - Peace, Justice and Strong Institutions

Collaborations and top research areas from the last five years

Recent external collaboration on country/territory level. Dive into details by clicking on the dots or