By: Vincent Martenet
This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or part of the following lines may be appropriate: When (i) in light of the applicable methods and canons of construction, a statute allows a
margin of interpretation, (ii) the administrative interpretation of the statute remains within this margin, and (iii) the applicable international, constitutional, statutory or other constraints permit or, at least, do not exclude judicial deference either generally or in the case at hand, then courts may or, depending on the country, must defer to the administrative interpretation of the statute, especially when or, depending on the country, provided that (iv) this interpretation requires non-legal expertise, (v) the administrative body enjoys an asymmetry of such expertise as compared to courts, and (vi) the legislature was or should have been aware of both this necessity and this asymmetry. The level of courts’ expertise in the relevant subject-matter should, in principle, be determined after taking account of the measures available to judges, including the appointment of experts. The proposed test may notably be followed where the disputed interpretation requires a prediction, appraisal or assessment.