Charting the Wrong Course: The Doctrine of Legitimate Expectations in Investment Treaty Law
58 Pages Posted: 6 Mar 2011
Date Written: March 3, 2011
The doctrine of legitimate expectations, an administrative law concept found in a number of domestic law jurisdictions, has been incorporated into investment treaty law jurisprudence as a general principle of law. The general principles of law are a source of international law derived from Art. 38.1(c) of the ICJ Statute. Their content is determined by comparing national legal practices and extracting standards common to all (or most) national legal systems. To date, investment tribunals have failed to comprehensively examine the practices of domestic jurisdictions that recognize the doctrine of legitimate expectations when determining the scope of the doctrine. Specifically, tribunals have adopted an approach to the doctrine which recognizes a substantive legitimate expectation. This approach gives tribunals the jurisdiction to review the content of administrative decisions. In contrast, many domestic legal systems consider the doctrine as only providing procedural protection, limiting the review power of courts to the examination of how administrative decisions were adopted. This marks a failure by investment tribunals to consider the reasons why this approach is rejected in so many other jurisdictions.
This paper examines the domestic sources of the doctrine of legitimate expectations in order to evaluate whether investment treaty tribunals are justified in interpreting the doctrine to include substantive expectations. It concludes that recognizing substantive expectations as part of the general principles of law is at this point premature and amounts to a misstatement of a general principle of law. Instead, I argue that the solution to this problem is found in the emergence of a body of case law that has integrated a ‘balancing test’ when considering legitimate expectations.
Keywords: investment treaty law, investment treaty jurisprudence, legitimate expectations, public law
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