Legitimate Expectations and the Rule of Law in International Investment Law

August Reinisch and Stephan Schill (eds), Investment Protection Standards and the Rule of Law (2020 Forthcoming)

Monash University Faculty of Law Legal Studies Research Paper No. 3409086

17 Pages Posted: 24 Jun 2019 Last revised: 12 Aug 2019

See all articles by Caroline Henckels

Caroline Henckels

Monash University - Faculty of Law

Date Written: June 24, 2019

Abstract

The rule of law is one of the yardsticks by which both critics of and apologists for international investment law evaluate the regime, but it has been thus far insufficiently theorised. This paper offers some thoughts on how the concept of the rule of law might be deployed to justify and delimit the contours of legitimate expectations in international investment law. The paper deliberately adopts a formal, largely Razian approach to the rule of law, focusing on two of its dimensions: legal certainty and the prohibition on arbitrariness. It argues that legal certainty provides the most compelling justification for the recognition of legitimate expectations in international investment law, when compared to other rationales emerging from investment tribunals and the literature. The paper analyses four common types of government action at issue in investment cases through the lens of legal certainty, arguing that the strength of the claim for recognition of legitimate expectations depends on the government conduct at issue, with government interference with legal rights or formal decisions generating the strongest claim for protection, and changes to the extant legal framework generating the weakest claim. The paper then identifies the prohibition on arbitrary conduct as the touchstone for protection of legitimate expectations, explains how these two elements of the legal test fit together, and suggests that this interpretation accords with evolving state practice in treaty design, and more recent tribunal decisions concerning legitimate expectations.

Keywords: Legitimate expectations, international investment law, fair and equitable treatment, legal certainty, arbitrariness, rule of law, Raz

JEL Classification: K33

Suggested Citation

Henckels, Caroline, Legitimate Expectations and the Rule of Law in International Investment Law (June 24, 2019). August Reinisch and Stephan Schill (eds), Investment Protection Standards and the Rule of Law (2020 Forthcoming); Monash University Faculty of Law Legal Studies Research Paper No. 3409086. Available at SSRN: https://ssrn.com/abstract=3409086 or http://dx.doi.org/10.2139/ssrn.3409086

Caroline Henckels (Contact Author)

Monash University - Faculty of Law ( email )

Wellington Road
Clayton, Victoria 3800
Australia

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