The concept of legitimate expectations

Directive on Nigerian culture i. Obligation of mass media j. Duties of the citizen. In English lawthe concept of legitimate expectation arises from administrative lawa branch of public law.

The concept of legitimate expectations

Introduction As compared with case-law of the investor-state arbitration, the jurisprudence of the European Court of Human Rights ECHR evolved long before the emergence The concept of legitimate expectations foreign investment disputes.

Substantive Legitimate Expectations in Administrative Law | Chaminda Jayasinghe -

Thus, practice of the ECHR is The concept of legitimate expectations more developed, with concepts reaching almost every aspect of human life, including the conduct of business and protection of proprietary rights. Taking into account the authoritative nature of decisions of the ECHR, the latter could become an additional instrument in the argumentation toolkit for both, the investors and the host states.

As it can be observed from the emergence of scholarly discussions on the topic, principles of the ECHR could be applied in future investment disputes. Therefore, it is inevitable that concepts already evolved in the investor-state arbitrations would need to be compared and assessed through the prism of concepts established in the context of human rights.

Since the main concern of the investor-state arbitration is related mainly with property rights, Article 1 of Protocol No. This article aims to compare a very narrow aspect which is found in both, case-law of the investor-state arbitration and in the practice of the ECHR — protection of legitimate expectation in the context of proprietary rights.

Subsequently, the question which will be analyzed therein is whether there is a substantial difference between the concept of protection of legitimate expectation in the investor-state disputes and the ECHR, and could the latter supplement the principles established in foreign investment disputes.

Legitimate Expectation in Investor-State Arbitration The principle of protection of legitimate expectation was invoked in a great number of investment arbitrations and case-law that evolved over the years provides for clearly defined features [1].

Firstly, it must be noted that the concept of legitimate expectation is regarded as one of the most important parts of the fair and equitable treatment standard FET [2]as it was stated by the Saluka tribunal: One of the most authoritative definition of the latter was brought by the Tecmed Tribunal which was followed by numerous subsequent Awards [7]: The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations.

Thus, the investors would need to show that they had a legitimate expectation that such rights and state representations will be protected [11]. It should be noted also that is was established by the Tecmed Tribunal that there is no obligation for the investor to prove that such a breach of legitimate expectation caused the investor any damage [12].

As for other features of the concept, an example can be brought by the Metalclad [13] Tribunal which dealt with a construction permit for a landfill and found that the Town Council denied the permit for reasons which included, but may not have been limited to, the opposition of the local population.


The investor argued that it was led to believe, and did believe, that the federal and state permits allowed for the construction and operation of the landfill. Thus, the Tribunal stated that the investor was entitled to rely on the representations of federal officials and to believe that it was entitled to continue its construction while following the advice of these officials, and filing the municipal permit application the investor was merely acting prudently and in the full expectation that the permit would be granted.

The totality of these circumstances demonstrated a lack of orderly process and timely disposition in relation to an investor of a Party acting in the expectation that it would be treated fairly and justly.

Therefore, it can be observed that simple representations of the federal government could act as a basis for the investor to argue that the host state broke its promise [14]. Another, example can be illustrated by the Eureko v Poland [15] Tribunal which found that the host state broke its promise to the investor when the state refused to sell shares to the investor as it had previously agreed.

The Tribunal held that the state breached the basic expectation of the investor which was the basis of its investment. However, it should be noted that investment Tribunals had emphasized that the breach of FET standard should not be confused with obligations arising under commercial contracts concluded by the state and the investor.

The Tribunal in Sempra v Argentine held: Where there was business certainty and stability, there is now the opposite.

The tariff regime speaks for itself in this respect. A long-term business outlook has been transformed into a day-to-day discussion about what is next to come. The guarantees given are no longer available. The Respondent might be right in distinguishing this case from the situations that recent decisions had in view, but this does not mean that the present conditions are consistent with the meaning of the protection granted under the Treaty.

Legitimate expectation - Wikipedia

Therefore, as it can be observed from the above, the concept of protection of legitimate expectation would be usually assessed on a case-by-case basis and principles established in the context thereof could rarely be applied universally [23].

However, it should be noted that scholars and practitioners agree that one of the key features which should be taken into account while assessing the violation of the protection of legitimate expectation is that protected expectations must rest on the conditions as they exist at the time of the investment [24].

For example, the Tribunal in Duke Energy v Ecuador [25] emphasized the importance of conditions offered by the host state when making an investment: The Tribunal acknowledges that such expectations are an important element of fair and equitable treatment. At the same time, it is mindful of their limitations.

However, it must be noted that practice of the Court on the matter had provided for a far more accurate approach. Similar approach was also taken towards the legitimate expectation. For example, in the Gratzinger and Gratzingerova v. The Court held that applicants had no legitimate expectation that their claim would be determined in their favor.

The latter decision illustrates that there is no legitimate expectation to a future loss of earnings, since A1P1 only applies to existing possessions [31] which would include income once it has been earned or where an enforceable claim to it exists [32].

The concept of legitimate expectations

Similarly, it was stated in Malhous v. It can be observed that these standards are not totally different from the ones established in the practice of investor-state arbitration. However, it could be argued that faced with similar situation, the arbitral tribunal in Eureko v Poland could have found that a legitimate expectation also applies to not yet existent or pre-existent possessions [35].

Similar conclusion was brought in Anheuser-Busc v. However, it should be noted that there were cases where the ECHR also stated that it was primarily for the national authorities, notably the courts, to resolve problems of the interpretation of domestic legislation [40]. The case concerned a lease contract where the applicant had leased land from a local authority for a period of 22 years on payment of an annual ground rent with an option to renew the lease for a further period at the expiry of the term and, in accordance with the terms of lease, had erected at his own expense a number of buildings for light industrial use which he had sub-let for rent.Legitimate expectation: a useful concept in administrative law?

by Darren Bruno The High Court in Minister for Immigration and Border Protection v WZARH1 has recently criticised the doctrine of. The Doctrine of Legitimate Expectations and the Distinction between the Legitimate Expectations in Domestic and Community Law’ () 55 C.L.J.

The concept of legitimate expectations

; concept of legitimate expectations for dealing with retroactive decisions and the amendment of illegal . legitimate expectations, and to examine to what extent the use of this concept is justified and appropriate within the investment treaty context.

The paper starts by. Aug 07,  · The concept of legitimate expectation was born in Schmidt v. The doctrine of legitimate expectation was developed further and matured into one of the cornerstones of judicial review; Lord Diplock endorsed legitimate expectation as an element of procedural (im).

Concept Of Legitimate Expectation.

Doctrine Of Legitimate Expectation: Overview - Government, Public Sector - India Introduction[ edit ] Origins and basis of the doctrine[ edit ] F.
Doctrine Of Legitimate Expectation: Overview - Government, Public Sector - India It is stated that it is the latest recruit to a long list of concepts fashioned by the court to review an administrative action.
Dr. Rimantas Daujotas Connections at Firm "What is legitimate expectation?
Connections at Firm "What is legitimate expectation? Obviously, it is not a legal right.

This paper examines the origins and rationale of the concept of legitimate expectation. The doctrine of legitimate expectation and the limit of its application in current Indian law would also be examined as well as the scope for further broadening of . concept of legitimate expectations for dealing with retroactive decisions and the amendment of illegal decisions.

In an important precedent from , the German.