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The protection of investor’s ‘legitimate expectations’ in International investment arbitration

1) The protection of legitimate expectations of foreign investors is one of the most important issues in international investment law of these days. It is, in particular, because no international investment agreement has the stipulation for protection of legitimate expectations, only for that of investment per se, even if the necessity of it’s protection is increasing gradually.
Methods for it's protection has been devised by international arbitral tribunals. In the early times, Arbitral tribunals invoked the general principle of laws as basis of protection of legitimate expectations of investors. But the serious problem was indicated in that the violation of general principle of laws is hard to cause the obligation of compensation. After the time, arbitral tribunals adopted the another way for it's protection through the autonomous interpretation of the Fair & Equitable Treatment(FET) clause which exists in almost every international investment agreement, on the grounds which the FET clause includes good faith principle.
2) But this attitude of arbitral tribunal provoked not few criticisms and raised many problems to have to be solved.
Firstly, there is a question as to whether such logic of tribunal is indeed valid that the FET clause is able to comprise the principle of protection of legitimate expectations. This question is treated in chapter III of this article.
Secondly, if the first question is positive, next question to be raised is when and how investors’ expectations come into being and in which cases such formed expectations are legitimate. (chapter IV) 3) Finally, this article intended to point out several concrete problems which are invoked in trying to protect investors’ expectations through the FET clause.
Firstly, this article never forgot to consider diverse types of FET clause of which the root lies in the serious difference of views surrounding the ‘Minimum Standard of Treatment(MST)’ in customary international law. Nonetheless, it comes to conclusion that every type of the FET clause is able to comprise the principle of protection of legitimate expectations.
Secondly, this article urged attention in that the ‘Most-Favored-Nations(MFN) clause’ can let all investment agreement include the FET clause. Thirdly, the legal principle for protection of expectations in domestic legal system can be transformed in international legal system. Above all, the legitimate expectations to be protected in international investment agreements is not substantive right but procedural right because it is protected through the FET clause. Next, the duty of protection of legitimate expectations in international investment agreement is not able to be ignored due to domestic illegality of the measure concerned, even if the due diligence of investors is required.
Besides, core part of the principle can’t be modified no matter how the domestic legal principle can be transformed in international agreement. That is, obscure expectations without any concrete representation of the other party is not able to be protected. In other word, general law per se can’t produce the expectations. If the modification of certain law is arbitrary, the modification per se is the violation of the FET clause without any necessity of indicating the protection of legitimate expectations. If one wants earnestly to indicate the protection of expectations in the case of the modification of certain law, the law concerned has to be equipped with the elements of specificity and individualization. this article points out that a few arbitral tribunal committed errors of disregarding this principle only for the sake of investors’ interest.

참고문헌 (Reference)

1 "White Industries Australia Limited v. India, UNCITRAL, Final Award, 30 November 2011"

2 "Waste Management, Inc. v. Mexico, ICSID Case No. ARB(AF)/00/3, Award, 30 April 2004"

3 W. Michael Reisman, "Völkerrecht als Wertordnung –-Common Values in International Law, Festschrift für : Essays in honour of Christian Tomuschat" 2006

4 "Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award, May 29, 2003"

5 "Toto Construzioni Generali S.p.A. v. Lebanon, ICSID Case No. ARB/07/1 2, Award, 7 June 2012"

6 "Total S.A. v. The Argentine Republic, ICSID Case No. ARB/04/01, Decision on Liability, 27 December 2010"

7 Patrick Dumberry, "The Protection of Investors’ Legitimate Expectations and the Fair and Equitable Treatment Standard under NAFTA Article 1105" 31 : 2014

8 Patrick Dumberry, "The Prohibition against Arbitrary Conduct and the Fair and Equitable Treatment Standard under NAFTA Article 1105" 15 : 2014

9 S. Fietta, "The Legitimate Expectations Principle under Article 1105 NAFTA: International Thunderbird Gaming Corporation v. Mexico" 7 : 2006

10 Martins Paparinskis, "The International Minimum Standard and Fair and Equitable Treatment" Oxford Univ. Press 2013