Legitimate Expectations - Lessons from Recent Energy Arbitration Cases on Renewable Energy Relationship of Fair and Equitable Treatment Standard to Indirect Expropriation.

2018 ◽  
Author(s):  
Alan Franklin
Keyword(s):  
Renewable Energy ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Equitable Treatment ◽  
Relationship Of

Legitimate Expectations and Fair-and-Equitable-Treatment under the Energy Charter Treaty

2022 ◽  
Author(s):  
Niclas Landmann
Keyword(s):  
Renewable Energy ◽  
Energy Sector ◽  
Comprehensive Analysis ◽  
Due Diligence ◽  
The Past ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Energy Charter Treaty ◽  
Legitimate Expectations ◽  
Equitable Treatment

A recent tide of ISDS cases in the renewable energy sector has generated a large number of arbitral awards that turn of the notion of legitimate expectations. The Fair and Equitable Treatment Standard (FET) and the notion of legitimate expectations has been highly undetermined in the past. This work contains a comprehensive analysis of the renewable energy awards and the interpretation of the notion of legitimate expectations therein. In particular, it is examined whether arbitral jurisprudence formed a cohesive body of caw-law. The author analyses which aspects with regard to commitment by the states, due diligence of the investors, and level of impact were considered a violation of the FET Standard by recent arbitral tribunals.

Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment

2012 ◽  
Vol 25 (1) ◽  
pp. 77-107 ◽  
Author(s):  
JACOB STONE
Keyword(s):  
International Law ◽  
International Investment ◽  
Bad Faith ◽  
Common Features ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Investment Treaties ◽  
Equitable Treatment

AbstractOne of the most common features of international investment treaties is the obligation of a state to grant ‘fair and equitable treatment’ to investors and investments. Treatment giving rise to allegations of breaches of this obligation has taken many forms, namely bad faith, discrimination, denial of justice, frustration of legitimate expectations, lack of transparency, coercion and harassment, and arbitrariness or arbitrary conduct. This latter form of treatment – arbitrariness – has rarely been the focus of scholarly works and, thus, its scope and meaning are difficult to ascertain. When examined in the context of international investment disputes, however, one may conclude that, while its scope and meaning may vary, arbitrariness is indeed a legitimate basis for claim under the fair and equitable treatment standard. The thresholds for demonstrating arbitrariness, however, are decidedly and consistently high.

Legal Stability and Legitimate Expectations: Does International Investment Law Need a Sense of Proportion? – Joint 2nd Prize Winner of the Essay Competition 2020

2020 ◽  
Vol 5 (1) ◽  
pp. 240-264
Author(s):  
Robert Bradshaw
Keyword(s):  
Renewable Energy ◽  
International Investment ◽  
Eu Law ◽  
Legal Systems ◽  
International Investment Law ◽  
Fair And Equitable Treatment ◽  
Energy Charter Treaty ◽  
Legitimate Expectations ◽  
Investment Law ◽  
Equitable Treatment

In the aftermath of the Achmea judgment and with the European Commission’s continued efforts to curtail investor- State arbitration, EU law and international investment law may seem antithetical. However, this article considers how EU law may contribute to the development of investment law through the concept of proportionality, a general principle of EU law and various national legal systems. Tribunals have increasingly applied a proportionality analysis in their reasoning, most recently in several cases brought by renewable energy investors against Spain and Italy under the Energy Charter Treaty. These cases concern the controversial issue of when a change in the regulatory framework violates investors’ legitimate expectations and their right to fair and equitable treatment. This article argues that the proportionality standard has the potential to clarify this area of law and to promote “defragmentation” between international investment law and other legal systems.

From a Fortuitous Transplant to a Fundamental Principle of Law?

2021 ◽  
pp. 426-440
Author(s):  
Josef Ostřanský
Keyword(s):  
Historical Context ◽  
Fundamental Principle ◽  
International Investment ◽  
Legal Form ◽  
International Investment Law ◽  
Treatment Standard ◽  
Fair And Equitable Treatment ◽  
Legitimate Expectations ◽  
Equitable Treatment ◽  
Substantial Change

The doctrine of legitimate expectations (LEs) is now considered a backbone principle of international investment law (IIL), particularly of the fair and equitable treatment standard (FET). Open any recent textbook of IIL and you will find discussion on LEs as one of the core principles. However, if one takes a step back, one may see that the notion of legitimate expectations simply appeared in early investment cases ‘out of thin air’. This contribution will argue that, while LEs’ appearance in IIL practice may be viewed as contingent, its ascendance into the principal doctrine of substantive IIL with specific parameters is neither entirely accidental nor random. The use and specific parameters of the doctrine have been allowed and facilitated by both the indeterminate and semantically ambiguous legal form of IIL obligations, and by a specific historical context in which the notion became prominent. The consequence of the argument can be appreciated at two levels. First, it can be argued that even without the contingent ascendance of the notion of LEs, the field of IIL would likely have taken up a similar substantive trajectory. Second, this argument sheds light on questions about how a more substantial change in the regime might be effected, instead of merely reforming certain aspects of the regime without affecting its current premises, structure, substance, and teleology. By doing so, the contribution underlines the difficulties in articulating plausibly what would have made a difference in a particular legal regime.

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