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Legitimate expectations in investment treaty arbitration : balancing between state's legitimate regulatory functions and investor's legitimate expectations

One of the impacts of globalization on the nation states across the globe is how the system reduces governmental intervention and weakens governmental control over many activities within a state's territory. From the governance perspective, states regulate and administer affairs within their territories in accordance with their constitutional mandates of satisfying fundamental objectives of their needs; the extent to which states can satisfy those needs is critically dependent on their ability to pursue public interest oriented policies for meeting the basic needs and for further development of its citizens i.e. for the public good. However, as the tasks of states entail regulation and administration for public purpose, it carries the risk of infringement of private interest or unfair treatment against private entities operating within the state. The complex nature of the investor - state relationship, therefore, provides a lush ground for tension and conflict between public and private interests. Private interests in this context, are the state's commitments to the foreign investors covered by investment treaty jurisprudence, while public interests are the domestic needs regarding public good also linked to compliance with other non-investment albeit international obligations. Under various domestic legal orders and some international law regimes, there is a well-developed principle of legitimate expectations which allows courts and domestic tribunals to filter, both, the legitimacy of individual's expectations and public interest dimension of governmental activities. In investment treaty arbitration, however, this tool or mechanism is lacking. The practice of the investment treaty (ad hoc) tribunals reveals the worrying degree of inconsistency and lack of coherence in the analysis of formulation and application of the principle of legitimate expectations. The principle as applied by investment treaty tribunals can be understood as 'reliance by foreign investor' caused by 'a state through its representation, conduct, or established legal framework', pursuant to which the foreign investor suffers damage or loss emanating from the state's regulatory or administrative measure. While Claimants in investment treaty arbitration are increasingly relying on the principle to frame their claims, its contours remain unsettled. In addition to the varying degrees of ambiguity in the formulation of the principle, the reach of its application raises the tension of overlap with a public interest dimension of the state's regulatory and administrative functions, particularly in the areas of human rights, public health, environment, and necessity measures or public choice. This thesis uses the doctrine of 'margin of appreciation' as an analytical framework for a comparative approach methodology. The doctrine of margin of appreciation as a public law tool could serve as a lens through which investment treaty tribunals could both formulate and apply the principle of legitimate expectations without obscuring the regulatory and administrative functions of states.
Date January 2015
CreatorsMuhammad, Nasiruddeen
PublisherUniversity of Dundee
Source SetsEthos UK
Detected LanguageEnglish
TypeElectronic Thesis or Dissertation

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