International Thunderbird Gaming Corporation v. The United Mexican States, NAFTA/UNCITRAL, Award, 26 January 2006, para. 147 (“Having considered recent investment case law and the good faith principle of international customary law, the concept of "legitimate expectations" relates, within the context of the Nafta framework, to a situation where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the Nafta Party to honour those expectations could cause the investor (or investment) to suffer damages.”).

Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award, 22 September 2014, para. 576 (“With particular regard to the legal sources of one of the standards for respect of the fair and equitable treatment principle, i.e. the protection of "legitimate expectations", these sources are to be found in the comparative analysis of many domestic legal systems. This has been succinctly stated recently by other ICSID tribunals, for example in Total v. Argentina and in Toto Construzioni Generali SpA v Republic of Lebanon. Based on converging considerations of good faith and legal security, the concept of legitimate expectations is found in different legal traditions according to which some expectations may be reasonably or legitimately created for a private person by the constant behavior and/or promises of its legal partner, in particular when this partner is the public administration on which this private person is dependent. In particular, in German law, protection of legitimate expectations is connected with the principle of Vertraensschutz (protection of trust) a notion which deeply influenced the development of European Union Law, pointing to precise and specific assurances given by the administration. The same notion finds equivalents in other European countries such as France in the concept of confiance legitime. The substantive (as opposed to procedural) protection of legitimate expectations is now also to be found in English law, although it was not recognized until the last decade. This protection is also found in Latin American countries, including in Argentina, as stated by the Tribunal in Total v Argentine Republic, and exists equally in Venezuelan administrative law, as indicated in the first legal opinion of Professor A. Brewer-Carias, annexed to Claimant’s Memorial.”).

Suez, Sociedad General de Aguas de Barcelona, S.A. and Interagua Servicios Integrales de Agua, S.A. v. Argentine Republic, ICSID Case No. ARB/03/17, Decision on Liability, 30 July 2010, para. 203 (“In an effort to develop an operational method for determining the existence or nonexistence of fair and equitable treatment, arbitral tribunals have increasingly taken into account the legitimate expectations that a host country has created in the investor and the extent to which conduct by the host government subsequent to the investment has frustrated those expectations. When an investor undertakes an investment, a host government through its laws, regulations, declared policies, and statements creates in the investor certain expectations about the nature of the treatment that it may anticipate from the host State. The resulting reasonable and legitimate expectations are important factors that influence initial investment decisions and afterwards the manner in which the investment is to be managed. The theoretical basis of this approach no doubt is found in the work of the eminent scholar Max Weber, who advanced the idea that one of the main contributions of law to any social system is to make economic life more calculable and also argued that capitalism arose in Europe because European law demonstrated a high degree of "calculability." An investor’s expectations, created by law of a host country, are in effect calculations about the future.”); Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A. (formerly Aguas Argentinas, S.A., Suez, Sociedad General de Aguas de Barcelona, S.A. and Vivendi Universal, S.A.) v. Argentine Republic (II), ICSID Case No. ARB/03/19, Decision on Liability, 30 July 2010, para. 222; AWG Group Ltd. v. The Argentine Republic, Decision on Liability, 30 July 2010, para. 222; Saluka Investments B.V. v. the Czech Republic, UNCITRAL, Partial Award, 17 March 2006, paras. 301-302 (“The standard of "fair and equitable treatment" is therefore closely tied to the notion of legitimate expectations34 which is the dominant element of that standard. By virtue of the "fair and equitable treatment" standard included in Article 3.1 the Czech Republic must therefore be regarded as having assumed an obligation to treat foreign investors so as to avoid the frustration of investors’ legitimate and reasonable expectations.”); Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability, 10 April 2013, paras. 932 – 933 (“This Tribunal considers that the notion of "legitimate expectations" is an objective concept, that is the result of balancing interests and rights, and it varies according to the context. Thus these expectations, as well as, their violation, have to be examined objectively.”); CMS Gas Transmission Company v. The Argentine Republic, ICSID Case No. ARB/01/8, Decision of the Ad hoc Committee on Argentina's application for annulment, 25 September 2007, para. 89 (“Although legitimate expectations might arise by reason of a course of dealing between the investor and the host State, these are not, as such, legal obligations, though they may be relevant to the application of the fair and equitable treatment clause contained in the BIT.”); OI European Group B.V. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/11/25, Award, 10 March 2015, para. 491 (“El TJE representa un concepto jurídico indeterminado, que impone a todos los Estados un estándar mínimo de conducta frente a los extranjeros. Un Estado lo viola cuando adopta un acto (o una cadena de actos) manifiestamente antijurídicos o que desconocen las exigencias básicas del rule of law. El deber de prestar TJE a los extranjeros se predica con respecto al Estado en su conjunto, y obliga a todos los poderes que lo integran. La obligación de TJE se puede violar: […] mediante actos legislativos de carácter general, dictados por el Estado, cuando la nueva regulación contradiga las legítimas expectativas del inversor.”); Deutsche Telekom v. India, PCA Case No. 2014-10, Interim Award, 13 December 2017, para. 336 (“While formulations have varied across awards and the Tribunal does not endorse every nuance set out in previous cases, a consensus appears to emerge from jurisprudence about the core components of FET. In line with that consensus and to the extent relevant to the facts and claims at issue here, the Tribunal considers that FET includes the protection of legitimate expectations, the protection against conduct that is arbitrary, unreasonable, disproportionate and lacking in good faith, and the principles of due process and transparency.”); UAB E energija (Lithuania) v. Republic of Latvia, ICSID Case No. ARB/12/33, Award of the Tribunal, 22 December 2017, para. 834 (“The Tribunal considers that, as is now recognized in multiple awards, the standard is concerned with "[p]rotection of legitimate expectations (...); [g]ood faith (...) [and] [t]ransparency, consistency, non-discrimination", as was noted by the Biwater Gauff tribunal.”); Casinos Austria International GmbH and Casinos Austria Aktiengesellschaft v. Argentine Republic, ICSID Case No. ARB/14/32, Decision on Jurisdiction, 29 June 2018, para. 242 (“Fair and equitable treatment has been interpreted, inter alia, to protect covered investors and their investments against the arbitrary exercise of public powers, as well as against harassment by public authorities, to require public authorities to administer the applicable law in good faith, to entitle foreign investors and their investments to due process, and to protect an investor's legitimate expectations.”); Anglo American PLC v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/14/1, Award, 18 January 2019, para. 443 (“[T]he Tribunal is of the opinion that the criteria for the standard of fair and equitable treatment advocated by the Claimant, that is, respect for legitimate expectations, transparency, reasonableness, and due process, as well as the absence of discrimination and arbitrariness are criteria that fall within the protection afforded by the Venezuela-United Kingdom Treaty.”); Philip Morris Brand Sàrl (Switzerland), Philip Morris Products S.A. (Switzerland) and Abal Hermanos S.A. (Uruguay) v. Oriental Republic of Uruguay, ICSID Case No. ARB/10/7, Award, 8 July 2016, para. 426 (“It clearly emerges from the analysis of the FET standard by investment tribunals that legitimate expectations depend on specific undertakings and representations made by the host State to induce investors to make an investment. Provisions of general legislation applicable to a plurality of persons or of category of persons, do not create legitimate expectations that there will be no change in the law.”); Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award, 22 September 2014, para. 571 (“The investor’s legitimate expectations are based on undertakings and representations made explicitly or implicitly by the host State. As authoritatively held, "specific representations play a central role in the creation of legitimate expectations. Undertakings and representations made explicitly or implicitly by the host State are the stronger basis for legitimate expectations. A reversal of assurances by the host State that have led to legitimate expectations will violate the principle of fair and equitable treatment.”).

Biwater Gauff (Tanzania) Limited v. United Republic of Tanzania, ICSID Case No. ARB/05/22, Award, 24 July 2008, para. 615 (“as a matter of principle, the failure to put in place an independent, impartial regulator, insulated from political influence, constitutes a breach of the fair and equitable treatment standard, in that it represents a departure from [the investor’s] legitimate expectation that an impartial regulator would be established to oversee [...].”); Charanne B.V. and Construction Investments S.A.R.L. v. Spain, SCC Case No. 062/2012, Final Award, 21 January 2016, para. 514 (“an investor has the legitimate expectation that, when the State modifies the regulation under which the investor made the investment, it will not do so unreasonably, contrary to the public interest, or in a disproportionate manner.”); Oxus Gold plc v. Republic of Uzbekistan, the State Committee of Uzbekistan for Geology & Mineral Resources, and Navoi Mining & Metallurgical Kombinat, Final Award, 17 December 2015, paras. 318 (“Considering the lack of specific definition in the BIT, the FET standard as contemplated by Article 2(2) must be understood as a means to guarantee justice to foreign investors, and when doing so, for the States' actions to give due regard to an investor's legitimate expectations by refraining from taking measures which are not justified under the circumstances, i.e. unreasonable, disproportionate or discriminatory.”), 819 (“[T]he FET standard as contemplated by Article 2(2) must be understood as a means to guarantee justice to foreign investors, and when doing so, for the States' actions to give due regard to an investor's legitimate expectations by refraining from taking measures which are not justified under the circumstances, i.e. unreasonable, disproportionate or discriminatory. With regard to the way in which national laws and regulations are applied, a breach of the standards of protection under Article 2(2) does not occur just because the relevant laws and regulations may be interpreted or applied in a different way. Instead, the threshold may only be reached where such laws or regulations have been applied in a way that is contrary to good faith, fairness or legitimate expectations by Claimant.”)

Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 551 (“to state that one has a legitimate expectation under the FET to be treated reasonably or proportionally (as the Claimant does sub i.) is tantamount to saying that one has a legitimate expectation to be treated ‘fairly and equitably.’ The same circularity of reasoning underlies the alleged expectation that the Respondent ‘would act coherently, transparently and in good faith in deciding Crystallex's appeal of the Permit denial.’”); Marfin Investment Group Holdings S.A., Alexandros Bakatselos and others v. Republic of Cyprus, ICSID Case No. ARB/13/27, Award (redacted), 26 July 2018, para. 1215 (“the Tribunal is of the view that the breach of an expectation that a State would conduct itself impartially, regularly and reasonably does not represent a separate legal basis for finding a breach of the FET standard. The FET standard, in and of itself, establishes such an obligation. There is therefore no need to place this legal construct under the legitimate expectations rubric.”); Mr. Franck Charles Arif v. Republic of Moldova, ICSID Case No. ARB/11/23, Award, 8 April 2013, para. 533 (“Legitimate expectations as a basis for the analysis of whether a State has failed to accord an investment fair and equitable treatment are now an established feature of investment arbitration, but remain problematic. They are susceptible to a certain easy circularity of argument; investors normally have expectations in relation to a wide range of contingencies, great and small, and it is often relatively easy for a claimant to postulate an expectation to condemn the very conduct that it complains of in the case before it.”).

Werner Schneider, acting in his capacity as insolvency administrator of Walter Bau Ag v. The Kingdom of Thailand (formerly Walter Bau AG (in liquidation) v. The Kingdom of Thailand), Award, 1 July 2009, para. 12.1 (“Legitimate expectations are definitely part of FET to the extent indicated by the authorities quoted earlier. A reasonable rate of return on the Claimant’s investment was clearly part of the understanding between the parties, even though no particular rate of return was, or could be, guaranteed.”); Inmaris Perestroika Sailing Maritime Services GmbH and others v. Ukraine, ICSID Case No. ARB/08/8, Decision on Jurisdiction, 8 March 2010, para. 108 (“Even if expected returns were not a subject of the BIT’s substantive protections—that is, even if one could not advance claims under the BIT for, e.g., expropriation of expected returns, or lack of full protection and security for expected returns—those expected returns could still play a role in the rest of the case. The expected returns could be relevant to questions of liability—for example, in consideration of the claimant's legitimate expectations.”); AES Corporation and Tau Power B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/10/16, Award, 1 November 2013, paras. 398-399 (“First, […] Claimants did have a legitimate expectation that they would have the opportunity to make and to have the right to dispose of a reasonable return of and on their investment. Any investor expects to make a certain return of and on its investment […], Claimants were entitled to hold the legitimate expectation that they would be able to make a reasonable return of and on their investment […]. Secondly, the Arbitral Tribunal considers that a legitimate expectation to earn a reasonable return of and on an investment necessarily implies the right to a certain discretion by the investors on how to make use of such return. This right includes in principle the right for foreign investors to repatriate such return.”), 401 (“However, it is also understood that the protection of such a legitimate expectation under the FET standard is not absolute and in order for a restriction of such right to breach the FET standard, it is necessary that the nature of the restriction be seen as unfair or inequitable.”), 403 (“[…] in order to determine the proportionality or reasonableness of certain restrictions, the duration of the restriction and its necessity to achieve the pursued goal are important criteria.”), 406 (“[…] the restrictions imposed by Respondent would only be justified if the threat of collapse was real and imminent and the measures necessary to prevent the collapse could not be implemented by means that involved a lesser intrusion upon the Claimants’ rights.”)

U.S. Model Bilateral Investment Treaty, 2012, Annex B (4)(b) (“The second situation addressed by Article 6 [Expropriation and Compensation](1) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. […] (b) Except in rare circumstances, non-discriminatory regulatory actions by a Party that are designed and applied to protect legitimate public welfare objectives, such as public health, safety, and the environment, do not constitute indirect expropriations.”); Canada Model BIT, 2004, Annex B13(1)(b)(ii) (“The Parties confirm their shared understanding that: […] b) The determination of whether a measure or series of measures of a Party constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors: […] ii) the extent to which the measure or series of measures interfere with distinct, reasonable investment-backed expectations; […]”); Metalclad Corporation v. The United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, 30 August 2000, para. 108 (“The present case resembles in a number of pertinent respects that of Biloune, et al. v. Ghana Investment Centre, et al., […]The Tribunal found that an indirect expropriation had taken place because the totality of the circumstances had the effect of causing the irreparable cessation of work on the project. The Tribunal paid particular regard to the investor’s justified reliance on the government’s representations regarding the permit, the fact that government authorities knew of the construction for more than one year before issuing the stop work order, the fact that permits had not been required for other projects and the fact that no procedure was in place for dealing with building permit applications.”); Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award, 29 May 2003, paras. 122 (“Although the analysis starts at the due deference owing to the State when defining the issues that affect its public policy or the interests of society as a whole, as well as the actions that will be implemented to protect such values, such situation does not prevent the Arbitral Tribunal, without thereby questioning such due deference, from examining the actions of the State in light of Article 5(1) of the Agreement to determine whether such measures are reasonable with respect to their goals, the deprivation of economic rights and the legitimate expectations of who suffered such deprivation.”), 149-150 (“This shows that even before the Claimant made its investment, it was widely known that the investor expected its investments in the Landfill to last for a long term and that it took this into account to estimate the time and business required to recover such investment and obtain the expected return upon making its tender offer for the acquisition of the assets related to the Landfill. To evaluate if the actions attributable to the Respondent —as well as the Resolution— violate the Agreement, such expectations should be considered legitimate and should be evaluated in light of the Agreement and of international law.”); Sempra Energy International v. Argentine Republic, ICSID Case No. ARB/02/16, Award, 28 September 2007, para. 288 (“Legitimate expectation is also an issue which the parties have discussed, and is subject to protection under broadly conceived treaty standards and international law. This does not mean, however, that this right will operate to make the test for indirect expropriation less stringent.”); Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability, 10 April 2013, paras. 811 (“There is not always a clear distinction between indirect expropriation and violation of legitimate expectations […]”), 826-828 (“In the Tribunal’s view, a mere frustrating of a foreign investor’s legitimate expectations with respect to sovereign assurances is not an indirect expropriation. […] A mere frustration of investor’s expectations, even when legitimate, which is not a result of an interference with the control or use or the investment, is not an indirect expropriation.”); Waste Management, Inc v The United Mexican States ICSID Case No ARB(AF)/00/3, Award, 30 April 2004, para. 159 (“the loss of benefits or expectations is not a sufficient criterion for an expropriation, even if it is a necessary one”).

Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, 21 March 2007, Decision on Annulment, para 67 (“The Committee can appreciate some aspects of these criticisms. For example the TECMED Tribunal's apparent reliance on the foreign investor's expectations as the source of the host State's obligations (such as the obligation to compensate for expropriation) is questionable. The obligations of the host State towards foreign investors derive from the terms of the applicable investment treaty and not from any set of expectations investors may have or claim to have. A tribunal which sought to generate from such expectations a set of rights different from those contained in or enforceable under the BIT might well exceed its powers, and if the difference were material might do so manifestly.”); El Paso Energy International Company v. Argentina, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 227 (“There is not always a clear distinction between indirect expropriation and violation of legitimate expectations […]. According to this Tribunal, the violation of a legitimate expectation should rather be protected by the fair and equitable treatment standard.”)

U.S. Model BIT of 2012, Annex B(4)(a)(ii) (“4. The second situation addressed by Article 6 [Expropriation and Compensation](1) is indirect expropriation, where an action or series of actions by a Party has an effect equivalent to direct expropriation without formal transfer of title or outright seizure. (a) The determination of whether an action or series of actions by a Party, in a specific fact situation, constitutes an indirect expropriation, requires a case-bycase, fact-based inquiry that considers, among other factors: [...] (ii) the extent to which the government action interferes with distinct, reasonable investment-backed expectations; [...]”); Canada Model BIT of 2004, Annex B.13(1)(b)(ii) (“The Parties confirm their shared understanding that: [...] b) The determination of whether a measure or series of measures of a Party constitute an indirect expropriation requires a case-by-case, fact-based inquiry that considers, among other factors: [...] ii) the extent to which the measure or series of measures interf ere with distinct, reasonable investment-backed expectations; [...]”).

Técnicas Medioambientales Tecmed, S.A. v. The United Mexican States, ICSID Case No. ARB (AF)/00/2, Award 29 May 2003, para. 154 (“The Arbitral Tribunal considers that this provision of the Agreement, in light of the good faith principle established by international law, requires the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment.”).

International Thunderbird Gaming Corporation v. The United Mexican States, NAFTA/UNCITRAL, Award, 26 January 2006, para. 147 (“Having considered recent investment case law and the good faith principle of international customary law, the concept of "legitimate expectations" relates, within the context of the Nafta framework, to a situation where a Contracting Party’s conduct creates reasonable and justifiable expectations on the part of an investor (or investment) to act in reliance on said conduct, such that a failure by the Nafta Party to honour those expectations could cause the investor (or investment) to suffer damages.”).

El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 348 (“the legitimate expectations of the investors have generally been considered central in the definition of FET, whatever its scope. There is an overwhelming trend to consider the touchstone of fair and equitable treatment to be found in the legitimate and reasonable expectations of the Parties, which derive from the obligation of good faith”); Gold Reserve Inc. v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/09/1, Award, 22 September 2014, para. 570 (“Other tribunals have underscored the central role of an investor’s legitimate expectations in the analysis of whether treatment was fair and equitable in the circumstances.”).

International Thunderbird Gaming Corporation v. United Mexican States, NAFTA/UNCITRAL, Award, Separate Opinion of Thomas Wälde, 1 December 2005, para. 37 (“One can observe over the last years a significant growth in the role and scope of the legitimate expectation principle, from an earlier function as a subsidiary interpretative principle to reinforce a particular interpretative approach chosen, to its current role as a self-standing subcategory and independent basis for a claim under the ‘fair and equitable standard.’”).

Saluka Investments BV (The Netherlands) v. Czech Republic, UNCITRAL, Partial Award, 17 March 2006, para. 302 (“The standard of “fair and equitable treatment” is therefore closely tied to the notion of legitimate expectations which is the dominant element of that standard.”); Electrabel SA v. Hungary, ICSID Case No. ARB/07/19, Decision on Jurisdiction, Applicable Law and Liability, 30 November 2012, para. 7.75 (“It is widely accepted that the most important function of the fair and equitable treatment standard is the protection of the investor’s reasonable and legitimate expectations.”).

MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004; Franck Charles Arif v. Republic of Moldova, ICSID Case No. ARB/11/23, Award, 8 April 2013.

AES Corporation and Tau Power B.V. v. Republic of Kazakhstan, ICSID Case No. ARB/10/16, Award, 1 November 2013, para. 291 (“a breach of contract does not per se trigger a breach of treaty protection. It will be a breach of treaty only if the legitimate expectation is of such nature as to justify its protection under the relevant treaty and its frustration is of sufficiently serious character to constitute an independent breach of the relevant treaty protection standard. Thus the concept of ‘legitimate expectation’ in a treaty claim is not necessarily coterminous with a legitimate expectation a party may have under a contract. Furthermore, a contractual right constitutes a ‘legitimate expectation’ protected by treaty only where there are factors other than the simple fact of the existence of the contract which justify giving the expectation of performance of the contract the status of a legitimate expectation protected by the treaty.”); Parkerings-Compagniet AS v. Republic of Lithuania (ICSID Case No. ARB/05/8), Award, September 11, 2007, para. 344 ("It is evident that not every hope amounts to an expectation under international law. The expectation a party to an agreement may have of the regular fulfilment of the obligation by the other party is not necessarily an expectation protected by international law. In other words, contracts involve intrinsic expectations from each party that do not amount to expectations as understood in international law."); Gustav F W Hamester GmbH & Co KG c. Republic de Ghana, Case ICSID No. ARB/07/24, Award, 18 June 2010, para. 335 (“It is important to emphasise that the existence of legitimate expectations and the existence of contractual rights are two separate issues. This has been highlighted by the Parkerings v. Lithuania tribunal, which made a clear distinction between contractual obligations under national law and legitimate expectations under international law [...].”); Impregilo S.p.A. v. Argentine Republic (I), ICSID Case No. ARB/07/17 , Award, 21 June 2011, para. 292 (“In this context, the Arbitral Tribunal observes that the existence of legitimate expectations and the existence of contractual rights are two separate issues. This has been highlighted by the Parkerings-Compagniet tribunal, which made a clear distinction between contractual obligations under national law and legitimate expectations under international law: "It is evident that not every hope amounts to an expectation under international law. The expectation a party to an agreement may have of the regular fulfilment of the obligation by the other party is not necessarily an expectation protected by international law. In other words, contracts involve intrinsic expectations from each party that do not amount to expectations as understood in international law."”).

Southern Pacific Properties (Middle East) Limited v. Arab Republic of Egypt, ICSID Case No. ARB/84/3, Award on the Merits, 20 May 1992, paras. 82-83 (“It is possible that under Egyptian law certain acts of Egyptian officials, including even Presidential Decree No. 475, may be considered legally nonexistent or null and void or susceptible to invalidation. However, these acts were cloaked with the mantle of Governmental authority and communicated as such to foreign investors who relied on them in making their investments. Whether legal under Egyptian law or not, the acts in question were the acts of Egyptian authorities, including the highest executive authority of the Government. These acts, which are now alleged to have been in violation of the Egyptian municipal legal system, created expectations protected by established principles of international law. ”); Mobil Cerro Negro Holding, Ltd., Mobil Cerro Negro, Ltd., Mobil Corporation and others v. Bolivarian Republic of Venezuela, ICSID Case No. ARB/07/27, Award of the Tribunal, 9 October 2014, para. 256 (“this standard may be breached by frustrating the expectations that the investor may have legitimately taken into account when making the investment. Legitimate expectations may result from specific formal assurances given by the host state in order to induce investment. The Tribunal will thus consider whether in the present case legitimate expectations could reasonably have been the result of such assurances.”).

Metalclad Corporation v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award, 30 August 2000, para. 89 (“Metalclad was entitled to rely on the representations of federal officials and to believe that it was entitled to continue its construction of the landfill. In following the advice of these officials, and filing the municipal permit application on November 15, 1994, Metalclad was merely acting prudently and in the full expectation that the permit would be granted.”)

MTD Equity Sdn. Bhd. and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award, 25 May 2004, para. 159 (“The scope of the approval of the first two investments of the Claimants by the FIC is a key element in the consideration of whether the Respondent fulfilled its obligation to treat the Claimants fairly and equitably and the Tribunal will turn to this question now. At this point, the Tribunal is only concerned with the actual approval of the inflow of funds for the Project and with the fact that Chile entered into the Foreign Investment Contracts with the Claimants. The Tribunal will discuss later the claim that Chile breached the Foreign Investment Contracts and, by operation of the MFN clause, the BIT.”).

White Industries Australia Limited v. The Republic of India, Final Award, 30 November 2011, para. 10.3.17 (“As regards White’s alleged legitimate expectations based on the range of representations said to have been made to Mr Duncan (e.g., that it would be treated fairly, that India was a safe place to do business etc), the Tribunal agrees with India that the alleged representations suffer from vagueness and generality, such that they are not capable of giving rise to reasonable legitimate expectations that are amenable to protection under the fair and equitable treatment standard.”); David Minnotte and Robert Lewis v. Republic of Poland, ICSID Case No. ARB(AF)/10/1, Award, 16 May 2014, para. 193 (“While there may, arguably, be a general expectation that States will observe basic standards such as reasonable consistency and transparency, more specific expectations must be specifically created and proved.”); Peter A. Allard v. The Government of Barbados, PCA Case No. 2012-06, Award, 27 June 2016, paras. 199-216 (“On a fair reading, none of the statements relied upon by the Claimant are amenable to characterisation as a specific representation capable of creating a legitimate expectation [...] that Barbados would take any specific steps with regard to the environmental protection of the Sanctuary. The terms and context of these statements do not suffice to support the expression of an intention to create an obligation for the State. Nor is each reasonably amenable to be interpreted by an investor to create such an obligation.”); El Paso Energy International Company v. Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 375 (“A reasonable general regulation can be considered a violation of the FET standard if it violates a specific commitment towards the investor. The Tribunal considers that a special commitment by the State towards an investor provides the latter with a certain protection against changes in the legislation, but it needs to discuss more thoroughly the concept of "specific commitments." In the Tribunal’s view, no general definition of what constitutes a specific commitment can be given, as all depends on the circumstances. However, it seems that two types of commitments might be considered "specific": those specific as to their addressee and those specific regarding their object and purpose.”); Crystallex International Corporation v. Bolivarian Republic of Venezuela, ICSID Case No. ARB(AF)/11/2, Award, 4 April 2016, para. 547 (“[P]rotection of legitimate expectations under the FET standard occurs under well-defined limits. A legitimate expectation may arise in cases where the Administration has made a promise or representation to an investor as to a substantive benefit, on which the investor has relied in making its investment, and which later was frustrated by the conduct of the Administration. To be able to give rise to such legitimate expectations, such promise or representation - addressed to the individual investor - must be sufficiently specific, i.e. it must be precise as to its content and clear as to its form.”); Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Decision on Liability, 27 December 2010, para. 121 (“the form and specific content of the undertaking of stability invoked are crucial. No less relevant is the clarity with which the authorities have expressed their intention to bind themselves for the future”); Mr. Jürgen Wirtgen, Mr. Stefan Wirtgen, and JSW Solar (zwei) GmbH & Co.KG v. Czech Republic, PCA Case No. 2014-03, Final Award, 11 October 2017, para. 409 (“To ascertain whether the state has granted a stabilization commitment or given a specific assurance, the form, the content and the clarity of the alleged promise are of critical relevance. As observed in Total v. Argentina: "the form and specific content of the undertaking of stability invoked are crucial. No less relevant is the clarity with which the authorities have expressed their intention to bind themselves for the future".”); Stadtwerke München GmbH and others v. Kingdom of Spain, ICSID Case No. ARB/15/1, Award, 2 December 2019, para. 264 (“The FET standard in the ECT does not, however, protect the investor from any and all changes that a government can introduce into its legislation. As concluded in the previous section, it does not protect it against the changes introduced to safeguard the public interest to address a change of circumstances, nor does it protect the investor who unreasonably and unjustifiably expects that the host government will introduce no amendments will to the legislation governing the investment. In the absence of a specific commitment contractually assumed by a State to freeze its legislation in favor of an investor, when an investor argues - as is the case here - that such expectation is rooted, among others, in the host State’s legislation, the Tribunal is required to conduct an objective examination of the legislation and the facts surrounding the making of the investment to assess whether a prudent and experienced investor could have reasonably formed a legitimate and justifiable expectation of the immutability of such legislation. For such an expectation to be reasonable, it must also arise from a rigorous due diligence process carried out by the investor.”).

9REN Holding S.a.r.l v. Kingdom of Spain, ICSID Case No. ARB/15/15, Award, 31 May 2019, paras. 294 (“At the same time, the Tribunal accepts as correct the observation of UNCTAD (2012) that legitimate expectations may arise from "rules not specifically addressed to a particular investor but which are put in place with a specific arm to induce foreign investments and on which the foreign investor relied on making his investment". To similar effect, the El Paso tribunal distinguished between "two types of commitments… those specific as to their addressee and those specific regarding their object and purpose."[…]”), 295 (“There is no doubt that an enforceable ‘legitimate expectation’ requires a clear and specific commitment, but in the view of this Tribunal there is no reason in principle why such a commitment of the requisite clarity and specificity cannot be made in the regulation itself where (as here) such a commitment is made for the purpose of inducing investment, which succeeded in attracting the Claimant's investment and once made resulted in losses to the Claimant.”); Isolux Infrastructure Netherlands B.V. v. Kingdom of Spain, SCC Case No. V2013/153, Award, 12 July 2016, para. 775 (“El Tribunal Arbitral ya decidió que el Reino de España no había contraído compromisos para con los inversores en razón del carácter general de las normas aplicables a las inversiones. Sin embargo, el Tribunal Arbitral comparte el análisis de UNCTAD que ha presentado el concepto de legitimas expectativas de la siguiente manera: "Arbitral decisions suggest […] that an investor may derive legitimate expectations either from (a) specific commitments addressed to it personally, for example, in the form of a stabilization clause, or (b) rules that are not specifically addressed to a particular investor but which are put in place with a specific aim to induce foreign investments and on which the foreign investor relied in making his investment."”).

Saluka Investments BV (The Netherlands) v. Czech Republic, UNCITRAL, Partial Award, 17 March 2006, para. 305 (“No investor may reasonably expect that the circumstances prevailing at the time the investment is made remain totally unchanged. In order to determine whether frustration of the foreign investor’s expectations was justified and reasonable, the host State’s legitimate right subsequently to regulate domestic matters in the public interest must be taken into consideration as well. As the S.D. Myers tribunal has stated, the determination of a breach of the obligation of "fair and equitable treatment" by the host State must be made in the light of the high measure of deference that international law generally extends to the right of domestic authorities to regulate matters within their own borders.”); ADC Affiliate Ltd. v. The Republic of Hungary, ICSID Case No. ARB/03/16, Award of the Tribunal, 2 October 2006, paras. 423-424 (“The Tribunal cannot accept the Respondent's position that the actions taken by it against the Claimants were merely an exercise of its rights under international law to regulate its domestic economic and legal affairs. It is the Tribunal's understanding of the basic international law principles that while a sovereign State possesses the inherent right to regulate its domestic affairs, the exercise of such right is not unlimited and must have its boundaries. As rightly pointed out by the Claimants, the rule of law, which includes treaty obligations, provides such boundaries. Therefore, when a State enters into a bilateral investment treaty like the one in this case, it becomes bound by it and the investment-protection obligations it undertook therein must be honoured rather than be ignored by a later argument of the State's right to regulate (…).”); Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/08, Award, 11 September 2007, paras. 332-333 (“It is each State's undeniable right and privilege to exercise its sovereign legislative power. A State has the right to enact, modify or cancel a law at its own discretion. Save for the existence of an agreement, in the form of a stabilisation clause or otherwise, there is nothing objectionable about the amendment brought to the regulatory framework existing at the time an investor made its investment. As a matter of fact, any businessman or investor knows that laws will evolve over time. What is prohibited however is for a State to act unfairly, unreasonably or inequitably in the exercise of its legislative power.”); AES Summit Generation Limited and AES-Tisza Erömö Kft. v. Republic of Hungary, ICSID Case No. ARB/07/22, Award, 23 September 2010, para. 9.3.29 (“The stable conditions that the ECT mentions relate to the framework within which the investment takes place. Nevertheless, it is not a stability clause. A legal framework is by definition subject to change as it adapts to new circumstances day by day and a state has the sovereign right to exercise its powers which include legislative acts.”); Teinver S.A., Transportes de Cercanías S.A. and Autobuses Urbanos del Sur S.A. v. Argentine Republic, ICSID Case No. ARB/09/1, Award, 21 July 2017, paras. 667-668 (“The aspect of the fair and equitable treatment obligation that relates to legitimate expectations responds to change - usually in a State’s changes to a regulatory regime upon which an investor relied in making its investment. It has also been consistently held that it is not legitimate for investors to expect that a regulatory regime or laws will never change and that a State has the right to change its laws. In doing so, it will not breach its obligation to treat investors fairly and equitably if it changes its laws in a legitimate exercise of its regulatory authority.”); Antaris Solar GmbH and Dr. Michael Göde v. The Czech Republic, PCA Case No. 2014-01, Award, 2 May 2018, para. 360.4 (“[a]n expectation may arise from what are construed as specific guarantees in legislation.”); Enron Corp v. Argentina, ICSID Case No. ARB/01/3, Award, 22 May 2007, paras. 264-266 (“The measures in question in this case have beyond any doubt substantially changed the legal and business framework under which the investment was decided and implemented. Argentina in the early 1990s constructed a regulatory framework for the gas sector containing specific guarantees to attract foreign capital to an economy historically unstable and volatile. As part of this regulatory framework, Argentina guaranteed that tariffs would be calculated in US dollars, converted into pesos for billing purposes, adjusted semi-annually in accordance with the US PPI and sufficient to cover costs and a reasonable rate of return. It further guaranteed that tariffs would not be subject to freezing or price controls without compensation. Foreign investors were specifically targeted to invest in the privatization of public utilities in the gas sector. Substantial foreign investment was undertaken on the strength of such guarantees, including the investment made by Enron in TGS.”); LG&E Energy Corp v. Argentina, ICSID Case No. ARB/02/1, Decision on Liability, 3 October 2006, paras 162-163 (“While Claimants have alleged Argentina’s political motivation to use foreign investors in the public utility sector as an excuse to justify the economic mistakes committed in the country, Argentina has explained that the Government’s motivation was its desire to avoid its full economic collapse. To this end, it entered into agreements with the licensees in 2001, in addition to other actions taken. Bearing in mind the Tribunal’s analysis, characterizing the measures as not arbitrary does not mean that such measures are characterized as fair and equitable or regarded as not having affected the stability of the legal framework under which gas transportation companies in Argentina operated. On the contrary, this means that Argentina faced severe economic and social hardships from 2001 onwards and had to react to the circumstances prevailing at the time. Even though the measures adopted by Argentina may not have been the best, they were not taken lightly, without due consideration. This is particularly reflected in the PPI adjustments which, before deciding on their postponement, Argentina negotiated with the investors. The Tribunal concludes that the charges imposed by Argentina to Claimants’ investment, though unfair and inequitable, were the result of reasoned judgment rather than simple disregard of the rule of law.”); El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 350 (“In the Tribunal’s view, if the often repeated formula to the effect that "the stability of the legal and business framework is an essential element of fair and equitable treatment" were true, legislation could never be changed: the mere enunciation of that proposition shows its irrelevance. Such a standard of behaviour, if strictly applied, is not realistic, nor is it the BITs’ purpose that States guarantee that the economic and legal conditions in which investments take place will remain unaltered ad infinitum. [...]”); Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability, 10 April 2013, para. 928 (“[T]he FET standard shall nevertheless not be understood to amount to a stabilisation clause, but will leave a measure of governmental space for regulation. As stated by the tribunal in El Paso the often repeated formula to the effect that "the stability of the legal and business framework is an essential element of fair and equitable treatment", if strictly applied is not realistic and "the BIT’s purpose is not that the States guarantee that the economic and legal conditions in which investments take place will remain unchanged for ever.”); Convial Callao S.A. and CCI - Compañía de Concesiones de Infraestructura S.A. v. Republic of Peru, ICSID Case No. ARB/10/2, Final Award, 21 May 2013, para. 597 (“El Tribunal Arbitral recuerda la jurisprudencia según la cual, reglas de derecho interno generales no pueden, a priori, crear expectativas específicas, especialmente las relativas a la no modificación de tales reglas durante la duración de la inversión. Además, las Demandantes tampoco demuestran la existencia de algún acto soberano ejercido por la MPC que haya revertido el efecto de lo previsto en tales disposiciones.”).

Novenergia II - Energy & Environment (SCA) (Grand Duchy of Luxembourg), SICAR v. The Kingdom of Spain, SCC Case No. 2015/063, Final Award, 15 February 2018, para. 681 (“the Tribunal concludes that the Claimant had a legitimate and reasonable expectation that there would not be any radical or fundamental changes to the [regime regulating renewable energy].”); Masdar Solar and Wind Cooperatief U.A. v. Kingdom of Spain, ICSID Case No. ARB/14/1, Award, 16 May 2018, paras. 503-504 (“ln sum, from the perspective of this first school of thought, the fact that RD661/2007 and other texts included a stabilisation clause is sufficient to exclude any modification of the law, so far as investors, which had made investments in reliance upon its terms, were concerned.”) , 511 (Be that as it may, and to whichever of the two schools of thought individual members of the Tribunal might adhere, this Tribunal need not be detained by the decision of the majority of the Charanne tribunal, in that it has to consider in this case not only the totality of the Spanish legislative regime applicable to CSP installations, but it must also take account of the existence of specific commitments, outside the general legislation or general documentation.”); Mr Jürgen Wirtgen, Mr. Stefan Wirtgen, and JSW Solar (zwei) GmbH & Co.KG v. Czech Republic, PCA Case No. 2014-03, Final Award, 11 October 2017, para. 445 (“For the foregoing reasons, the Tribunal dismisses the FET claims. It finds that the Czech Republic had not furnished any guarantees of the kind alleged by the Claimants. Neither had the Czech Republic "deliberately attracted" and then harmed solar RES producers.”).

Frontier Petroleum Services Ltd. v. The Czech Republic, PCA Case No. 2008-09, Final Award, 12 November 2010, paras. 287-288 (“Of note, where investments are made through several steps, spread over a period of time, legitimate expectations must be examined for each stage at which a decisive step is taken towards the creation, expansion, development, or reorganisation of the investment. It follows from the above that any legitimate expectations, in order to be protected by the fair and equitable treatment standard, must have existed at the time the investment was made. Expectations created after that date, especially in the course of seeking remedies, would not be covered by the notion of legitimate expectations as developed in the context of the fair and equitable treatment standard.”); Duke Energy Electroquil Partners and Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19, Award, 18 August 2008, para. 340 (“To be protected, the investor’s expectations must be legitimate and reasonable at the time when the investor makes the investment. The assessment of the reasonableness or legitimacy must take into account all circumstances, including not only the facts surrounding the investment, but also the political, socioeconomic, cultural and historical conditions prevailing in the host State. In addition, such expectations must arise from the conditions that the State offered the investor and the latter must have relied upon them when deciding to invest.”); Mr. Jürgen Wirtgen, Mr. Stefan Wirtgen, and JSW Solar (zwei) GmbH & Co.KG v. Czech Republic, PCA Case No. 2014-03, Final Award, 11 October 2017, para. 411 (“The investor’s expectations are to be examined objectively, and the investor must have relied on the state’s promises of stability at the time of making its investment.”); Consutel v. Algeria, PCA Case No. 2017-33, Final Award, 3 February 2020, para. 421.

Charanne B.V. and Construction Investments S.A.R.L. v. Spain, SCC Case No. 062/2012, Final Award, 21 January 2016, para. 505 (“‘in order to rely on legitimate expectations, the Claimants should have conducted a diligent analysis of the legal framework applicable to their investment’ . . . [and] in order for regulatory measures to be in violation of the investor’s legitimate expectations, these regulatory measures must not have been reasonably foreseeable at the time of the investment.”); South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 30 August 2018, para. 648 (“First, several international investment tribunals have established that the investor is entitled to protection of its legitimate expectations provided (i) that it exercised due diligence, and (ii) that its legitimate expectations were reasonable in light of the circumstances.”). Stadtwerke München GmbH and others v. Kingdom of Spain, ICSID Case No. ARB/15/1, Award, para. 264 (“[…] In the absence of a specific commitment contractually assumed by a State to freeze its legislation in favor of an investor, when an investor argues - as is the case here - that such expectation is rooted, among others, in the host State’s legislation, the Tribunal is required to conduct an objective examination of the legislation and the facts surrounding the making of the investment to assess whether a prudent and experienced investor could have reasonably formed a legitimate and justifiable expectation of the immutability of such legislation. For such an expectation to be reasonable, it must also arise from a rigorous due diligence process carried out by the investor.”); Consutel v. Algeria, PCA Case No. 2017-33, Final Award, 3 February 2020, para. 473.

El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 357 (“This means, firstly, that the Tribunal considers that a violation can be found even if there is a mere objective disregard of the rights enjoyed by the investor under the FET standard, and that such a violation does not require subjective bad faith on the part of the State. This approach of the Tribunal has been followed in several earlier arbitral awards.”).

El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award, 31 October 2011, para. 360 (“It has thus been recognised that legitimate expectations might differ between an economy in transition such as that of Ukraine and a more developed one. As the tribunal in Generation Ukraine v. Ukraine pointed out: “The Claimant was attracted to the Ukraine because of the possibility of earning a rate of return on its capital in significant excess to the other investment opportunities in more developed economies. The Claimant thus invested in the Ukraine on notice of both the prospects and the potential pitfalls.”); Generation Ukraine Inc. v. Ukraine, ICSID Case No. ARB/00/9, Award, 16 September 2003, para. 20.37 (“The Claimant was attracted to the Ukraine because of the possibility of earning a rate of return on its capital in significant excess to the other investment opportunities in more developed economies. The Claimant thus invested in the Ukraine on notice of both the prospects and the potential pitfalls.”); Parkerings-Compagniet AS v. Republic of Lithuania, ICSID Case No. ARB/05/8, Award, 11 September 2007, para. 335 (“the political environment in Lithuania was characteristic of a country in transition from its past being part of the Soviet Union to candidate for the European Union membership.”); Toto Costruzioni Generali S.p.A. v. Republic of Lebanon, ICSID Case No. ARB/07/12, Award, 7 June 2012, para. 165 (“[…] legitimate expectations are more than the investor’s subjective expectations. Their recognition is the result of a balancing operation of the different interests at stake, taking into account all circumstances, including the political and socioeconomic conditions prevailing in the host State.”); Mobil Exploration and Development Inc. Suc. Argentina and Mobil Argentina S.A. v. Argentine Republic, ICSID Case No. ARB/04/16, Decision on Jurisdiction and Liability, 10 April 2013, para. 933 (“[...] the notion of "legitimate expectations" is an objective concept, that is the result of balancing interests and rights, and it varies according to the context. Thus these expectations, as well as, their violation, have to be examined objectively.”).

Duke Energy Electroquil Partners & Electroauil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19, Award, 18 August 2008, para. 340 (“The stability of the legal and business environment is directly linked to the investor's justified expectations. 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. To be protected, the investor's expectations must be legitimate and reasonable at the time when the investor makes the investment. The assessment of the reasonableness or legitimacy must take into account all circumstances, including not only the facts surrounding the investment, but also the political, socioeconomic, cultural and historical conditions prevailing in the host State. In addition, such expectations must arise from the conditions that the State offered the investor and the latter must have relied upon them when deciding to invest”); South American Silver Limited (Bermuda) v. The Plurinational State of Bolivia, PCA Case No. 2013-15, Award, 30 August 2018, para. 648 (“The circumstances to be taken into consideration by the investor are not merely legal in nature, but they should also include the social, cultural, and economic environment of the host State of the investment, amongst other factors.”).

Bayindir Insaat Turzim Ticaret VE Sanayi A.Ş. v. Islamic Republic of Pakistan, ICSID Case No. ARB/03/29, Award, 27 August 2009, para. 195 (“The Tribunal notes that the approach has been followed by several international arbitration tribunals deciding jurisdictional objections by a respondent state against a claimant investor, including Methanex v. USA, SGS v. Philippines, Salini v. Jordan, Siemens v. Argentina and Plama v. Bulgaria. In the last of these cases, the tribunal held that “if on the facts alleged by the Claimant, the Respondent's actions might violate the [BIT], then the Tribunal has jurisdiction to determine exactly what the facts are and see whether they do sustain a violation of that Treaty”. Likewise, the tribunal in Impregilo considered that “it must not make findings on the merits of those claims, which have yet to be argued, but rather must satisfy itself that it has jurisdiction over the dispute, as presented by the Claimant”).

Toto Costruzioni General S.P.A v. Republic of Lebanon, ICSID Case No. ARB/07/12, Award, 7 June 2012, para. 245 (“In Parkerings-Compagniet AS v. Lithuania, the arbitrators concluded that the circumstances in a country in transition could not justify the legitimate expectations as regards the stability of the investment’s environment. Rather, the investor was considered to have taken the business risk to invest, notwithstanding the possible legal and political instability. Likewise, the post-civil war situation in Lebanon, with substantial economic challenges and colossal reconstruction efforts, did not justify legal expectations that custom duties would remain unchanged.”).