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Mr Ivaylo Dimitrov

Associate - Omnia Strategy LLP

Author

Ms Maria Oproglidou

Law Clerk - Omnia Strategy LLP

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Legitimate Expectations - Timing

I. Introduction

1.

Foreign investors can form legitimate expectations on the basis of the legal framework and the factual situation in the host State, as well as specific representations or commitments given by the State authorities.1 Given that the relationship between the State and the foreign investor usually spans a number of years, it is important to determine the point in time at which the tribunal should assess the investor’s expectations.

2.

At first blush it appears that the predominant view in the investor-State jurisprudence is that the assessment must be limited to the relevant facts as they stand at the time of the making of the investment. However, on a closer analysis, the situation is more nuanced. Given that the implementation of a foreign investment can sometimes comprise several steps, one of the challenging aspects of this temporal analysis is to determine when exactly the investment was “made”. This has been subject to divergent approaches in the case law. Ultimately, the temporal element appears to be decided on a case-by-case basis taking into account the particular circumstances.

II. Critical dates in identifying the timing of legitimate expectations

3.

BIT provisions do not indicate the time at which expectations must exist in order to merit protection. The guidance on this issue is thus derived from case law:

  1. The vast majority of tribunals have consistently ruled that protected expectations must rest on the conditions prevalent at the time of the investment.2 
  2. Other tribunals have determined that the legitimacy of the investor’s expectations should be determined at the moment of the investor’s decision to invest.3 However, these tribunals have not taken into account that the investor’s decision and the acts of implementation of this decision could occur at two separate moments in time.4

A. Consideration of the time of the making of the investment

4.

In most cases, the foreign investment will not be a single event, but will comprise a series of transactions and activities.5 Tribunals have consistently focused on the general unity of an investment operation rather than distinct legal transactions.6 See further Definition of investment, Section VI.

5.

It follows that the establishment of an investment will generally require a certain period of time, as it constitutes a complex process rather than an instantaneous act. As a result, determining the critical date of the “time of the investment” will often be an elaborate task.

6.

A number of tribunals have deemed it necessary to ascertain the existence of the investor’s legitimate expectations at the time of each individual decision/transaction.7 Notably, the tribunal in Frontier Petroleum ruled that: “[W]here 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.”8

B. Consideration of the time of the investor’s decision to invest

7.

Other tribunals have adopted a different view, including the Novenergia v. Spain II tribunal, which acknowledged that although “in larger projects …the investment phase transcends through various stages”, the timing of the investor's decision to invest “sets a backstop date for the evaluation of legitimate expectations”.9

C. Consideration of events occurring after the making of the investment

8.

A few tribunals have decided to consider events that occurred after the realization of the investment in assessing the legitimate expectations.10 In Tethyan v Pakistan, for instance, the tribunal decided to take into account Pakistan’s conduct after the implementation of the investment in 2006, because the “Claimant incurred the major part of its exploration expenditures only after [that]”. The tribunal ultimately found that the host State’s actions encouraged the claimant to continue to invest into the mine in question.

III. Conclusion

9.

An overview of the jurisprudence suggests that the starting point in the assessment of the investor’s expectations would be the moment when the investment was made. However, the precise timing would depend on the specifics of the project in question. When the investment is made in several stages, tribunals may need to assess the grounds that could give rise to the expectations at each separate stage. Where the circumstances warrant, tribunals may also take into account facts that took place after the initial step of investing.

Bibliography

Dolzer, R. and Schreuer C., Principles of International Investment Law, 2nd ed., Oxford University Press, 2012.

Potesta, M, Legitimate Expectations in Investment Treaty Law: Understanding the Roots and the Limits of a Controversial Concept, ICSID Review - Foreign Investment Law Journal, Vol. 28, Issue 1, 2013.

Schreuer, C. and Kriebaum, M., At What Time Must Legitimate Expectations Exist?, Transnational Dispute Management, 2012.

Schill, S., Fair and Equitable Treatment under Investment Treaties as an embodiment of the Rule of Law, IILJ Working Paper, 2006/6.

Stone, J., Arbitrariness, the FET Standard and the International Law of Investment, Leiden Journal of International Law, Vol. 25, Issue 1, 2012. 

Vandevelde, K., A Unified Theory of Fair and Equitable Treatment, New York University Journal of International Law and Politics, Vol. 43, 2010.

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