Recent Trends in Investment Arbitration Concerning Legitimate Expectations

Abstract

The article addresses how the obligation not to frustrate legitimate expectations has been interpreted and applied in recent investment disputes arising out of amendments in domestic regimes in the renewable energies sector. The analysis will address cases against Czechia, Italy and Spain, the Countries currently facing the majority of disputes for alleged breaches of the Energy Charter Treaty. Jurisdictional issues related to the case law at hand, such as those stemming from intra-EU arbitration, will not be addressed. The contribution is divided in three parts, next to the introduction. First, the notion of legitimate expectations will be analysed. Second, the Czech, Italian and Spanish cases will be addressed, briefly sketching the respective domestic legal frameworks. As a conclusion, it will be suggested that tribunals have considered the fact that a State is exercising its regulatory power, and a potential lack of investors’ due diligence, in diminishing the quantum of compensation, and that such case law adds to the establishment of general “interpretative elements” of FET.