Research On Legitimacy Of Protecting Legitimate Expectation In Fair And Equitable Treatment

In the investment agreement,fair and equitable treatment has been as an important standard,its connotation and denotation is not clear,But it is often invoked in arbitration practice.And as for legitimate expectation,although not appearing in the treaty,but in the academia and practice,legitimate expectation has been viewed as an important element under the fair and equitable treatment,many investors’claims on violation of the legitimate expectation have been supported by tribunal.A lot of academic research in China is based on this premise that legitimate expectation focusing on the content of the reasonable expectation instead of paying attention to how tribunal put forward this concept.But recently many bilateral investment treaties directly exclude the legitimate expectation under fair equitable treatment.For instance as the second generation of the NAFTA,The USMCA clearly limits the application of legitimate expectation,the violation of the legitimate expectation cannot constitute breach of the treatment alone,the European Union-Singapore Investment Protection Agreement also did the same,which leads this author consider that,how come the legitimate expectations been put forward?Is the status of legitimate expectation under fair and just treatment justified?In the first chapter this author will introduce the relationship between the fair and equitable treatment and protection of legitimate expectation.First,a detailed analyzation of the definition and function of fair and equitable treatment will be given.secondly analyzes the connotation of the protection of legitimate expectation and trace back to domestic laws briefly.After that this author then puts forward that legitimate expectation is the most important element under fair and equitable treatment.Since it is an important element,why should the relevant treaty exclude and limit it?After raising questions,the author will discuss the clauses of fair and equitable treatment and the different interpretations of different provisions of fair and just treatment made by the arbitral tribunal,which will pave the way for the classified discussion and analysis below.The second chapter explores the legitimacy of the legitimate expectation under the autonomous treatment.Firstly,it summarizes the facts of the case in which the legitimate expectation was first put forward,combs the logical derivation process of the reasonable expectation put forward by the arbitration tribunal,and briefly summarizes the development of the legitimate expectation in the subsequent cases;Secondly,it demonstrates and analyzes the legitimacy of this under the clause,and makes it clear that the protection of legitimate expectation does not have any legitimacy under the autonomous treatment by analyzing the reasoning of the arbitration tribunal,the source of law and the scope of treaty protection one by one.The third chapter explores the validity of legitimate expectation under treatment.Firstly,it combs the cases that first put forward reasonable expectation,This paper analyzes how it is brought into the fair and just treatment by the arbitration tribunal under this clause,analyzes its legitimacy,and draws a conclusion that it is not justified.It also comments on the subsequent restrictions and their effects,and concludes that the restrictions under this clause do not completely exclude the possibility of reasonable expectation.The fourth chapter introduces the latest development of fair and equitable treatment clause and its restrictive effect on legitimate expectation;lists and analyzes the current situation of fair and just treatment clause in China,and concludes that the existing fair and equitable treatment clause in China will be expanded by the arbitration tribunal;and the newly signed RCEP has a better restrictive effect,but it can not completely exclude the risk of applying legitimate expectation.So the most effective method to improve the fair and equitable treatment clause is to explicitly exclude the application of legitimate expectation in the clause.