Protection of Legitimate Expectations in Investment Treaty Arbitration: A Theory of Detrimental Reliance

This book evaluates the core of the concept of legitimate expectations from first principles in moral philosophy. It adopts an unconventional approach by examining this topic from a deep, philosophical perspective and delves into the debates on the binding nature of promise in moral philosophy. It then develops a doctrinal structure for the standard of protection. The author places the key premise of the book on the possibility of deriving firm conclusions from the debate and on creating a set of precise and prescriptive 'guidelines of the application of legitimate expectations'. The features of this book are threefold: first, a significant body of literature on moral philosophy is assimilated; second, core philosophical principles are extracted and expressed as a normative framework to resolve concrete cases; third, the author analysed a vast number of investment treaty awards against the underlying framework.

Table of Contents:
Part I. Why Do We Need a Theory of Legitimate Expectations?: 1. Introduction; 2. The formalist conception of legitimate expectations and different paradigms of the investment treaty regime: a critique; Part II. What is the Theory of Legitimate Expectations?: 3. Theoretical foundations for the use of moral philosophy of promise and conceptualisation of legitimate expectations; 4. The voluntarist conception of legitimate expectations and enforcement of sovereign promise; 5. 'Letting investors down', protection of trust, and assurance conception of legitimate expectations; 6. Protecting against investors' detrimental reliance: reliance conception of legitimate expectations; 7. In search of the most suitable conception of legitimate expectations; Part III. What is the Application of the Theory of Legitimate Expectations?: 8. Normative consequences of the reliance theory of legitimate expectations; 9. Rethinking remedies for a breach of legitimate expectations: corrective justice and reliance damages.

About the Author :
Teerawat Wongkaew is a legal officer at the Department of Treaties and Legal Affairs, Ministry of Foreign Affairs, Thailand. His current practices focus on treaty-making and public international laws issues, in particular, international investment law, international humanitarian law and the laws of international organizations. He was previously Legal Adviser at the Department of International Economic Affairs of Thailand, involved with the negotiations of bilateral and regional investment treaties as well as free trade agreements and investment treaty disputes. He earned degrees in Law with French Law and Master of Law (LL.M.) from University College London. In 2016, he completed his Ph.D. study at the Graduate Institute of International and Development Studies, Geneva. He worked as a legal consultant at International Investment Agreement Division, United Nations Conference on Trade and Development (UNCTAD).

Review :
'This book presents a fresh outlook on the theory of legitimate expectations as applied prominently in the jurisprudence of investment tribunals. Building on detailed knowledge of the relevant cases, Teerawat Wongkaew manages to offer fascinating insights into the underlying philosophical theories of legitimate expectations. He makes a compelling argument in favour of a reliance conception that introduces core elements of the traditional estoppel principle into the debate and provides a suitable framework of analysis.' August Reinisch, University of Vienna 'By drawing on the moral philosophy of promise, this book takes a novel, unexplored route in developing a doctrinal structure and theory for the understanding and application of the concept of legitimate expectations. It is independent and unconventional thinking at its best and shows that legal philosophy and international investment law have more potential for fruitful interaction than many would have thought.' Stephan Schill, University of Amsterdam 'Teerawat Wongkaew's work is a brilliant effort to provide a moral and carefully nuanced basis for the use of legitimate expectations that both grounds as well as limits the use of this concept as the basis of responsibility of states. The philosophical and moral rationalisation it provides will guide scholarship on the subject even when it provokes dissent. The capacity of this work to provoke thinking on a subject that deeply affects the legitimacy of investment arbitration will set it apart as the most meaningful work to have been written thus far on this subject.' M. Sornarajah, National University of Singapore 'This is indeed a serious and thoughtful attempt at clarifying a concept too often invoked outside any elaborated definition; a book which, for sure, will be as interesting and useful for practitioners as for scholars interested in the current development of the international law of investments.' Pierre-Marie Dupuy, Graduate Institute of International and Development Studies, Geneva