11.7 The Respondent, whilst conceding that FET has been
interpreted by a number of tribunals as including the right
to protection of legitimate expectations, submitted that “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 that the investors may
have or claim to have”. The Tribunal considers this as a
rather circular and unacceptable argument. The Treaty
promised FET and “legitimate expectations” come within
FET’s parameters.
11.8 The Respondent submitted that, if the Claimant’s
expectations are to be protected, then the whole of the
Claimant’s expectations at the time the investment was
made, modified over time, must be taken into account. In
particular, MoA2 modified the Claimant’s expectations
markedly.
11.9 Moreover, the Respondent submitted, the Claimant’s
legitimate expectations as an investor were affected by the
following factors:
(a) The Claimant had only a minority stake in DMT.
(b) The Claimant had no special rights of control over
DMT under the Shareholder’s Agreement.
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(c) The value of the investment was imperfectly
protected under the Concession Agreement by
clauses 25 and 31.
(d) The Claimant made a profit on the contracts to build
the Tollway and the Northern Extension.
11.10 Professor Crawford argued that the reasonable expectations
of the investor, consistent with contractual and other
proprietary arrangements, have to be considered over and
above domestic law manifestations, because of the principle
of parallel protection of rights under the Treaty. He
submitted that the various dicta (such as those quoted
above) set out a list of administrative practices to which an
investor can legitimately expect a host state to conform.
11.11 The legitimate expectations doctrine has been applied to
protect the substantive expectations of investors where
particular promises have been made – Eureko v Poland (cit
supra) and CMS v Argentina49
. As was noted in an article by
Steven Fietta50
, “…The question of whether or not there has
been a violation of the standard will turn on what legitimate
expectations the investor had in light of the specific
assurances given by the relevant state authorities against
the background of the domestic legal framework that was to
govern the investment”.
11.12 The Respondent referred to Professor Crawford’s 2007
Freshfields Lecture51 which emphasised “In particular, the
doctrine of legitimate expectations should not be used as a
substitute for the actual arrangements agreed between the
49
CMS v Argentina ICSID Case No. ARB/01/8, Decision on Annulment of 25 September
2007.
50 Steven Fietta “Expropriation and the Fair and Equitable Standard: The Developing Role
of Investors Expectations in International Investment Arbitration” Journal of International
Investment Arbitration Vol. 23, No. 5 p 375 and p 388.
51 Prof James Crawford S.C. “Treaty and Contract in Investment Arbitration” (22nd
Freshfields Lecture) London, 29 November 2007.
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parties or as a supervening and overriding source of the
applicable law.”
11.13 The Respondent, accordingly, submitted that, whilst it had
made a number of specific representations to DMT in
relation to the Claimant’s investment which were
incorporated within the Concession Agreement as amended,
those undertakings were incapable of engendering
substantive legitimate expectations.