Doctrine Of Legitimate Expectations Research Articles

STUCK AT A CROSSROAD? SUBSTANTIVE LEGITIMATE EXPECTATIONS IN ENGLISH LAW

AbstractIn “The Provenance and Protection of Legitimate Expectations” Forsyth argued that English law should protect substantive legitimate expectations. However, he was concerned that too great an expansion of legitimate expectations could lead to incoherence and intuitive decision-making. I argue that recent case law, and Forsyth's analysis, have clarified some of these inconsistencies. Nevertheless, the doctrine of legitimate expectations stands at a crossroads. Should it adopt a rules-based approach and narrow legitimate expectations, or a principled approach that embraces a broader conception? I argue that English law needs both for legitimate expectations effectively to balance legal certainty and substantive equality.

Do we need a theory of legitimate expectations?

AbstractIn recent years, it has become common to see claims that the doctrine of legitimate expectations has no sufficiently defined purpose, and that administrative law scholars should do more theoretical work to bring coherence to this area of law. In this paper, I suggest this ‘conceptual critique’ of legitimate expectations is misplaced and that, instead, it reveals a much wider failing of contemporary administrative law scholarship. First, I show how there has not yet been, and is unlikely to be, a satisfactory answer to the conceptual critique. Following on from this premise, I suggest that the assumptions underlying the conceptual critique are faulty and, administrative lawyers need to fundamentally alter and expand how they study legitimate expectations. The aim now, I argue, must be to move towards providing an account of the practice of legitimate expectations in the wider context of public administration. My specific argument in this paper is thus a case for a significant reorientation and an expansion of the study of how law protects legitimate expectations, but the wider suggestion is that the same shift is required in administrative law scholarship generally.

No Objections: Constitutional Analysis of Censorship & Film Certification on OTT Platforms

In recent years, the Central Board of Film Certification has showcased a phenomenon of demanding ‘No Objection Certificates’ from filmmakers, as a part of the film certification process. This trend exists in a paradigm of legal uncertainty pertaining to the certification of cinema on Over-The-Top streaming platforms. Against this backdrop, the paper analyses the Central Board’s practice of demanding ‘No Objection Certificates’, through a constitutional lens by examining the jurisprudence of the courts on free speech, film certification and the doctrine of legitimate expectations. This analysis culminates in proposals for reforms with respect to the law on film certification and institutional reforms within the Central Board itself.

Public law foundation of the doctrine of legitimate expectations in India

ABSTRACTThe doctrine of legitimate expectations (hereinafter LE) is one of the key features of judicial review both in common law and continental traditions. Paul Craig has summarized three ways in which LE are usually generated: the courts may decide that the interest, although not presently held, is important enough that an applicant should not be refused it without having some procedural rights afforded to him. LE may be generated by representations. Representation may provide the foundation for the procedural rights as well as augment the extent of procedural rights granted to the applicant. Where a public body having set out the criteria for the application of policy in a certain area, and applicant having relied on the same and the public body then seeking to apply different criteria. The doctrine of LE has a recent origin in Indian administrative law. This paper maps its journey by establishing that the constitutional value of rule of law underpins its protection and enforcement in India.

The Doctrine of Legitimate Expectations in Tax Relations

The article deals with the doctrine of legitimate expectations in relation to the Russian tax sphere, which is popular in the European and American legal order. The main idea of the doctrine is the deterrence of the discretionary beginning of public authorities in the implementation of their activities. The promise given by the authorities forms a certain individual expectation, which is subject to protection if it is in the rank of «legitimate». Accordingly, the public authority is bound by this promise and is not free to change or cancel it; there must be a good reason and appropriate justification for making a decision that runs counter to formed expectations. The government must meet the expectations created by it, or at least to minimize the negative effect of the unpredictable deviation from this promise, including through the compensation mechanism. The reverse would mean arbitrary use of power and would contribute to an atmosphere of distrust of the law and the actions of the state. The legal positions of the Constitutional Court of the Russian Federation, revealing the principle of maintaining the trust of citizens to the law and the actions of the state as a form of manifestation of western doctrine in the Russian version. It is concluded that the sovereign rights of the state in the matter of taxation do not make its power absolute. The state is not only the bearer of power, but also the main guarantor of the rights and legitimate interests of the person (taxpayer). It is the legal principles and human rights that underlie his legitimate expectations, define the discretionary limits of powers and criteria of discretion of the authorities and act as a deterrent to the fiscal appetite

LEGITIMATE EXPECTATIONS AND HMRC ADVICE

For the tax system to function efficiently, it is necessary for the tax authority to provide advice to taxpayers. What is the consequence however where the advice is predicated on an error of law, and HMRC then later seeks to correct this error? That is precisely the question that came before the Court of Appeal in HMRC v Hely-Hutchinson [2017] EWCA Civ 1075; [2017] S.T.C. 2048. The judgment underlines the difficulties that taxpayers will face when seeking to rely upon HMRC assurances and when seeking to invoke the doctrine of legitimate expectations generally. The specific facts of the case might however be viewed as limiting the scope of the judgment.

Plan B: A Theory of Judicial Review

There is no general theory of the grounds of judicial review (e.g., the rule against bias, the doctrine of legitimate expectations, unreasonableness). Here I try to fill the gap. My theory draws on ideas from the philosophy of law and the philosophy of action, but it’s a simple theory. Officials make decisions for the community. Their decisions are subject to requirements of instrumental rationality. Ideally, officials would figure out for themselves how to live up to these requirements. Because officials aren’t perfect, the law also has “Plan B”, which is for judges to ensure that officials do what rationality requires of them. The grounds of judicial review are simply the grounds on which it’s rational for officials to reconsider, retain, suspend, or apply their decisions. The “Plan B theory”, as I call it, doesn’t account for every detail of judicial review. Even so, the theory is powerful, parsimonious, fruitful, and sharply at odds with almost everything else written about judicial review.

THE PRIVY COUNCIL AND THE DOCTRINE OF LEGITIMATE EXPECTATIONS MEET AGAIN

UNITED Policyholder Group v Attorney General for Trinidad and Tobago [2016] UKPC 17 provided the Privy Council with its second opportunity in recent years to consider the doctrine of legitimate expectations (the first being Paponette v Attorney General of Trinidad and Tobago [2010] UKPC 32; [2012] 1 A.C. 1). The appellants were a group of individuals who held policies in a company known as the Colonial Life Insurance Company (CLICO). On learning in 2009 that CLICO was in serious financial difficulty, the then Government of Trinidad and Tobago had publicly issued a number of assurances to the effect that it would undertake a vast restructuring programme in order to ensure that CLICO's contractual liabilities to such policyholders were fulfilled. Following its election in 2010, the new Government changed direction; it found that CLICO's financial difficulties were much graver than had been originally anticipated and, accordingly, determined that the Government would take a different course with the consequence that CLICO's liabilities would be fulfilled to a less generous degree than originally represented.

Treinta años de ius publicum commune europeo en España

This dissertation briefly examines the process by which a body of common public law has been introduced in the Spanish legal system, over the last 30 years, under the influence of the EU law. The origins of that ius commune can be traced to the general principles recognized and applied by the European Court of Justice. In doing so, the ECJ has drawn first and foremost on common legal principles in the various EU member states. These general principles have taken a round-trip though: once they have been reshaped as a ‘European synthesis’, they have reenter the Member States legal systems as rules with a far reaching mandatory effect, binding national public bodies not only when they are implementing Union law, but also when their actions lay outside the scope of EU law. In order to explain this course, this paper proceeds through three different examples: the power and duty of national courts to apply interim relief in order to ensure the full effectiveness of EU law, Member State liability for breach of EU law and the doctrine of legitimate expectations.

A Pluralist Account of Deference and Legitimate Expectations

Critics doubt the existence of any coherent doctrine of legitimate expectations in the common law. Legitimate expectation is said to be a vague concept which permits judges to trespass into the legislative and executive domains and distribute palm-tree justice. In my view, however, coherence can be attained. That the doctrine may not map clearly onto the various justifications offered for it from time to time is not a great surprise. The doctrine is of recent provenance and, as is the case with the common law, its development has not followed inexorably from an agreed set of first principles. Some underlying theory is needed to assist in answering difficult doctrinal questions. I propose a pluralist approach to the doctrine of legitimate expectations. Several values -- the rule of law, good administration, democracy and separation of powers -- can be found in the decided cases. Faced with values found in the cases that are individually appealing but which may be in tension, coherence can be achieved by adopting a pluralist approach that does not assign priority to any one value but seeks instead to reconcile them.Three controversial doctrinal questions form a crucible within which the appropriate interaction of the rule of law, good administration, democracy and separation of powers can be observed and the advantages of a pluralist approach appreciated. These are, first, the role of knowledge and reliance, second, substantive legitimate expectations and third, expectations based on ultra vires representations. I argue that neither knowledge nor reliance should be a pre-requisite to the enforcement of legitimate expectations. On substantive legitimate expectations, I take the side of the Court of Appeal in Coughlan, arguing in the teeth of strong criticism of that decision that there are indeed good reasons for courts to enforce substantive legitimate expectations, though I also observe that the Court of Appeal probably went too far in one important respect. And as to ultra vires representations, I ally myself with those who have advocated a balancing approach that would permit courts to enforce them in some circumstances.

Editorial

The first edition of 2015 boasts 13 contributions dealing with a variety of topics. The first article, by Ben Coetzee Bester and Anne Louw, discusses the persistence of the "choice argument", which is based on the rationale that domestic partners who choose not to marry cannot claim spousal benefits, and arrives at the conclusion that legislation should differentiate between registered and unregistered domestic partnerships for the purpose of spousal benefits. Ernst Marais has written two articles on expropriation. In the first he examines the meaning and role of state acquisition in South African law and in the second he deals with the distinction between deprivation and expropriation in the light of Agri South Africa v Minister for Minerals and Energy 2013 4 SA 1 (CC), where the Constitutional Court recently revisited the distinction between the two concepts and held that the distinguishing feature of expropriation is that it entails state acquisition of property, whilst deprivation takes place where there is no such acquisition. The fourth article, by Emeka Amechi, explores the measures taken by the National Recordal System and Disclosure of Origins in leveraging traditional knowledge within the structure, content and conceptual framework of the patent system in South Africa. The South African Companies Act and the realization of corporate human rights responsibilities is the focus of Manson Gwanyanya's article. He comes to the conclusion that the wording of the Act is such that it prevent human rights abuses by companies. In her contribution Melanie Murcott discusses the development of the doctrine of legitimate expectations in South African law and the failure of the Constitutional Court to develop the doctrine even further in the recent case of Kwazulu-Natal Joint Liaison Committee v MEC for Education, Kwazulu Natal. The second last article, which is by Lucyline Murungi, considers the implementation of the UN Convention on the Rights of Persons with Disabilities (2006) to provide for inclusive basic education in South Africa, and the last article, which is by Matome Ratiba, examines the significance of places of worship for Native Americans and demonstrates the valuable lessons South Africa could learn from the earth jurisprudence that has developed in the USA and elsewhere. The first note, authored by Magdaleen Swanepoel, discusses legal issues with regard to mentally ill offenders with specific reference to the cases where mental illness is raised as a defence in criminal cases. The second note, by Michelle Fuchs, deals with recent legal developments relating to the formalities involved when a mortgagee wants to declare immovable property executable to satisfy outstanding debt. The last contribution in this edition is a case note by Elmarie Fourie. She considers the question of what constitutes a benefit in terms of section 186(2) of the Labour Relations Act 66 of 1995, which was examined in Apollo Tyres South Africa (Pty)Ltd v CCMA 2013 5 BLLR 434 (LAC).
 

Indirect Expropriations and Regulatory Takings: What Role for the 'Legitimate Expectations' of Foreign Investors?,

The aim of this paper is to analyze the role of “legitimate expectations” of foreign investors in international investment rules governing indirect expropriations (or creeping expropriations or regulatory expropriations). The issue is not just a theoretical one. To the contrary, what role foreign investors' expectations should play (if any) vis-a-vis indirect expropriations is a practical issue if one looks not only at the investment case law but also at the most recent State practice on international protection of investments. A definition of indirect expropriation is provided in section 2. A brief overview of the role of legitimate expectations of foreign investors in investment case law and State practice is provided in section 3. In this respect, the concept of legitimate expectations will be discussed in connection with the Tecmed case and the U.S. practice, annexing interpretative notes on indirect expropriation to its BIT provisions on expropriation. In section 4 some key features of the case law of the Court of Justice of the European Union (CJEU) and the U.S. Supreme Court in respect of the protection of individuals' economic expectations vis-a-vis regulatory actions are outlined. In section 5 the conclusion is drawn that the reference to investors' legitimate and reasonable expectations in the context of regulatory expropriation claims can pave the way to the use of the doctrine to restrict the scope of the international protection of foreign investors, as opposed to the asserted too far reaching protection of foreign investments granted by the doctrine of legitimate expectations in the context of denial of fair and equitable treatment claims.

THE COHERENCE OF THE DOCTRINE OF LEGITIMATE EXPECTATIONS

AbstractThe doctrine of legitimate expectations is a developing area of administrative law, and many issues remain outstanding. Promises, practices, and policies generate legitimate expectations, but what is special about them? Why do they and only they generate legitimate expectations? The lack of an obvious answer has led some commentators to claim that the doctrine is ultimately incoherent and should be disaggregated. In this paper, we challenge this claim by arguing, first, that promises, practices, and policies each comprise or make applicable a certain type of rule, and second, that having a legitimate expectation is a matter of such a rule binding a public body to act in some way. This rule-based account gives the doctrine of legitimate expectations both coherence and distinctiveness.

HMRC's Management of the U.K. Tax System: The Boundaries of Legitimate Discretion

To operate efficiently and effectively revenue authorities require discretion, but processes must be in place to keep discretion in check. This delicate balancing act takes place against the background of a more general constitutional framework. This chapter outlines the unique features of the UK constitution that form the background to the way in which the discretion of the UK revenue authorities (HMRC) is assessed and controlled. It then discusses a limited, yet crucial, set of discretions vested in HMRC. The chapter focuses particularly on the use of non-statutory guidance. It discusses the operation of judicial review, and in particular, the doctrine of legitimate expectations, in the context of such guidance.

The Doctrine of Legitimate Expectations in Investment Treaty Law

The idea that a breach of the investor’s ‘legitimate expectations’ may be relevant in deciding upon a violation of an investment treaty has been recurrently put forward by claimants in investment treaty arbitrations and endorsed by a growing number of arbitral tribunals in the last few years. However, the picture emerging from this jurisprudence is rather fragmented and often contradictory. The paper will first attempt to trace the roots of the concept of legitimate expectations, thus looking at domestic administrative law systems and the EU system, which protect legitimate expectations in a number of situations (Part I). It will then turn to the investment treaty context, where the doctrine has found its most popular application under the fair and equitable treatment standard. The paper will identify patterns of governmental conduct in relation to which a breach of legitimate expectations has been found (Part II). These involve situations where the investor is able to invoke contractual commitments (II.2.A); unilateral representations of the state (II.2.B); and a right to a stable regulatory framework (II.2.C). The latter poses particular problems, because unqualified protection of legitimate expectations may have the effect of fettering the state’s right to regulate. The paper highlights that for the expectation to be reasonable, and hence legitimate, arbitral tribunals ought to consider both the socio-economic circumstances of the host state, and the investor’s own conduct (III).

Treaties and Legitimate Expectations – The Rise and Fall of Teoh in Australia

In an earlier edition of this journal, Sanjay Patel argued that unincorporated treaties could and should provide the foundation for legitimate expectations by individuals seeking judicial review of administrative action. This suggestion drew support from the decision of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (1995) 183 CLR 273. That case broke new ground by holding that an unincorporated treaty could found a legitimate expectation that administrative officials would normally act in accordance with the terms of the treaty. Teoh’s case appeared to signal a greater recourse to both legitimate expectations and treaties in administrative decision making but was soon overtaken in Australian by wider constitutional issues in Minister for Immigration and Ethnic Affairs; Ex parte Lam [2003] HCA 6 (2003) 214 CLR 1. In that case the High Court of Australia strongly doubted both Teoh and the doctrine of legitimate expectations that underpinned it, though it seemed mainly concerned to ward off any recourse to the substantive variant of the legitimate expectation that was accepted in R v North and East Devon Health Authority; Ex parte Coughlan [2001] 1 QB 213. Teoh was thus left in limbo in its country of origin, yet it continues to attract interest in other jurisdictions.This article examines the Australian response to Teoh and explains why the case waned in Australia. It will be argued that the government and judicial responses to Teoh are contradictory and have failed to confront the central questions posed by Teoh. The article also explains why any substantive version of legitimate expectations remains beyond the reach of Australian courts. Legitimate expectations of both the procedural and substantive kind have become casualties of a much wider constitutional battle. The courts appear to have won the day and secured the central elements of their supervisory role but they have ceded territory in areas such as legitimate expectations.

Clarity and ambiguity: a new approach to the test of legitimacy in the law of legitimate expectations

This paper examines the legitimacy element of the doctrine of legitimate expectations in English administrative law. It argues that the underlying principle is the voluntary assumption of responsibility that comes from analysing a promise as a social convention. From this underlying principle, it argues that the current ‘clear unambiguous representation’ test is insufficiently certain and instead advocates a three-stage test centred round the courts' ability to make an order, the objective construction of the promise and the decision makers' intent. This test, it is argued, explains the decided cases, as well as providing a robust structure for future decisions.

Legitimate Expectations in English Law: Too Deferential an Approach?

1. This article attempts to tie together two common themes in previous articles in this journal.1 These are the doctrine of “legitimate expectations” and the analytical tool of “deference”. The notion of “deference” is declining to adjudicate due to direct or concomitant determination of law or policy. The doctrine of legitimate expectations in English law protects individuals from changes to representations made by government bodies. This protection can arise by giving individuals either due process rights or substantive rights.2 However, in English law the doctrine by and large follows the former approach over the latter. This can be stated to be “deferential” to the law and policy maker.

New directions in public law in the Commonwealth Caribbean – some reflections

This article critically assesses how some public law principles, including the doctrine of legitimate expectations, are applied in the Commonwealth Caribbean. It proceeds to discuss the impact of international law on public law and to note that, through the implementation of unincorporated treaties into domestic law, the principle of dualism is increasingly losing its significance and protective effect. The consequence of this is that Governments will continue to want more opt outs and will be more cautious about signing treaties which they are not ready to implement.

Judging in Splendid Isolation

The article, taking the reception of international law in Canadian law as a case study, argues that the paradigmatic picture of the judicial function has been evolving as a result of the increased reliance on international legal norms by domestic judges. The place given to customary international law and the constitutional process for consenting to the ratification of treaties signal a dual layer of perceived lack of legitimacy on the part of judges. The first relates to the issue of bindingness of international norms on the state, and the concern of judges that they are not in a position to introduce into domestic law legal standards which have not received acceptance by a more representative branch of Government. The second touches on bindingness of international norms in the state, and the desire of judges to protect the integrity of the constitutional balance of power among the executive, legislative and judiciary. Both perceived shortcomings of judicial legitimacy are evolving, however, as reflected in doctrinal and judicial discussions of a 'constitutional dialogue' among the three branches of Government (internal dialogue) as well as a 'transjudicial dialogue' involving judges and other actors belonging to different states (external dialogue). A look at the presumption of conformity of domestic law with international law, the doctrine of legitimate expectations as flowing from treaty ratification, and the usefulness of declarations of incompatibility of national law with binding international obligations highlights a shifting paradigm: judges are moving from a self-conception grounded in splendid isolation to one which projects the judicial function as more proactive and necessarily collaborative.