Legitimate Expectations Research Articles

The Constitutional Complaint in Kosovo from the Perspective of State Liability and Constitutional Certainty

Abstract This article analyses the constitutional complaint in Kosovo through the lens of governmental liability and constitutional certainty. Although it is one of the most significant legal mechanisms for the protection of human rights in Kosovo, the remedial impact of a constitutional complaint does not appear to be appropriate for granting ‘just satisfaction’ and holding a public authority accountable for a violation of constitutional rights. To make the state’s constitutional liability for human rights violations a reality, additional legislative reforms are necessary. The introduction of ‘constitutional damage’ award in the context of the Kosovan constitutional judiciary is therefore especially pertinent to this end. Such a remedy would hold the state accountable for abuses of human rights originating from the unconstitutional behavior of government officials. It would finally provide victims of constitutional rights violations with appropriate means of legal redress, which is the ultimate end of constitutional justice. The constitutional principle of ‘legitimate expectation’ is also not unimportant in this context. By offering a critical perspective on the Constitutional Court’s case-law, this article argues for the significance of adhering to the ‘legitimate expectations’ principle to ensure equality of the parties in constitutional litigation proceedings and a constant development of constitutional jurisprudence that is vital for the Kosovan democracy.

Interpersonal helping in the workplace: social expectation predicts anticipated guilt and intention to help a coworker

ABSTRACT Promoting interpersonal helping among coworkers is an important aim for any organisation that cares about employee well-being. Drawing on guilt aversion hypothesis, this research focuses on the power of social expectations in promoting prosocial behaviour among employees and investigates the role of anticipated guilt for failing to meet coworkers’ expectations. In two preregistered studies, the effect of beneficiary expectation on benefactors’ anticipated guilt and intention to help was investigated. In Study 1, Japanese participants (n = 284) recalled a situation when they helped a coworker spontaneously, and evaluated perceived beneficiary expectation to receive help, as well as anticipated guilt for not helping. Beneficiary expectation positively predicted anticipated guilt, and the effect was stronger when the beneficiary was a same-status colleague, and when interpersonal helping frequency in the organisation was low. Study 2 (n = 499) employed vignettes and manipulated beneficiary expectation. A mediational model revealed that beneficiary expectation leads to more anticipated guilt for not helping, which, in turn, increases employees’ intention to help. Together, these studies show that employees are sensitive to their coworkers’ expectations, and guilt-averse; therefore, interpersonal helping among employees may be promoted by establishing legitimate expectations of prosociality in the workplace.

Article: The FET Standard between Treaty Reform and ISDS Practice: An Analysis of the Modernized ECT

The Modernization of the Energy Charter Treaty (ECT) counts as a prominent attempt to better incorporate climate change considerations into an investment treaty that is highly impactful from a climate change perspective. Among other initiatives, reform efforts in the ECT Modernization have led to amendments of key standards of treatment providing the substantive legal basis for claims by foreign investors. Focusing on the Fair and Equitable Treatment (FET) standard, this article contrasts the new treaty provision under Article 10 of the ‘modernized’ ECT with consolidated interpretations of the FET standard in previous arbitral practice. Building on such a jurisprudential analysis, this article evaluates the extent to which reformed standards of investment protection in the Modernized ECT can lead to an increased likelihood of climate-aligned outcomes in investor-State disputes, thereby providing an analytical assessment as to the potential of the newly introduced ECT provisions on FET – which may also serve as benchmark for further reforms of international investment agreements (IIAs) – to expand regulatory space for host States and support the adoption of more stringent climate policies. Fair and Equitable Treatment, Energy Charter Treaty, Modernization, Investor-State Dispute Settlement, Climate Change, Regulatory Space, Investment Arbitration, Fossil Fuels, Legitimate Expectations, Treaty Reform

The mechanism of the social state and the place of the pension system in it: theoretical and legal aspects

The article is devoted to the theoretical and legal study of the role and place of the pension system in the mechanism of the social state on the example of the modern Ukrainian legal experience. Based on the analysis of legislation, doctrinal positions and practice of the Constitutional Court of Ukraine, the author has formulated the own vision of the substantive and ontological core of pension provision. It is demonstrated that pension provision as a set of legal relations and a real legal phenomenon in the substantive and ontological dimension cannot be identified either with the process of providing an individual with a set of certain social and material services (procedural approach), or with a set of measures taken by the State to meet the needs of an individual for adequate material security upon reaching retirement age or due to adverse social circumstances which exclude their opportunities for active participation in economic and social life. According to the human-centred paradigm, the substantive and ontological essence of pension provision is not only the right (legal possibility) to demand from the state a certain level of pension payments in accordance with certain objective criteria, but also the real possibility to receive such payments in the amount that allows a person to maintain a decent existence, to ensure their key needs in life and social environment, avoiding poverty and social isolation.
 The importance of the State’s guarantee of the right to pension as a component of the constitutional right to social protection is substantiated. It has been revealed that the social state implements such a social policy which guarantees not only pension payments, but also their amount, frequency of receipt and indexation in accordance with the established procedure, which ensure that every person entitled to a pension has an adequate standard of living, the stability of the established standards of pension provision, the guarantee of this provision, the predictability of the legislative policy of pension provision (in accordance with the concept of legitimate expectations), and the appropriate law enforcement policy of pension provision. It has been proved that in the context of the social state concept, the problem of legislative fixation of the optimal model of pension provision (which would take into account the issues of determining the amount of pension provision, their ranking in various, including special, laws, methods and pace of pension indexation, etc.), taking into account the economic situation of the State and the compliance of such provision with the task of realisation of basic human needs for decent living conditions, requires careful consideration (in accordance with the concept of “space for consideration”). The article emphasises that compliance with the constitutional principles of the social state requires legislative regulation of pension provision on the basis of equity and proportionality, taking into account the State’s obligation to ensure decent living conditions for every citizen of Ukraine.

Article: Environmental Exception and the Legitimate Expectations of Investors in Investment Arbitration

The aim of this study is to examine the application of the protection of investor legitimate expectations in investment arbitration cases involving environmental regulations. On the one hand, States commonly maintain – and on occasions successfully – that their act are consistent as a legitimate exercise of their right to regulate. On the other hand, investors more commonly prevail by advancing claims based on the protection against expropriation and on the fair and equitable treatment clause, provided for in the applicable investment treaty. Both substantive standards involve the protection of investor expectations, albeit in distinct courses of action. In this context, the question to be assessed is whether, and if so to what extent, the legal notion of legitimate expectation has been a key factor to the outcome of environmental disputes between foreign investor and host States. To address this issue, we have selected nine awards on merits, issued between 2016 and 2022, representing the most recent case law in this subject. Our primary observation is that the notion of legitimate expectation did not prove to be decisive in awards favoring investors, thereby contradicting the prevailing common understanding. Investment arbitration; right to regulate; legitimate expectations; protection of the environment; environmental disputes.

Exploring how non-clinical factors in childbirth care shape users’ experiences in public health facilities in rural Chiapas, Mexico: a qualitative study using the WHO health systems responsiveness framework

IntroductionMany Mexicans face barriers to receive delivery care from qualified professionals, especially indigenous and poor sectors of the population, which represent most of the population in the state of Chiapas. When access to institutional delivery care is an option, experiences with childbirth care are often poor. This underscores the need for evidence to improve the quality of services from the user’s perspective. The present study was conceived with the objective of understanding how non-clinical aspects of care shape women’s birthing experiences in public health institutions in Chiapas.MethodsWe conducted an exploratory qualitative study. Data collection consisted in 20 semi-structured interviews to women who had delivered in a public health facility in Chiapas during the last six months prior to the interview. For the design of the interview guide we used the WHO health system responsiveness framework, which focus on the performance of the health system in terms of the extent to which it delivers services according to the “universally legitimate expectations of individuals” and focuses on the non-financial and non-clinical qualities of care. The resulting data were analyzed using thematic analysis methodology.ResultsWe identified a total of 16 themes from the data, framed in eight categories which followed the eight domains of the WHO health systems responsiveness framework: Choice of the provider and the facility, prompt attention, quality of basic amenities, access to social support, respectful treatment, privacy, involvement in decisions, and communication. We shed light on the barriers women face in receiving prompt care, aspects of health facilities that impact women’s comfort, the relevance of being provided with adequate food and drink during institutional delivery, how accompaniment contributes positively to the birthing experience, the aspects of childbirth that women find important to decide on, and how providers’ interpersonal behaviors affect the birthing experience.ConclusionsWe have identified non-clinical aspects of childbirth care that are important to the user experience and that are not being satisfactorily addressed by public health institutions in Chiapas. This evidence constitutes a necessary first step towards the design of strategies to improve the responsiveness of the Chiapas health system in childbirth care.

A critical evaluation of choice negotiation for patient-centred medicine and psychotherapy.

The present paper aimed at discussing how the process of decision-making should be taken care of in healthcare services. This is a position paper based on a review of the relevant literature about meaning-making processes in medical encounters and psychotherapy. Authors argued that choice options could be perceived as meaningful by patients if their uncertainties were taken into account and grounded on mutual understanding and reciprocal trust. To this end, any decision-making process should satisfy the patient's legitimate expectations by making choices and habits compatible. In depht analysis of meaning-making processes is crucial for better refining good practices of shared decision-making.

Reporting Tax Schemes Violates Legal Professional Privilege

In this article, the author discusses the judgment of the CJEU in the case C-694/20 Orde van Vlaamse Balies and Others, which extends the protection of professional secrecy for lawyers. In the context of combating aggressive tax planning, the CJEU ruled that requiring licensed lawyers to inform other intermediaries involved in a tax scheme is unnecessary and violates the right to respectful communication with the client. The CJEU’s view that legal professional privilege takes precedence over tax objectives and obligations is the main novelty of the judgment under review. Individuals who consult a lawyer, as well as a tax advisor, have a reasonable expectation that their communications will remain private and confidential. Therefore, except in exceptional circumstances, they have a legitimate expectation that their lawyer will not, without their consent, disclose to anyone the fact that they are the subject of his or her advice. Following the judgment, the European Commission will legislate to amend the DAC6 Directive so that it meets the requirements of EU primary law as identified by the Court.
 The judgment is also important because it recognises that legal professional privilege is not limited to advice given in the context of litigation, which has been a restrictive view in antitrust cases.
 In Orde van Vlaamse Balies and Others, in which the Court held that the duty to inform other intermediaries imposed by Article 8ab(5) DAC 6 interfered with the right to respect for communications between lawyers and their clients guaranteed by Article 7 of the Charter of Fundamental Rights, the Court gave primacy to primary law (the Charter of Fundamental Rights) over secondary law (DAC 6). In this context, a new jurisprudential trend can be observed in which a substantive review of the Tax Directive was carried out on the basis of the Charter of Fundamental Rights. In general, the CJEU has been reluctant to get involved in substantively reviewing EU secondary legislation. More recently, however, the CJEU seems to be carefully analysing provisions of EU directives that are not in line with fundamental rights.

Legitimate expectations in the context of requirements of the rule of law

The article looks into the concept of «legitimate expectations», a part of various legal categories. The Constitutional Court of Ukraine and general courts’ decisions are indicative of the national courts’ primary consideration of the concept through the «possessions» lens, following the well-established ECtHR case law under Article 1 of Protocol No. 1 of the ECHR as well as a legal certainty component, which is an element of the rule of law. A conclusion is drawn that «sufficient basis in national law» along with the well-established judicial practices, attributed thereto by the ECHR, serve as the key criterion setting apart individual’s «legitimate expectations» and hopes. For this reason, once a new category of disputes emerges and the courts dismiss the plaintiffs’ claims, the very existence of «legitimate expectations» over the respective period cannot be asserted even if certain provisions of the national law are declared non-constitutional at a later point. Therefore, the role of the court in shaping the «legitimate expectations» concept is emphasized. Should the «sufficient basis in national law» criterion stem from the ECHR practice, another criterion of good faith, a prerequisite to the existence of «legitimate expectations», could be deduced from the understanding of the legal certainty principle in the Venice Commission papers: the Rule of Law Report and the Rule of Law Checklist. The Grand Chamber of the Supreme Court case law was exemplified to reflect on the good faith criterion application. It was emphasized that «those who act in good faith on the basis of law» may expect that their hopes are recognized as «legitimate expectations» and they may count on the judicial protection in lieu of the court's function as a safeguard against arbitrariness pursuant to the rule of law. Key words: rule of law, rule of law requirements, legal certainty, legitimate expectations.

Role of Legal Certainty in Providing Economic Security: Ukraine’s Experience

Economic security is an element of the national security of the country. Even though regulation of economic security implies developing economic sectors or preventing threats, legal principles are not usually considered. The article analyzes how legal certainty as a principle forms a favorable environment, produces reliability, and encourages market players to realize their economic and entrepreneurial initiatives, provided that the country ensures a high level of it. A plurality of the elements of legal certainty makes the influence of the principle of legal certainty on the economic situation diverse and merely realized. It is proposed to divide these elements into two groups in the article. The first one consists of predictability, consistency, and stability. The second one incorporates the mechanisms, mostly legally provided, that prevent the violation of legal certainty. Further examples of court decisions and government acts show negative implications for economic security the violation of legal certainty can lead to. The stability that arises from legal certainty can help market players build their plans and calculate positive risks. Legal certainty contributes to the attraction of investments since profitability depends on the stability of legal regulation. Legitimate expectations are the components of the principle of legal certainty; they rely on the time an entrepreneur makes their business plans. Thus, the reliability that arises from respect to legitimate expectations plays a crucial role in long-term business planning. Immediate changes, the lack of enforcement caused by sudden changes in previously made decisions, and inconsistency in market management lead to a harmful economic effect on legitimate expectations.

Respecting Legitimate Expectations in Civil Contracts

Objective: This research aimed to examine the principle of respecting legitimate expectations in civil contracts.
  
 Method: The analytical approach is used to analyze the selected legal texts.
  
 Result The findings reflect that legitimate expectations are one of the basic constituent elements of contractual justice, and the principle of legitimate expectations cannot perform its desired function unless the contract is valid and these expectations are reasonable and legitimate.
  
 Conclusion: It was revealed that the principle of legitimate expectations in civil contracts leads to achieving contractual equilibrium and contractual justice through the economy in terminating contracts. Furthermore, the judge plays the primary and important role in evaluating the contractual interests that must be protected.
  
 Originality/value: Achieving the principle of legitimate expectations leads to attaining contractual balance and contractual justice through the main and effective role played by the judge in assessing contractual interests in civil contracts.

On the Functional Reinforcement of the Principle of Proportionality to Investors’ Legitimate Expectations in International Investment Arbitration

On the Functional Reinforcement of the Principle of Proportionality to Investors’ Legitimate Expectations in International Investment Arbitration

Certification as guidance for data protection by design

ABSTRACT Data protection by design is an obligation for data controllers according to article 25(1) of the General Data Protection Regulation (GDPR). The present paper explores the concept of data protection by design and proposes that data protection certificates can offer guidance to data controllers, about compliance with this GDPR obligation. An exploration of officially approved certification schemes shows that the certification requirements may lay down concrete use cases which can guide data controllers about compliance with the obligation of data protection by design. Even though these policies are not a comprehensive guide for data protection by design, they lay down valuable solutions with respect to effective compliance. Moreover, the data protection measures of compliance in certification criteria have been approved by the competent Data Protection Authority and possibly the European Data Protection Board. As the present paper argues, the official approval by the competent authorities creates legitimate expectations under European Union Law. Specifically, data controllers can legitimately expect that abidance by approved safeguards meets the expectations of the authorities that are entrusted with monitoring their compliance. For these reasons, certification though an ex post mechanism, can offer valuable ex ante guidance.

Peculiarities of consideration of court cases related to the limitation of jurisdictional immunity of the state

The article examines the issue of defining the specifics of the procedure for consideration of civil cases by a court of claims against a foreign state, which are related to the limitation of the jurisdictional immunity of the state. The authors analyzed the content of the European Convention on State Immunities of 1972 and the UN Convention on Jurisdictional Immunities of States and Their Property of 2004, the provisions recognized by international and national courts as reflecting norms of customary international law. Attention is drawn to the fact that, in addition to defining the form in which the state may waive immunity, the list of categories of cases in which the state does not enjoy immunity in the court of another participating state, the specified international acts also establish the procedural rules for the trial of relevant cases, in particular requirements for mandatory informing of a foreign state about a lawsuit filed against it and the results of its consideration. It is noted that by the norms of customary international law, in the case of non-application of the jurisdictional immunity of the defendant foreign state, one of the mandatory components of the procedure for consideration of the claim against the defendant foreign state by the court is the proper notification of the defendant foreign state about the allegations presented to it and about the results of their consideration by the court. Failure to comply with the above procedural requirements may create obstacles to the further implementation of court decisions in relevant cases regarding the possibility of applying these court decisions for enforcement on the territory of other states. It is noted that in cases of compensation for damage caused to the life, health, and property of natural persons because of the armed aggression of the Russian Federation, the position of the Civil Court of Cassation as part of the Supreme Court on the lack of need to notify the defendant country of legal proceedings on the relevant claims is controversial. Attention is drawn to the fact that the relevant practice of national courts is carried out in violation of the rules of formal, substantive, and procedural justice institutionalized by the international community, limits the legitimate interests of persons who have suffered damage from military aggression, transferring their rights to the status of legitimate expectations, as it can have negative consequences for the implementation of judicial decisions, taking into account the analyzed provisions of international law. A conclusion was drawn on the need to settle the issue of notification of the respondent state in cases of compensation for damage caused to the life, health, and property of individuals because of the armed aggression of the Russian Federation.

Institutions, Automation, and Legitimate Expectations

AbstractDebates concerning digital automation are mostly focused on the question of the availability of jobs in the short and long term. To counteract the possible negative effects of automation, it is often suggested that those at risk of technological unemployment should have access to retraining and reskilling opportunities. What is often missing in these debates are implications that all of this may have for individual autonomy understood as the ability to make and develop long-term plans. In this paper, I argue that if digital automation becomes rapid, it will significantly undermine the legitimate expectation of stability and consequently, the ability to make and pursue long-term plans in the sphere of work. I focus on what is often taken to be one of the main long-term plans, i.e. the choice of profession, and I argue that this choice may be undermined by the pressure to continuously acquire new skills while at the same time facing a diminishing range of professions that one can choose from. Given that the choice of profession is significant for not-work related spheres of life, its undermining can greatly affect individual autonomy in these other spheres too. I argue that such undermining of individual planning agency constitutes a distinctive form of harm that necessitates a proactive institutional response.

The practice of the European Court of Human Rights regarding the protection of rights in the field of social security

The article is devoted to the issue of protection of rights in the field of social security by the European Court of Human Rights. The evolution of the spread of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms to the category of social rights in the practice of the Court has been considered. The positions of domestic experts regarding the protection of the rights of the ECHR in the field of social security have been analyzed. The provisions of the Convention under which social rights are protected have been highlighted. The procedure defined by the ECHR for analyzing whether a property right has been interfered with in breach of the Convention has been represented. The main provisions of the decision in the case «Stec and others v. the United Kingdom» have been reflected in the context of the broad protection of rights in the field of social security. Attention has been focused on the doctrine of legitimate expectations of property protection in accordance with the guarantees provided by Article 1 of Protocol No. 1 to the Convention in the context of the protection of rights in the field of social security. The decision in the case «Belane Nagy v. Hungary» regarding the definition of legitimate expectations in matters of protection of rights in the field of social security has been analyzed. Relevant conclusions have been drawn regarding the ECHR’s protection of rights in the field of social security, in particular, regarding the broad protection of the corresponding category of rights, as well as the application of the «legitimate expectations» category of property protection in accordance with the guarantees provided for in Article 1 of Protocol No. 1 to the Convention. Key words: European Court of Human Rights, social security, social protection, social rights, protection of rights, pension, social insurance, legitimate expectations.

The Social Value of Leadership: a Contribution from the Leadership Efficacy Model

AbstractLeadership can have a profound and hopefully positive impact on followers, representing a central topic in social and behavioral sciences. However, leadership can also lead to negative consequences in some situations. It is yet unclear how to determine the conditions for a negative versus a positive leadership. In this paper, it is proposed that leadership should assume a social value in order to represent a useful phenomenon for all individuals involved in the leadership process. Specifically, social value is defined as the respect of collective values and ethical standards of the surrounding context, and respect of legitimate expectations and needs of individuals involved in the leadership activity. Thus, it is important to note that, based on this concept of social value, leadership is conceptualized as a process of influence between leaders and followers based on common and positive ideals that will have the potential to produce relevant changes for all involved. This work debates the social value of leadership, according to the leadership efficacy model that proposes that three dimensions are involved in the impact produced by leadership: leadership cycles, leadership styles, and antecedent factors of leadership. Some examples are provided about how the model can reinforce the social value of leadership, along with some preliminary data about the model. This work concludes with a debate about the nine principles of leadership that increase the chances of leaders producing desirable effects in others.

Wrestling with multiple accountabilities in times of crisis: Findings from the experiences of Chinese local governments in responding to COVID‐19

AbstractGovernments around the world, when faced with a crisis, struggle to manage various legitimate accountability expectations. Our study investigated how Chinese local governments reconcile social and hierarchical accountability in managing COVID‐19. We found that local governments are generally more responsive to hierarchical than social accountability. Moreover, senior officials are highly unlikely to shirk their duties toward hierarchical accountability when a crisis is severe. Furthermore, crisis severity increases local governments' responsiveness to social accountability. Our study has encircled our understanding regarding the management of multiple accountabilities in crisis.

Exploring the Approach Against Problem of Legitimate Expectations Under the Fair and Equitable Treatment Standard by Host States

This essay discusses the challenges associated with the definition of legitimate expectations in host-state dispute settlement. The concept of legitimate expectations requires the government to respect citizens' expectations of policy continuity and stability based on legal principles and has become a self-standing doctrine in international investment contracts. However, the lack of clarity in interpretation and diligence on the part of the host nation has resulted in inconsistent outcomes in similar situations, undermining legal certainty. Additionally, the longstanding defense of legitimate expectations has weakened the host country's authority to regulate. The essay provides recommendations, including recognizing the factors that give rise to legitimate expectations, operating in an open and transparent manner, scrutinizing informal representations of governmental intent, and instituting a reasonable response program to avoid liability for necessary government actions.

Стабильность условий предоставления налоговых льгот как принципиальная основа режима инвестиционной деятельности в Российской Федерации

This paper covers aspects of the legal nature of stabilisation with regard to investment tax incentives. The relevance of the research is related both to the current macroeconomic difficulties and the corresponding need to encourage investment activity, and to the latest trends in jurisprudence and lawmaking. This article will examine the effect of the tax “stabilisation clause” in the use of investment tax incentives. The article will substantiate the thesis that stabilisation applies to any investment incentive due to the fact that the invariability of investor support measures follows from the constitutional regulation of the operation of law over time. It will also define the content of a legitimate reasonable expectation, which is ensured through the stability of tax benefits.