Protection Of Legitimate Expectations Research Articles

Pathological arbitration clauses, good faith and the protection of legitimate expectations

This article examines a recent case decided by the Portuguese courts that dealt with the issue of ‘pathological’ arbitration clauses, the legal mechanisms to construct such clauses, and the relevance of the principle of good faith in arbitration. In this respect, this article endeavours to frame those topics within the context of prior decisions that have been taken by the arbitral tribunal. It also addresses the question of whether the standards of good faith generally applicable to arbitrators are extendable to arbitral institutions when managing arbitration cases. In this context, this article also addresses the significance of institutional arbitration rules that set forth good faith as generally applicable to all participants in arbitration proceedings. Such is the case of the recent London Court of International Arbitration (LCIA) Rules. LCIA (London Court of International Arbitration) Arbitration Rules (2014)Portuguese Arbitration Act (2011) [ Lei no 63/2011 de 14 de Dezembro ]ACL (Arbitration Centre of the Portuguese Chamber of Commerce and Industry-Lisbon) Arbitration Rules (2008)Portuguese Civil Code (1966) [ Decreto-Lei no 47344/66, de 25 de Novembro (Codigo Civil) ]Portuguese Arbitration Act (1986) [ Lei no 31/86, de 29 de Agosto (Arbitragem voluntaria) ] “A” and “B” v “F” – Comercio de Automoveis, S.A. and ors , Case No. 659/13.9YRLSB-2, Lisbon Court of Appeal, Judgment (2013)

Action in time of judicial legal provision

The given study is dedicated to the temporal effect of general judicial legalprovisions. Although some amount of research (provided by T. Anakina, Y.Barabash, B. Malyshev, A. Myroshnychenko, S. Shevchuk, V. Tykhyi, Y. Todyka)has been devoted to this issue, relatively little attention has been attached to it by theUkrainian science.Thus the major task of this research is to provide the further investigation ofaction in time of judicial legal provisions, including the analysis and generalization offoreign experience in this field.This paper focuses on legal provisions that are general rules contained in diversejudicial acts and that are recognized as the law or as the law interpretation andspecification standards (also it focuses on the judicial provisions which invalidate thelegislation rules).Different views on the nature of judicial legal provisions determine to someextent the temporal characteristics of their operation. So when legal provisions areperceived purely as interpretation of law, their temporal scope is often regarded asbeing the same as the scope of the relevant rules of law. The approaches may vary incases where legal provisions are seen as the result of law detailing and law making.The author has scrutinized different approaches, existing in various legalsystems. Traditionally, a precedent is considered to have a retroactive effect incommon law countries. However, it is often given a prospective effect. Besides, aprecedent can combine the both effects in a certain way. The author analyzes2approaches to resolving these issues in the US (where prospectivity is actively used),the UK (where retroactivity is mainly applicable) and other common law systems. Incivil law systems retroactivity of judgments is often limited.This paper describes the grounds for these approaches including some principlesof law like legal certainty (and its component - res judicata) and protection oflegitimate expectations. Temporal effect of judicial acts is the result of searching thefair balance between stability of law and need to adjust it according to the changingsocial conditions. Solving of this dilemma often leads to establishing of differentrestrictions on retroactive effect of legal provisions. It often takes into account theinterests of the initiators of the trial that led to changes in the case law. Judgmentusually has the retroactive effect on them.The author draws parallels in the views on operation of legal provisions thatexist in civil and common law systems. Defending a certain direction of theirtemporal effect is associated with a corresponding view on their nature. Retroactiveand prospective approaches in common law doctrine are respectively associated withthe declaratory and law-making theories of precedent. The continental doctrineimplies such correlation with the views on legal provisions as the results of theinterpretation which only detects initial meaning of legal rules, or as the result of lawdetailingor even law-making activity.

TEISĖTŲ LŪKESČIŲ APSAUGA CONTRA LEGEM

The article considers the concept of legitimate expectations. It is discussed whether unlawful legal acts can create legitimate expectations to the individual who has reasonably relied on these acts. The article sets out the arguments against the recognition of the protection of legitimate expectations contra legem. At the same token it is demonstrated why under exceptional circumstances legitimate expectations based upon unlawful acts shall be protected. The overview of the relevant case-law of national courts leads the author to conclude that the legitimacy of expectation and its protection is not determined by the legitimacy of its source. While deciding the cases concerning the adjustment of the principle of prtection of legitimate expectations with the principle of legality, national courts mostly apply a balancing approach. The balancing approach gives the advantage of allowing the court to evaluate not only the legality of the expectations in question but also other relevant circumstances. This comprehensive evaluation is necessary in order determine whether the public interest really does outweig the harm to the indivdual.

Conditions and Criteria For The Protection of Legitimate Expectations Under International Investment Law: 2012 ICSID Review Student Writing Competition

The protection of legitimate expectations by international investment law is firmly rooted in arbitral practice2 as a self-standing subcategory3 and one of the major components of the fair and equitable treatment standard.4 The rationale behind the protection of legitimate expectations is to encourage foreign investors to make adequate business decisions based on the legal regime of, and representations made by, the host State.5 However, when it comes to legitimate expectations, the international judicial review of governmental conduct6 must be carried out in a balanced and thorough manner, bearing in mind that the undefined nature of bilateral investment treaty (BIT) obligations can be interpreted to create unlimited expectations by investors.7 For that reason, it is necessary to establish the terms and conditions on which investors may invoke the protection of legitimate expectations before international investment tribunals. The aim of this note is to determine...

La protection des attentes légitimes de l'investisseur dans l'arbitrage international

Le contentieux arbitral international relatif aux investissements consacre dans les sentences les plus récentes une place considérable à la protection des attentes légitimes de l’investisseur. La présentation par les arbitres de ces attentes, de leurs relations avec les apparences, les représentations, les croyances légitimes, etc., et pour tout dire le fondement du caractère obligatoire de la protection de celles-ci est très peu développé dans les sentences. Il est plus fait appel à un sentiment ou à un idéal d’équité qu’à une véritable construction juridique. C’est sans doute ce qui rend si particulièrement perméable aux circonstances particulières de chaque espèce le traitement de ces attentes légitimes. C’est à partir d’une trentaine de sentences arbitrales rendues depuis une dizaine d’années que nous présentons ce standard en plein essor et essayons d’analyser son fondement et sa pertinence – parfois discutable – ainsi que les conséquences que cette reconnaissance entraîne pour les investisseurs et pour les États.

Greece: State Liability in Greece for the Revocation of an Illegal Administrative Act and the Principle of Protection of Legitimate Expectations of the Addressee – Council of State Judgment

Greece: State Liability in Greece for the Revocation of an Illegal Administrative Act and the Principle of Protection of Legitimate Expectations of the Addressee – Council of State Judgment

Substantive Protection of Legitimate Expectations in the Promotion of Administrative Justice Act – Tirfu Raiders Rugby Club V SA Rugby Union

Substantive Protection of Legitimate Expectations in the Promotion of Administrative Justice Act – Tirfu Raiders Rugby Club V SA Rugby Union

Coughlan: Substantive Protection of Legitimate Expectations Revisited

Coughlan: Substantive Protection of Legitimate Expectations Revisited

European Administrative Law

This volume analyzes the position of administrative law in the separate but parallel legal order of the EC and explores the limits of its future development. The influence of existing national rules are highlighted as well as the subsequent impact in each member state of the new European system. Part 1 of the text examines the characteristics of the administrative law systems in EC member states, legal constraints on administrative decisions, the principle of equality and the prohibition of discrimination as obligatory maxims of government action. The second section explores the principle of proportionality, legal certainty and the protection of legitimate expectations, and the principles of a constitutionally ordered administrative procedure.

The Provenance and Protection of Legitimate Expectations

The concept of legitimate expectation first stepped onto the English law stage eighteen years ago in Schmidt v. Secretary of State for Home Affairs. There Lord Denning said obiter that an alien who had been given leave to enter the United Kingdom for a limited period had a “legitimate expectation of being allowed to stay for the permitted time” and, hence, if that permission was “revoked before the time limit expires, [the alien] ought to be given an opportunity of making representations [to the Home Secretary]”. Since then “legitimate expectation” has played an important part in numerous decisions in both the United Kingdom and the Commonwealth (particularly Australasia).