Skip to content

The ‘Narrow’ Meaning of the Legitimate Expectations Principle in State Aid Law Versus the Foreign Investor’s Legitimate Expectations

A Hopeless Clash or an Opportunity for Convergence?

Cláudia Saavedra Pinto

The Micula case unveiled the growing tension that presently exists between State aid law and investment treaty law as regards the standards of protection accorded to aid recipients and investors, namely in terms of legitimate expectations. This article explores the substantive stance of the problem. It pursues two chief aims: 1) acknowledge the real extent of the clash; 2) and discuss whether this potential conflict is unavoidable or, on the contrary, there is still room for conciliation. It concludes that despite assuming roughly the same set of requirements, the two legal orders interpret and apply these in entirely different ways, leading to an overly-narrow acceptance of undertaking’s expectations in State aid law and to an overly-broad and unqualified formulation of Fair and Equal Treatment (FET) clause in investment treaty law. In spite of this, the article also seeks to demonstrate that both fields have been gradually introducing elements of flexibility in their original stands and moving closer, in such a way that one may reasonably expect a likely convergence in the investor-beneficiary’s expectations protection in the upcoming years.
Keywords: Investment treaty law; Arbitration; Legitimate Expectations, Diligent Businessmen; Fair and Equitable Treatment; EU Accession; Proportionality; General Principles of EU law; Micula; BITs; TTIP; FTAs.

Dra. Cláudia Saavedra Pinto, London School of Economics and Political Science LL.M., PhD Candidate in Public Law at University of Coimbra, Portugal; Lawyer in Portugal.


Lx-Number Search

(e.g. A | 000123 | 01)

Export Citation