CYIL vol. 16 (2025)

VOJTĚCH TRAPL The contribution would like to acknowledge several weaknesses in the current arbitral approach to legitimate expectations: The Tecmed standard has been criticized for not being grounded in evidence of state practice or opinio juris , and for potentially exceeding the powers of arbitral tribunals by generating obligations not contained in the treaty. Tribunals have often over relied on a chain of awards referencing each other, rather than a robust legal justification or systematic analysis of the doctrine’s origins or limits. The doctrine of legitimate expectations is not explicitly anchored in most investment treaties, leading to inconsistent application and uncertainty. There is a risk that the doctrine could be used to unduly limit the host state’s right to regulate, especially if based on general regulatory stability rather than specific commitments. Despite these weaknesses, the overall outcome of the contribution is positive. It demonstrates that international arbitration serves as a dynamic forum for the development and clarification of international law principles, such as legitimate expectations. Through arbitral jurisprudence, the doctrine has evolved from a vague concept to a nuanced standard that balances investor protection with state sovereignty. Arbitral tribunals have certainly contributed to the harmonization of standards across different legal systems and have fostered greater predictability and legitimacy in the application of international investment law. By engaging with comparative public law and refining the requirements for legitimate expectations, international arbitration has helped to ensure that the doctrine is applied in a manner that respects both the justified reliance of investors and the regulatory autonomy of states. This ongoing dialogue between arbitral tribunals, domestic courts, and scholarly commentary exemplifies how international arbitration contributes to the progressive development of international law. The contribution to legitimate expectations, while not without its weaknesses, might showcase the positive role of international arbitration in shaping and advancing international law. By providing a forum for the articulation, critique, and refinement of legal standards, arbitration enhances legal certainty, balances competing interests, and promotes the rule of law in cross-border investment relations.

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