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

Protection of an investor?s legitimate expectations is widely invoked before the international arbitration tribunals established to settle investments disputes. Based on the study of more than thirty recent arbitral awards, mostly rendered by ICSID tribunals (International Center for the Settlement of Investment Disputes) we present an analysis of how this standard may be understood. Not all expectations of investors are legitimate, and some may not be protected by international investment law, since the notion of risk characterizes most investment operations. In light of the recent awards mentioned, the standard specifically imposes the obligation not to act arbitrarily, in a manner that is grossly unfair and unjust, or that will be harmful to the investor. This international standard also requires transparency, particularly in administrative proceedings, as well as compliance with the representations made and reasonably relied upon by the investor. Acts committed in bad faith need to be sanctioned. The consequences of the standard are well known today. However, although this notion is one of the most pervasive in recent arbitral practice, Members of arbitral tribunals almost never explain its origin. It is quite surprising to see that still today it is quite uncommon for tribunals to set forth the grounds for why this quickly developing, mandatory standard has to be respected by host States. Arbitrators agree on that the principle of fair and equitable treatment may constitute the basis of the standard, but although it is generally accepted its contours are far from being precise. In some instances, reference to the standard of protection of legitimate expectations of foreign investors seems to be irrelevant. This is the case in particular, when arbitrators consider that the host State violated the standard of protection of legitimate expectations by way of breach of a contract to which the investor is a party. However, the obligation to respect the terms of the contract ought to be self-sufficient. While references to the protection of legitimate expectations are questionable under such circumstances, it is all the more necessary to specify standard carefully in cases, where there is no promise or commitment of the State in favor of the investor.