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5 - Recalibrating the Embedded Liberalism Compromise

“Legitimate Expectations” and International Economic Law

from Part I - The Concept of the Embedded Liberalism Compromise

Published online by Cambridge University Press:  21 September 2018

Gillian Moon
Affiliation:
University of New South Wales, Sydney
Lisa Toohey
Affiliation:
University of Newcastle, New South Wales
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Summary

A continuing issue in many areas of law is the treatment of 'reasonable' or 'legitimate' expectations. This contribution posits that a doctrine of expectations is vital to both the law’s stability and flexibility, functioning as a kind of ‘shock absorber’ that accommodates divergent pressures within a legal system. Expectations may arise subjectively, but what the law protects in most instances is determined objectively. This contribution goes on to examine the treatment of expectations in WTO and international investment law. Their treatment in WTO law has been to read them out as a matter of pleading in WTO dispute settlement, apart from the rare instance of non-violation. Their treatment in international investment law, where they are prominent in the assessment of expropriation and standards of treatment, continues to be controversial. Still, expectations are unlikely to be completely effaced as a source of norms. They remain a constitutive element of any legal system. This contribution also examines the consequences of a doctrine of expectations for the revival of embedded liberalism, suggesting that any effort to do so will have to grapple with expectations as a pervasive feature of normativity under conditions of stasis and change. The effort to 'embed' market forces into a framework where they might be regulated by national governments runs up against the objectively determined expectations of individual economic operators. In this dilemma individual and communal expectations will have to be reconciled. There are indications that the reconciliation is already happening in ways reminiscent of domestic administrative law.

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The Future of International Economic Integration
The Embedded Liberalism Compromise Revisited
, pp. 58 - 78
Publisher: Cambridge University Press
Print publication year: 2018

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