Great Expectations: the Treatment of Expectations in WTO and International Investment Law

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, 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