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Q.3, Fair and equitable treatment

Concerning the question of "legitimate expectations":

The EU's intention "to make it clear that an investor cannot legitimately expect that the general regulatory and legal regime will not change...that the standard is not understood to be a "stabilisation obligation", in other words a guarantee that the legislation of the host state will not change in a way that might negatively affect investors" is entirely in the right direction.

But clear and specific language should recall on this matter that expectations (notwithstanding "clear, specific representations ... made by a Party to the agreement in order to convince the investor to make or maintain the investment and upon which the investor relied") cannot be deemed legitimate in certain cases.

Specifically, sovereign default must always remain outside the jurisdiction of any ISDS system. Likewise, regulation in pursuit of macroeconomic stability, environmental protection, consumer protection, protection of the right to organize and bargain collectively, and a number of other core state functions and core human rights must be categorically exempt from becoming the subject of such disputes.

No government can offer an investor legitimate promises of exemption with regard to these fundamental principles, and therefore no investor should be able to claim legitimate expectations as a consequence of any such promises.  

by afew (afew(a in a circle)eurotrib_dot_com) on Sun Jul 6th, 2014 at 11:06:24 AM EST

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