The Use (and Abuse) of Investment Case Law before the ICJ: the Legitimate Expectations Doctrine

The ICJ has recently rendered its judgment in the case between Bolivia and Chile about the Obligation to Negotiate Access to the Pacific Ocean. The Court rejected all Bolivian claims, which were grounded, inter alia, on the principle of legitimate expectations. However, despite rightly excluding the existence in general international law of a principle “that would give rise to an obligation on the basis of what could be considered a legitimate expectation”, it seems that the Court adopted rather unclear and misleading language with regard to the role that legitimate expectations actually play in international investment law. The present contribution aims at analysing relevant international investment tribunals’ case law to understand how the principle of legitimate expectations is currently applied in that sector. The conclusions present alternatives that the ICJ could have adopted in dealing with such a principle in the broader framework of general international law.