R. Daujotas, ‘The Concept of Legitimate Expectation in Investor-State Arbitration and the European Court of Human Rights’ Вестник Международного Коммерческого Арбитража (Russian Bulletin of the International Commercial Arbitration) No 2 (6) 2012
As compared with case-law of the investor-state arbitration, the jurisprudence of the European Court of Human Rights (ECHR) evolved long before the emergence of foreign investment disputes. Thus, practice of the ECHR is far more developed, with concepts reaching almost every aspect of human life, including the conduct of business and protection of proprietary rights. Taking into account the authoritative nature of decisions of the ECHR, the latter could become an additional instrument in the argumentation toolkit for both, the investors and the host states. As it can be observed from the emergence of scholarly discussions on the topic, principles of the ECHR could be applied in future investment disputes. Therefore, it is inevitable that concepts already evolved in the investor-state arbitrations would need to be compared and assessed through the prism of concepts established in the context of human rights. Since the main concern of the investor-state arbitration is related mainly with property rights, Article 1 of Protocol No. 1 of the European Convention on Human Rights (A1P1) and concepts evolved in regard of the latter could become of great importance in investment disputes. This article aims to compare a very narrow aspect which is found in both, case-law of the investor-state arbitration and in the practice of the ECHR – protection of legitimate expectation in the context of proprietary rights. Subsequently, the question which will be analyzed therein is whether there is a substantial difference between the concept of protection of legitimate expectation in the investor-state disputes and the ECHR, and could the latter supplement the principles established in foreign investment disputes.
II. Legitimate Expectation in Investor-State Arbitration
The principle of protection of legitimate expectation was invoked in a great number of investment arbitrations and case-law that evolved over the years provides for clearly defined features. Firstly, it must be noted that the concept of legitimate expectation is regarded as one of the most important parts of the fair and equitable treatment standard (FET), as it was stated by the Saluka tribunal:
“The standard of “fair and equitable treatment” is therefore closely tied to the notion of legitimate expectations which is the dominant element of that standard …” 
Although some authors argue that protection of investor’s legitimate expectation is a rather a controversial principle of the FET standard, others provide for the autonomy of the concept, as it is argued by scholars – the idea is justified by the fact that in the context of the indirect expropriation the concept operates with different set of qualities and requirements in the context of the FET, which shows that it has enough resources to adapt to diverse situations.
However, while arguing the breach of legitimate expectation, the main rationale and emphasis is drawn on the investor’s basic expectation, according to which the host state would act in a consistent manner throughout the investment. One of the most authoritative definition of the latter was brought by the Tecmed Tribunal which was followed by numerous subsequent Awards:
“The Arbitral Tribunal considers that this provision of the Agreement, in light of the good faith principle established by international law, requires the Contracting Parties to provide to international investments treatment that does not affect the basic expectations that were taken into account by the foreign investor to make the investment. The foreign investor expects the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, so that it may know beforehand any and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations.
It follows from the above that the investor should prove that the host state had not followed its promises it made at the time the investor decided to pursue its investment. Such ‘promises’ could take various forms, such as, permits, licenses and, most importantly, the law and policy framework. Thus, the investors would need to show that they had a legitimate expectation that such rights and state representations will be protected. It should be noted also that is was established by the Tecmed Tribunal that there is no obligation for the investor to prove that such a breach of legitimate expectation caused the investor any damage.
As for other features of the concept, an example can be brought by the Metalclad Tribunal which dealt with a construction permit for a landfill and found that the Town Council denied the permit for reasons which included, but may not have been limited to, the opposition of the local population. The investor argued that it was led to believe, and did believe, that the federal and state permits allowed for the construction and operation of the landfill. Thus, the Tribunal stated that the investor was entitled to rely on the representations of federal officials and to believe that it was entitled to continue its construction while following the advice of these officials, and filing the municipal permit application the investor was merely acting prudently and in the full expectation that the permit would be granted. The Tribunal argued that the host state failed to ensure a transparent and predictable framework for investor’s business planning and investment. The totality of these circumstances demonstrated a lack of orderly process and timely disposition in relation to an investor of a Party acting in the expectation that it would be treated fairly and justly. Therefore, it can be observed that simple representations of the federal government could act as a basis for the investor to argue that the host state broke its promise.
Another, example can be illustrated by the Eureko v Poland Tribunal which found that the host state broke its promise to the investor when the state refused to sell shares to the investor as it had previously agreed. The Tribunal held that the state breached the basic expectation of the investor which was the basis of its investment. However, it should be noted that investment Tribunals had emphasized that the breach of FET standard should not be confused with obligations arising under commercial contracts concluded by the state and the investor. For example, the Waste Management Tribunal found that a failure to make payments under the concession agreement did not support the conclusion that the host state acted arbitrarily – ‘non-payment of debts by a municipality is not to be equated with violation … provided that it does not amount to an outright and unjustified repudiation of the transaction and provided some remedy is open to the creditor to address the problem’.
In CME v Czech Republic, the Tribunal found that ‘the Media Council breached its obligation of fair and equitable treatment by evisceration of the arrangements in reliance upon which the foreign investor was induced to invest’. The Tribunal stated that since CME had a legitimate expectation of reliance on the investment structure that had been arranged by the Media Council and that the Media Council should not have acted, without a bona fide purpose, to undermine the investor’s business.
Although the Tribunal in MTD v Chile argued that the investor has a duty to inform itself of the country’s law and policy, it also stated that the host state is obliged to act coherently and apply its policies consistently and independently.
Other examples can be bought by decisions established in investor-state disputes which evolved as a consequence of Argentine’s financial crisis and which were also faced with the concept of protection of legitimate expectation due to changes in governmental policy. The Tribunal in Sempra v Argentine held:
“The measures in question in this case have beyond any doubt substantially changed the legal and business framework under which the investment was decided and implemented. Where there was business certainty and stability, there is now the opposite. The tariff regime speaks for itself in this respect. A long-term business outlook has been transformed into a day-to-day discussion about what is next to come. The guarantees given are no longer available. The Respondent might be right in distinguishing this case from the situations that recent decisions had in view, but this does not mean that the present conditions are consistent with the meaning of the protection granted under the Treaty.”
Similar approach was taken by the Enron v Argentine Tribunal where it was stated that the investor had a legitimate expectation that the dollar-peso conversion law would not change, thus the investor was entitled to damages.
Therefore, as it can be observed from the above, the concept of protection of legitimate expectation would be usually assessed on a case-by-case basis and principles established in the context thereof could rarely be applied universally. However, it should be noted that scholars and practitioners agree that one of the key features which should be taken into account while assessing the violation of the protection of legitimate expectation is that protected expectations must rest on the conditions as they exist at the time of the investment.
For example, the Tribunal in Duke Energy v Ecuador emphasized the importance of conditions offered by the host state when making an investment:
“The stability of the legal and business environment is directly linked to the investor’s justified expectations. The Tribunal acknowledges that such expectations are an important element of fair and equitable treatment. At the same time, it is mindful of their limitations. To be protected, the investor’s expectations must be legitimate and reasonable at the time when the investor makes the investment … such expectations must arise from the conditions that the State offered the investor and the latter must have relied upon them when deciding to invest”
Consequently, from all of the examples above, some of the main features of the concept of legitimate expectations in investment arbitration can be drawn – 1) the concept of protection of legitimate expectation is a key part of the FET standard, 2) legitimate expectations could have various forms, including the policy of the government, 3) there is no obligation to prove damage sustained, 4) conditions offered by the host state at the time of investment are of essence.
III. Legitimate expectation in the European Court of Human Rights
The standard of legitimate expectation in the jurisprudence of the ECHR was also analyzed thoroughly. A1P1 provides that ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions’.
Although the notion of investment in investor-state arbitration is supposed to have certain features to be protected under the bilateral investment treaty, the notion of property in the ECHR is defined in rather broad terms. However, the ECHR would also analyze thoroughly whether there was a breach of applicant’s legitimate expectations.
As it was explained by the ECHR in Maltzan and Others v. Germany:
“An applicant can allege a violation of Article 1 of Protocol No. 1 only in so far as the impugned decisions related to his “possessions” within the meaning of this provision. “Possessions” can be either “existing possessions” or assets, including claims, in respect of which the applicant can argue that he or she has at least a “legitimate expectation” of obtaining effective enjoyment of a property right. By way of contrast, the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of Article 1 of Protocol No. 1, nor can a conditional claim which lapses as a result of the non-fulfillment of the condition.”
It could be argued that above description of legitimate expectation provided by the ECHR is defined in rather broad terms. However, it must be noted that practice of the Court on the matter had provided for a far more accurate approach.
First of all, as it is provided above, the ECHR makes an emphasis that merely a hope of recognition of a property right cannot be considered a “possession” within the meaning of A1P1. Similar approach was also taken towards the legitimate expectation. For example, in the Gratzinger and Gratzingerova v. the Czech Republic case, the legislation excluded the possibility of restitution of property to those claimants who were not Czech nationals. The Court held that applicants had no legitimate expectation that their claim would be determined in their favor. Subsequently, the ECHR stated that the belief that a law previously in force would be changed to an applicants’ advantage cannot be regarded as a form of legitimate expectation for the purposes of A1P1.
The latter decision illustrates that there is no legitimate expectation to a future loss of earnings, since A1P1 only applies to existing possessions which would include income once it has been earned or where an enforceable claim to it exists. Similarly, it was stated in Malhous v. the Czech Republic that the hope of recognition of a property right which it has been impossible to exercise effectively cannot be considered a “possession” within the meaning of A1P1, nor can a conditional claim which lapses as a result of the non-fulfillment of the condition.
However, in certain circumstances, the retrospective application of legislation whose effect is to deprive someone of a pre-existing “asset” that was part of his or her “possessions” may constitute interference that is liable to upset the fair balance that has to be maintained between the demands of the general interest on the one hand and the protection of the right to peaceful enjoyment of possessions on the other.
It can be observed that these standards are not totally different from the ones established in the practice of investor-state arbitration. However, it could be argued that faced with similar situation, the arbitral tribunal in Eureko v Poland could have found that a legitimate expectation also applies to not yet existent or pre-existent possessions.
Another comparison of the practice of the investor-state arbitration and the jurisprudence of the ECHR can be brought by the Kopecký v. Slovakia judgment. The ECHR held that the Court’s case-law does not contemplate the existence of a “genuine dispute” or an “arguable claim” as a criterion for determining whether there is a “legitimate expectation” protected by A1P1. Similar conclusion was brought in Anheuser-Busc v. Portugal where the Court held that no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts. However, it should be noted that there were cases where the ECHR also stated that it was primarily for the national authorities, notably the courts, to resolve problems of the interpretation of domestic legislation.
As for comparison, the Tribunal in Metalclad seems to have taken a different approach when it found that investor’s legitimate expectations were breached because of the lack of clear application of domestic law:
“Metalclad asserted that federal officials told it that if it submitted an application for a municipal construction permit, the Municipality would have no legal basis for denying the permit and that it would be issued as a matter of course. The absence of a clear rule as to the requirement or not of a municipal construction permit, as well as the absence of any established practice or procedure as to the manner of handling applications for a municipal construction permit, amounts to a failure on the part of Mexico to ensure the transparency required by NAFTA”
Therefore, it could be argued that in certain cases the standard of legitimate expectation, as found in the case-law of the investor-state arbitration, takes a different and a more favorable approach to the investor, as compared with practice of the ECHR.
The ECHR also referred to the concept of legitimate expectation in Stretch v. the United Kingdom. The case concerned a lease contract where the applicant had leased land from a local authority for a period of 22 years on payment of an annual ground rent with an option to renew the lease for a further period at the expiry of the term and, in accordance with the terms of lease, had erected at his own expense a number of buildings for light industrial use which he had sub-let for rent. The applicant complained, under A1P1, that he had been denied the option for a further term of twenty-one years under a lease on the ground that the option granted by the local authority had been ultra vires. Subsequently, the ECHR found that the applicant had to be regarded as having at least a “legitimate expectation” of exercising the option to renew the lease.
As it was provided above, investment tribunals, when faced with questions regarding breach of obligations arising from contracts, would take a very cautious approach, including the analysis of the question of the violation of legitimate expectation. For example, the Saluka Tribunal took a straight approach:
“the Treaty cannot be interpreted so as to penalise each and every breach by the Government of the Rules or regulations to which it is subject and for which the investor may normally seek redress before the courts of the host State.”
It was also observed that there is no requirement to prove any damage actually sustained when alleging the violation of legitimate expectation in investor-state arbitration. Similar approach was also taken by the ECHR where in Pressos Compania and Others v. Belgium case the Court stated that the legitimate expectation did not in itself constitute a proprietary interest; rather, it related to the way in which the claim qualifying as an ‘asset’ would be treated under domestic law, thus, the established case law of the national courts would continue to be applied in respect to damage that had already occurred.
Finally, main features of the standard of protection of legitimate expectation in practice of the ECHR could also be identified: 1) legitimate expectation must be assignable to the right of enjoyment of possessions, 2) merely a belief would not constitute a legitimate expectation, 3) legitimate expectation could only be claimed after the enactment of the ECHR, 4) there is no legitimate expectation to future loss of earnings, 5) there is no requirement to prove the loss actually sustained.
In conclusion, it can be observed that the notion of protection of legitimate expectation was vastly analyzed by both, the investment tribunals and the ECHR. However, features and principles established by both of these neighboring dispute resolution forums have their own differences and similarities.
The differences are mainly caused due to a different aim and purpose of these forums. Although the ratione materiae of these forums does not differ substantially, the ratione personae requirement is totally distinct and that could be the main reason of the differences observed. Notwithstanding the latter fact, it was also observed that there are also plenty of similarities in the argumentation of the notion of legitimate expectations by both of these forums. Whether there is a possibility of interconnection of the principles established – a question which requires a separate and deeper analysis. However, it could be argued that both, the practice of investor-state arbitration and case-law of the ECHR could interconnect only on certain issues and on a very limited basis due to a very distant nature of the disputes involved. Therefore, the only interconnection, if possible, in the context of notion of legitimate expectation could be exercised under interpretative-theoretical basis.
As for the supplementary nature of the case-law of the ECHR to investment arbitration in the context of legitimate expectation, it could be argued that it was observed that practice of the ECHR is of specific nature and is not drawn on broad terms as one would expect. Therefore, in certain cases, the case-law of the ECHR could be even more advantageous for the host state rather than the investor which has the primary purpose to prove the breach of its legitimate expectation.
 “While and the scope and legal basis of the principle varies, it has been recognized lately both in civil law and in common law jurisdictions within well-defined limits.” (Total S.A. v. Argentine Republic, ICSID Case No. ARB/04/1, Award of 27 December 2010);
 The Tribunal in Rumeli Telekom v Kazakhstan indicated that the state must respect investor’s reasonable and legitimate expectations and established main features assignable to the FET standard – (1) the state must act in a transparent manner, (2) the state is obliged to act in good faith, (3) the state’s conduct cannot be arbitrary, grossly unfair, unjust, idiosyncratic, discriminatory, or lacking in due process, (4) the state must respect procedural propriety and due process. (Rumeli Telekom A.S. and Telsim Mobil Telekomunikasyon Hizmetleri A.S. v, Kazakhstan, ICSID Case No. ARB/05/16);
 Saluka Investments BV v The Czech Republic, Partial Award, 17 March 2006;
 ‘Fair and Equitable Treatment’ in International Investment Law, Roland Klàger, Cambridge University Press, 2011, p. 164;
 The controversy of the principle of legitimate expectation was also observed by the El Paso Tribunal: “There is not always a clear distinction between indirect expropriation and violation of legitimate expectations (…) According to this Tribunal, the violation of a legitimate expectation should rather be protected by the fair and equitable treatment standard.” (El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award of 31 October 2011);
 The Fair and Equitable Treatment Standard in International Foreign Investment Law (Oxford Monographs in International Law), Ioana Tudor, 2008;
 See Plama Consortium Ltd. v. Bulgaria, Award (27 August 2008), para. 176; Siemens A.G. v. Argentine Republic,Award, ICSID Case No. ARB/02/8 (6 February 2007), para. 299; MTD Equity Sdn. Bhd. & MTD Chile S.A. v. Chile, Award (25 May 2004), paras. 114-115; Azurix Corp. v. Argentine Republic, Award (14 July 2006), paras. 371-73; Occidental Petroleum Corp. v. Republic of Ecuador, Award (1 July 2004), para. 185; Duke Energy Electroquil Partners et alv. Republic of Ecuador, Award, ICSID Case No. ARB/04/19 (18 August 2008), para. 340; Saluka Investments BV (The Netherlands) v. Czech Republic, Partial Award, Ad hoc — UNCITRAL (17 March 2006), para. 302; LG&E Energy Corp. v. Argentine Republic, Decision on Liability, ICSID Case No. 02/1 (3 October 2006), para. 127; CMS Gas Transmission Co. v. Argentine Republic, Award (12 May 2005), para. 279; Enron Corp. Ponderosa Assets L.P. v. Argentine Republic, Award, ICSID Case No. ARB/01/3 (22 May 2007), para. 262; Sempra Energy Int I v. Argentine Republic, Decision on Jurisdiction, ICSID Case No. ARB/02/16 (11 May 2005), para. 298; see also Suez and Others v. Argentine Republic, Decision on Liability, ICSID Case No. ARB/03/19 (30 July 2010), para. 205.;
 Tecnicas Medioambientales Tecmed SA v. United Mexican States, Award (29 May 2003);
 It was stated in LG&E v. Argentina that investor’s fair expectations have specific characteristics: they are based on the conditions offered by the host State at the time of the investment. (LG&E Energy Corp., LG&E Capital Corp. and LG&E International Inc.v. Argentine Republic, Decision on Liability);
 “The key elements in the standard of fair and equitable treatment are the legitimate expectations of the investor regarding the regulatory framework and whether due process has been followed” in Sustainable Development in World Investment Law, Marie-Claire Cordonier Segger, Markus W. Gehring, Andrew Paul Newcombe, Kluwer Law International, 2011 , p. 273, see also International Investment Arbitration: Substantive Principles, Campbell McLachlan, Laurence Shore, Matthew Weiniger, Oxford University Press, Sep 15, 2008, at 226, 233-234;
 Law and Practice of Investment Treaties: Standards of Treatment, Andrew Paul Newcombe, Lluís Paradell, Kluwer Law International, 2009, p. 283;
 “the Arbitral Tribunal will not necessarily take into account the actions or determinations of the Mexican authorities that, echoing the community sentiment, in turn exerted pressure on Cytrar for it to relocate or that are part of the Respondent’s actions considered to be in violation of the Agreement in this award or that contributed to the damage resulting from such violations, and that may have an adverse effect on valuation of the compensation”;
 Metalclad Corporation v. The United Mexican States. (ICSID Case No. ARB(AB)/97/1;
 As for an alternative example, see PSEG v. Turkey where it was found that merely the statement of the State that it needed foreign investment in the country could not serve as a basis for legitimate expectation, because such statement’s by the host state could be regarded just as its general policy” (PSEG v. Turkey, ICSID, Award (Jan. 19,. 2007), similarly, in Thunderbird Gaming Corp. v. United Mexican States, UNCITRAL, Arbitral Award. (Jan. 26, 2006) – the Tribunal stated that false representation that have been made by the investor could not be used for the basis of ‘expectation’;
 Eureko B.V. v. Republic of Poland, Ad Hoc Investment Treaty Case, Partial Award on Liability, 19 August 2005;
 Waste Management, Inc. v. United Mexican States. ICSID Case No ARB(AF);
 It was clearly stated by the Maffezini v Spain Tribunal that “Bilateral Investment Treaties are not insurance policies against bad business judgments. While it is probably true that there were shortcomings in the policies and practices… they cannot be deemed to relieve investors of the business risks inherent in any investment. To that extent, it is clear that Spain cannot be held responsible for the losses Mr. Maffezini may have sustained any more than would any private entity under similar circumstances.” (Emilio Agustin Maffezini v. Kingdom of Spain (ICSID Case No. ARB/97/7). However, it should be noted that the Tribunal in Mondev v United States of America mentioned that a governmental prerogative to violate investment contracts would appear to be inconsistent with contemporary standards of national and international law concerning governmental liability for contractual performance. (Mondev International Ltd. v. United States of America, Case No. ARB(AF)/99/2 (October 11, 2002));
 CME Czech Republic BV v Czech Republic, Award 14 March 2003;
 MTD Equity Sdn Bhd and MTD Chile SA v. Chile, ICSID Case No ARB/01/7 (Award dated 25 May 2004);
 It should be noted that state’s violation of its own legal order would be regarded as evidence that the state disregarded its FET obligations, see Elettronica Sicula S.p.A. (ELSI) v. United States (U.S. v. It.), 1989 ICJ Rep. 12 (20 July). Similar conclusion had be drawn from the drafting history of article 27 of the Vienna Convention – the amendment proposed by Pakistan initially claimed “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith, and no party may invoke the provisions of its constitution or its laws as an excuse for its failure to perform this duty” (Vienna Conference, Documents, p. 145, (Vienna Conference, First Session, p. 158));
 Sempra Energy International v. Argentine Republic (ICSID Case No. ARB/02/16), Award of the Tribunal (September 28, 2007);
 However, it the El Paso Tribunal stated that the loss of value is never the predominant cause of finding of indirect expropriation as it is always a result of loss of use of investment by the investor (El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award of 31 October 2011);
 Similar conclusion had be drawn from the statement provided by SOABI v Senegal Tribunal – “In other words, the interpretation must take into account the consequences which the parties must reasonably and legitimately be considered to have envisaged as flowing from their undertakings. It is this principle of interpretation, rather than one of a priori strict, or, for that matter, broad and liberal construction, that the Tribunal has chosen to apply.” (SOABI v. Senegal, ICSID Case No. ARB/82/1, Award, 25 February 1988);
 “At What Time Must Legitimate Expectations Exist?” by Christoph Schreuer & Ursula Kriebaum, in J Werner and AH Ali (eds) A Liber Amicorum: Thomas Wälde Law Beyond Conventional Thought (Cameron May, 2010);
 Duke Energy Electroquil Partners & Electroquil S.A. v. Republic of Ecuador, ICSID Case No. ARB/04/19;
 Similar conclusion was established in Holiday Inns v Morocco – “It is well known, and it is being particularly shown in the present case, that investment is accomplished by a number of juridical acts of all sorts. It would not be consonant either with economic reality or with the intention of the parties to consider each of these acts in complete isolation from the others. It is particularly important to ascertain which is the act which is the basis of the investment and which entails as measures of execution the other acts which have been concluded in order to carry it out” (Holiday Inns S.A. and othersv. Morocco (ICSID Case No. ARB/72/1);
 The Tribunal in Continental Casualty also established main features which must be assessed while analyzing the breach of legitimate expectations – (1) the specificity of the undertaking allegedly relied upon; (2) general legislative statements engender reduced expectations. Their enactment is by nature subject to subsequent modification, and possibly to withdrawal and cancellation, within the limits of respect of fundamental human rights and ius cogens; (3) unilateral modification of contractual undertakings by governments, in the light of the context, reasons, effects, since they generate as a rule legal rights and therefore expectations of compliance; (4) centrality to the protected investment and impact of the changes on the operation of the foreign owned business in general including its profitability; (Continental Casualty Company v. Argentina, ICSID Case No. ARB/03/9), cited in ‘Latest Developments in Investor– State Dispute Settlement’
IIA Monitor No. 1 (2009) International Investment Agreements, UNCTAD/WEB/DIAE/IA/2009/6/Rev1;
 It was first established in Pine Valley Developments v. Ireland that possessions can also include assets in respect of which the applicant has at least a ‘legitimate expectation’ of obtaining effective enjoyment (Pine Valley Development Ltd and others v. Ireland, Application No. 12742/87, Decision of admissibility of 3 May 1989);
 The latter judgment also noted that ‘once a Contracting State, having ratified the Convention including Protocol No. 1, enacts legislation providing for the full or partial restoration of property confiscated under a previous regime, such legislation may be regarded as generating a new property right protected by Article 1 of Protocol No. 1 for persons satisfying the requirements for entitlement. The same may apply in respect of arrangements for restitution or compensation established under pre-ratification legislation, if such legislation remained in force after the Contracting State’s ratification of Protocol No. 1’ (Von Maltzan and Others v. Germany (dec.) [GC], nos. 71916/01, 71917/01 and 10260/02, § 74 (c), ECHR 2005-V);
 See also Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, 82 and 83, ECHR 2001-VIII;
 “Article 1 of Protocol No. 1 applies only to a person’s existing possessions” Marckx v. Belgium, judgment of 13 June 1979; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, 64, 11 January 2007). It does not guarantee the right to acquire property (Slivenko and Others v. Latvia [GC], no. 48321/99, 121, ECHR 2002-II; Kopecký v. Slovakia [GC], no. 44912/98, 35(b), ECHR 2004-IX);
 Similar conclusion was brought in Van Marle and Others v. the Netherlands, judgment of 26 June 1986, see also Maltzan and Others v. Germany [GC], nos. 71916/01, 71917/01 and 10260/02, 112, ECHR 2005-V;
 Malhous v. Czech Republic (App no 33071/96). ECHR (GC) 2000-XII (Decision on Admissibility);
 Maurice v. France [GC], no. 11810/03, 90 and 93, ECHR 2005-IX). This also applies to cases in which the dispute is between private individuals and the State is not itself a party to the proceedings (Lecarpentier and Another v. France, no. 67847/01, 48, 51 and 52, 14 February 2006; see also, Cabourdin v. France, no. 60796/00, 28-30, 11 April 2006);
 Eureko tribunal found that the host state breached legitimate expectations of the investor to acquire shares. Thus it would mean that investor’s hope to buy such shares, which yet were not in possession of the investor, was regarded as legitimate expectation. However, it should be noted that the ECHR stated in Kopecký v. Slovakia ([GC], no. 44912/98, 35(c), ECHR 2004-IX) that there is a difference between a mere hope of restitution, however understandable that hope may be, and a legitimate expectation, which must be of a nature more concrete than a mere hope and be based on a legal provision or a legal act such as a judicial decision;
 Kopecký v. Slovakia [GC], no. 44912/98, 52, ECHR 2004-IX;
 However, the ECHR had stated that “while the Court is not formally bound to follow any of its previous judgments, it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases” (Stafford v. United Kingdom, Judgement, 28 May 2002, para. 68);
 Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 65, 11 January 2007, see also Jantner v. Slovakia, no. 39050/97, § 34, 4 March 2003;
 As for comparison, in Brumărescu v. Romania judgment, the Court found a violation of Article 1 of Protocol No. 1 since the Supreme Court quashed the Higher Court’s judgment granting the applicant’s request which had become final and was enforced. (Brumărescu v. Romania [GC], no. 28342/95,);
 Fedorenko v. Ukraine, 1 June 2006 (No. 25921/02);
 Stretch v. the United Kingdom, no. 44277/98, 35, 24 June 2003;
 Saluka, para 442;
 Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995;
 Substantive Law in Investment Treaty Arbitration: The Unsettled Relationship Between International Law and Municipal Law, Monique Sasson, Kluwer Law International, 2010, p. 93;