Document Type

Book Chapter

Publication Date

Summer 6-2017

Publisher

Cambridge University Press

Place of Publication

England

Journal

20 Years of Domestic Policy Under WTO Law: The Embedded Liberalism Compromise Revisited

Abstract

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.

Notes

A Draft Prepared for “The Embedded Liberalism Compromise Revisited: Twenty Years of Domestic Policy Under WTO Law” Workshop, University of New South Wales Faculty of Law, Sydney, Australia, Feb. 25-26, 2016


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