Discretionary acts and legitimate expectation: concepts central to a new approach

Two principal concepts have come to dominate the legal approach to the review of administrative acts by the judiciary. A long-standing tradition has established the discretionary nature of acts of the administration, which generally meant that such acts were not subject to judicial review. However, this very concept was qualified in a number of ways, particularly when some form of abuse of power or procedural irregularity tainted the act. The second and more recent concept has been that of legitimate expectation, dealing in part with procedural matters but also with substantive expectations. Both concepts, while originating in domestic decisions, have come to an important degree of global application, mainly by means of the work of international administrative tribunals and in some specialized matters by tribunals established under the ICSID Convention. This contribution will examine the main evolution of these jurisprudential developments and how they offer new perspectives on the approaches taken by domestic and international tribunals in handling the issue of individual rights in the context of the administrative acts of the state.

Regulatory power and its limits

In order to better understand the issues underlying this evolution, it is necessary first to identify which are the main legal interests that need to be taken into account and protected to the extent appropriate by the law.

The first such interest is the right of the state to adopt regulatory measures in implementation of legislation and other expressions of sovereignty.