Since the entry into force of the North American Free Trade Agreement (NAFTA)
in 1994, several arbitral tribunals have rendered awards dealing with claims
of breach of Article 1105. Some of these awards have been very controversial
and have had a tremendous impact on the development of the concept of fair and
equitable treatment (FET) and the evolution of international investment law.
Yet, in spite of the fundamental importance of these awards, no comprehensive
study had been undertaken to determine the meaning and the content of the FET
standard under NAFTA Article 1105.
This book’s systematic analysis of the provision and its case law fills this
analytical gap. Because Article 1105 is in many ways different from typical
FET clauses contained within most investment treaties, the author examines the
particular parameters under which it must be interpreted. He also analyzes how
these specific features have influenced NAFTA tribunals’ interpretation of the
provision, and how their assessments differ from awards rendered by other
tribunals outside NAFTA. Among the issues treated in the course of the
analysis are the following:
the origin, development, nature and content of the concept of the ‘minimum
standard of treatment’ and its interaction with the FET standard;
the specific parameters under which Article 1105 must be interpreted,
including contextual elements such as subsequent agreement and practice
between the NAFTA Parties on matters of interpretation;
the context in which the Free Trade Commission issued its Note of
Interpretation in 2001 and how NAFTA tribunals have applied it;
whether or not the concepts of legitimate expectations, transparency,
arbitrary conduct, discriminatory conduct, good faith, denial of justice, and
due process have been considered by NAFTA tribunals as specific elements of
protection to be accorded to investors under Article 1105;
the many facets of these elements and the threshold of severity that NAFTA
tribunals have required for finding a breach of Article 1105;
the interaction between Article 1105 and other NAFTA provisions on national
treatment, Most-Favored-Nation treatment, and expropriation; and
how NAFTA tribunals have assessed damages for breach of Article 1105.
This comprehensive guide to NAFTA case law on Article 1105 is an important
contribution to the on-going controversial debate about the scope and content
of the FET standard under international law. It will be of great interest to
counsel for investors and States as well as to arbitrators, academics and
anyone interested in investor-State arbitration.
List of Abbreviations. Foreword. Preface. Acknowledgments. Introduction.
Part I. The Framework of Article 1105. 1. The Emergence of the
Concepts of the Minimum Standard of Treatment and the Fair and Equitable
Treatment. 2. The Meaning of Article 1105. Part II. The Content of
Article 1105. 3. The Substantive Content of Article 1105. 4.
The Relationship between Article 1105 and Other NAFTA Provisions. 5.
Assessment of Damages. Conclusion: Summary of Findings. Bibliography. Table of
Cases. Table of Treaties and Conventions.Index.