“Cross Treaty Interpretation” en bloc or How CAFTA-DR Tribunals Are Systematically Interpreting the FET Standard Based on NAFTA Case Law

Abstract

This article examines how tribunals set up under the CAFTA-DR have interpreted the fair and equitable treatment (‘FET’) standard under Article 10.5 in the last 15 years. It shows that they have consistently referred to NAFTA case law to define the standard and to interpret the scope and content of the different elements it contains (arbitrary conduct, legitimate expectations, due process). The only exception is regarding denial of justice. This is a fascinating example of “cross treaty interpretation”. I will explain the reasons why CAFTA tribunals have done so and examine whether or not this “cross treaty interpretation” en bloc is legitimate and sound in light of the canons of treaty interpretation.