Cross-cutting substantive aspects

Abstract

Abstract This entry examines cross-cutting substantive matters using the North American Free Trade Agreement (NAFTA) example. It discusses the interpretation of substantive treatment standards by the International Court of Justice (ICJ), NAFTA Chapter Eleven tribunals and other international courts and tribunals, notably the Iran-United States Claims Tribunal (IUSCT). By comparing such decisions, it concludes that alignment is found more often in the interpretation of expropriation and the minimum standard of treatment (MST)/fair and equitable treatment (FET), whereas decisions on national treatment and most-favoured-nation (MFN) diverge. Five reasons may have contributed to these misalignments: (1) the focus and scope of the subject matter of disputes, (2) the treaty texts and textual ambiguity of IIAs, (3) the institutional structure of NAFTA, (4) the fact-specific nature of the inquiry to find a violation of substantive standards of treatment, and (5) the evolution of jurisprudence and State practices. Nevertheless, NAFTA tribunals have made the ICJ jurisprudence relevant for ISDS.