NAFTA’s FET Clause Is (Practically) Dead! Long Live Its Legacy!: An Empirical Survey of How Tribunals Have Interpreted FET Clauses Linked to the Minimum Standard of Treatment

The article examines how awards, outside NAFTA and CAFTA, have assessed fair and equitable treatment (FET) clauses where the standard of protection is expressly linked to the Minimum Standard of Treatment (MST). It shows that in the last ten years, tribunals have generally adopted a restrictive approach which is in line with NAFTA case law. They have defined the content of the standard similarly to NAFTA tribunals and have also referred to a high threshold of severity or seriousness to find a breach. The article argues that while the FET clause in the CUSMA (replacing NAFTA) will be of limited practical relevance in the North American context, what matters is that the legacy of NAFTA case law on the FET is likely going to be felt for decades to come.