The Prohibition against Arbitrary Conduct and the Fair and Equitable Treatment Standard under NAFTA Article 1105
Bibliographic record
Abstract
This article examines how NAFTA tribunals have interpreted and applied the prohibition against arbitrary conduct in the context of claims of breach of the fair and equitable treatment standard under Article 1105. Tribunals have come to the conclusion that this prohibition is a stand-alone element under this provision and that it should also be considered as part of the minimum standard of treatment under custom. This position is no longer denied by NAFTA Parties. NAFTA tribunals have also consistently applied a high threshold of severity requiring that conduct be manifestly arbitrary to conclude that the host State has breached Article 1105. Based on this high threshold, NAFTA tribunals have held that a State conduct in violation of its own municipal law (or a contract) does not breach Article 1105. Thus, “something more” than simple illegality is required to constitute a violation of this provision. This article explains what that “something more” is.
Fetched live from OpenAlex and de-inverted. Abstracts are not stored in this database: the inverted indexes are 8.6 GB of the frame’s 9.3 GB of text, and the host has 13 GB free.
How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.018 | 0.026 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.007 | 0.015 |
| Scholarly communication | 0.009 | 0.004 |
| Open science | 0.002 | 0.004 |
| Research integrity | 0.013 | 0.010 |
| Insufficient payload (model declined to judge) | 0.004 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".