4 Analysis of Specific General Principles of Law

Subject(s):

NAFTA (North American Free Trade Agreement) — Denial of justice — Fair and equitable treatment standard — Good faith — Legitimate expectations — Proportionality — General principles of international law — Due process — Damages — Unjust enrichment

This chapter assesses whether a number of concepts which have been identified in the past by scholars, courts, and tribunals should be recognized as general principles of law (GPL). These concepts include the clean hands doctrine; good faith; unjust enrichment; force majeure; proportionality; acquired rights; rebus sic stantibus; mitigation of damages; denial of justice and due process; and fair and equitable treatment (FET), including the specific question regarding the protection of ‘legitimate expectations’. The question of the GPL status of the concept of legitimate expectations is very controversial. So far, awards have simply not addressed this matter. Nevertheless, the concept of legitimate expectations is already considered by tribunals—except in the specific context of the North American Free Trade Agreement (NAFTA)—as an autonomous element of the FET standard.