Separate Comments of TEPAC Members on the U.S.-Central American Free Trade Agreement (CAFTA)

The authors argue that CAFTA's investment chapter grants foreign investors greater substantive rights than U.S. investors, violating the Trade Act of 2002. They specifically criticize the lack of an appellate review mechanism, the absence of a general environmental exception, and the use of subjective standards like "fair and equitable treatment" which they claim could undermine democratic governance and environmental protections.

• The authors contend that CAFTA fails to meet the Trade Act of 2002 mandate that foreign investors not be accorded "greater substantive rights" than U.S. investors, particularly because disputes are decided by ad hoc panels not bound by U.S. Supreme Court precedent.
• The document identifies two critical omissions in the agreement: the lack of an appellate review mechanism for investment arbitration and the unresolved funding and institutional home for the citizen submission process under Article 17.7.
• The authors argue that the absence of a general environmental exception in the investment chapter poses a threat to public interest policies, noting that the existing exception in Article 10.11 is "circular logic" and provides no meaningful safe harbor.
• The inclusion of "fair and equitable treatment" as a standard is criticized as being inherently subjective and lacking a corresponding right under U.S. law, which the authors claim could lead to the second-guessing of democratic governmental actions.
• The authors claim the expropriation provisions are flawed because they omit essential U.S. legal standards, such as the requirement that governmental action must permanently interfere with a property in its entirety to constitute a taking.

APA

Butler, W., Karpatkin, R. H., Magraw, D., & Zaelke, D. (2004). Separate Comments of TEPAC Members on the U.S.-Central American Free Trade Agreement (CAFTA). Center for International Environmental Law. https://www.ciel.org/Publications/TEPAC_CAFTA_18Mar04.pdf

Chicago

Butler, William, Rhoda H. Karpatkin, Daniel Magraw, and Durwood Zaelke. Separate Comments of TEPAC Members on the U.S.-Central American Free Trade Agreement (CAFTA). Center for International Environmental Law, 2004. https://www.ciel.org/Publications/TEPAC_CAFTA_18Mar04.pdf.

Wikipedia

{{cite press release |last1=Butler |first1=William |last2=Karpatkin |first2=Rhoda H. |last3=Magraw |first3=Daniel |last4=Zaelke |first4=Durwood |title=Separate Comments of TEPAC Members on the U.S.-Central American Free Trade Agreement (CAFTA) |publisher=Center for International Environmental Law |date=18 March 2004 |url=https://www.ciel.org/Publications/TEPAC_CAFTA_18Mar04.pdf |access-date=17 August 2026 |via=Climate Insights Directory}}

BibTeX

@misc{butler2004separate, author = {Butler, William and Karpatkin, Rhoda H. and Magraw, Daniel and Zaelke, Durwood}, title = {{Separate Comments of TEPAC Members on the U.S.-Central American Free Trade Agreement (CAFTA)}}, publisher = {Center for International Environmental Law}, year = {2004}, month = mar, url = {https://www.ciel.org/Publications/TEPAC_CAFTA_18Mar04.pdf}, urldate = {2026-08-17}, note = {Indexed by Climate Insights Directory} }