‘Full Protection and Security’ Clauses and Other Treaty Provisions

Abstract

FPS clauses are closely related to other standards of investment protection. The relationship between the FPS and the FET standards has given rise to divergent approaches, including the characterization of the two obligations as a single standard and the classification of FPS as an element of the FET standard. The better view is, however, that the two standards are independent from each other. As FPS refers primarily to protection against third party violence, the standard crystalizes the security function of the ‘Hobbesian’ state, whereas the FET standard is intertwined with the rule of law. There might also be an interplay between the FPS standard and expropriation clauses, the prohibition of discriminatory and arbitrary measures, national treatment, MFN clauses, and war clauses. Still, as a rule, a fairly clear line can be drawn between responsibility for breach of the FPS standard and responsibility for breach of other obligations under international investment agreements.