‘Protection and Security’ Clauses in Investment Treaties: A Typology
The language of FPS clauses is signalized by diversity. Investment treaties’ FPS clauses can be classified on the basis of three criteria. The first criterion is the existence or absence of a reference to customary or general international law. These references, while typically aiming at clarifying the relationship between the treaty-based standard and the customary standard, may fulfill different functions in different treaty frameworks. The second classification criterion is the presence of a reference to the domestic law of the host state, which in some cases could entail a derogation from customary law. The third criterion refers to the use of adjectives in the formulation of FPS clauses and extent to which the choice of a formula such as ‘full protection and security’, ‘constant protection and security’ or ‘legal protection and security’ has a bearing on the substance of the treaty-based standard.