Foreign Investments in the Renewable Energy Sector: Is the Standard of Full Protection and Security Neutral or Instrumental?

The emerging physical and cyber threats against the energy sector are alarming. With the rise in renewable energy deployment around the world, this sector is increasingly exposed to these threats. The potential negative impact of these threats on the protection and promotion of foreign investment in the renewable energy sector calls for legal analysis of the role of International Investment Agreements (IIAs). IIAs should not remain passive and indifferent to these threats, particularly as the international initiatives have not yielded the expected results. The role of the Full Protection and Security (FPS) standard as the most prominent security standard is often overlooked. Most IIAs incorporate vague FPS clauses. In addition, the tribunals have in several cases narrowly interpreted this standard, restricting its application not only to customary international law but also to the physical security of investments. Therefore, the question is raised as to whether FPS should be regarded as merely a neutral provision or an instrumental obligation to protect foreign investments. This article examines the major threats against renewable energy projects and describes the prevailing approaches to FPS in investment arbitration decisions and recent IIAs. To solve this dilemma, it further analyses the preferable renewable energy investment -friendly clauses incorporated in recent IIAs. Not only are the FPS clauses analysed but also the relative provisions that can enhance their efficiency are mentioned. It concludes that drafting appropriate clauses can create a level playing field for FPS to overcome the legal gaps in protecting the foreign investments in this sector.