CYIL vol. 16 (2025)

MICHAŁ PYKA Table 1. Comparison of the groups of investment treaties concluded between 2014 and 2023 as regards the references to sustainable development in preambles and definitions of investment

Preamble

Definition of investment

The Salini test with the element of contribution to sustainable development

The Salini test with the element of contribution

Group number

Reference to sustainable development

The 3-elementary Salini test

Examples of investment treaties

to economic development

Hungary–United Arab Emirates BIT (2021); Bahrain–Japan BIT (2022) JAEPA (2014); ASEAN–Hong Kong and China SAR Investment Agreement (2017) Jordan–Turkey BIT (2016); Türkiye–Uruguay BIT (2022) Brazil–Mexico BIT (2015); Central African Republic–Rwanda BIT (2019) USMCA (2018); the Netherlands Model BIT (2019); RCEP (2020); PACER Plus (2023) Indian Model BIT (2015); Iran– Slovakia BIT (2016); ECOWAS Common Investment Code (ECOWIC) (2019) Egypt–Mauritius BIT (2014); Morocco–Nigeria BIT (2016); Draft Protocol to AfCFTA (2023)

–

–

–

–

1.

–

+

–

–

2.

–

–

+

_

3.

+

–

–

–

4.

+

+

–

–

5.

+

–

+

–

6.

+

–

–

+

7.

The outcome of the research enables the following conclusions. First, the research has not evidenced the existence of any prevailing approach to the use of references to sustainable development in the texts of preambles to investment treaties and in the definitions of investment. Second, as much as three of the identified seven groups of investment treaties still adopt a ‘traditional’ approach to defining investment, with or without the elements of the Salini test, but always without any reference to sustainable development. 91 Nevertheless, a considerable number of the analysed investment treaties, belonging to four of the identified seven groups, contain preambular references to sustainable development. Third, none of the identified treaties adopting a ‘traditional’ approach to defining investment contain any reference to sustainable development in the definition of investment, e.g. in the form of the criterion of the contribution of an investment to the sustainable development of the host state. 91 Cf OLAOYE and SORNARAJAH (n 35) 121, who point out that the larger majority of investment treaties in force do not make any express reference to ‘development’.

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