CYIL vol. 16 (2025)

MICHAŁ PYKA Regrettably, the proposed approach to the interpretation of the notion of investment is not free from considerable shortcomings. First, the literal meaning of the term ‘economic development’ cannot be ignored, which indicates that what should be sustainable is only the ‘economic development’ and not ‘development’ in general. For this reason, the idea of interpreting the notion of ‘economic development’ as ‘sustainable economic development’ would lead to the exclusion of other than economic (social, environmental) aspects of development. Consequently, the notion of investment would not be transformed into the fully ‘sustainable’ one. Second, interpretation of the notion of investment in light of preambular references to economic development understood as ‘sustainable economic development’ would in fact constitute a return to the Salini element of contribution to economic development, which was rejected by the overwhelming number of arbitral decisions. The majority of possible justifications for the application of the ‘contribution to economic development’ element of the Salini test, including the arguments raised up by its proponents 149 , were rejected in arbitral jurisprudence 150 . Third, the application of the concept of ‘sustainable economic development’ raises almost the same interpretative problems as the application of the ‘contribution to the economic development of the host state’ element of the Salini test. Whether contribution of an investment to sustainable economic development must be continuous, actual or can be potential and include only expected or promised future contributions 151 , and whether it must be substantial 152 or can be only minimal. 153 6. Conclusion The analysis of the recently concluded investment treaties performed within this article has evidenced the existence of two distinct development paths, which do not seem compatible with each other. To date, increased presence of the references to sustainable development in the preambles to investment treaties have not been accompanied by even comparable presence of the references to sustainable development in the definitions of investment. Essentially, preambular references to sustainable development do not have any direct bearing on the 149 See SHAHABUDDEEN, Mohamed, Dissenting Opinion to Award on jurisdiction in Malaysian Historical Salvors, SDN, BHD v. The Government of Malaysia (n 100) paras 14–32; ABI-SAAB, Georges, Dissenting Opinion to Decision on Jurisdiction and Admissibility in Abaclat and Others v. Argentine Republic , ICSID Case No ARB/07/5 (4 August 2011) para 48–50. More on this issue see: BECHKY, Perry S., ‘Salini’s Nature: Arbitrators’ Duty of Jurisdictional Policing’ 2018 (17) The Law and Practice of International Courts and Tribunals 145, 152–153. 150 See n 110–111. 151 MAHMUTAJ, Klentiana, ‘Will the Morocco-Nigeria Bilateral Investment Treaty Transform Sustainable Development into Hard Law?’, EJIL:Talk! Blog of the European Journal of International Law (27 January 2022) accessed 30 September 2025. 152 Cf the definition of investment in Article 1(4) of Indian Model BIT (n 80) that enumerates significance for the development of the Party in whose territory the investment is made among the characteristics of an investment. On the arguments for the substantial contribution to the economic development see SHAHABUDDEEN (n 149) paras 33–38. 153 OKPE, Felix K., ‘Endangered Element of ICSID Arbitral Practice: Investment Treaty Arbitration, Foreign Direct Investment, and the Promise of Economic Development in Host States’ (2014) 13 Richmond Journal of Global Law and Business 217, 259–260.

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