CYIL vol. 16 (2025)

CYIL 16 (2025) THE ‘SUSTAINABLE’ MEANING OF THE NOTION OF INVESTMENT… wording of the definitions of investment. The latter appear to have their own developmental path, following the emerging jurisprudence constante on the notion of investment, within which the three-elementary version of the Salini test is becoming increasingly present. It is significant for this development that definitions of investment remain extremely reluctant in incorporating the Salini element of contribution of an investment to the economic development of the host state. This element has been generally rejected both in investment treaty making and arbitral jurisprudence. States-parties to investment treaties seem to not notice the potential of this element in fulfilling the objectives of sustainable development as the purpose of investment treaties. Consequently, in modern investment treaty making there exist a discrepancy between the openness on sustainable development in preambles to investment treaties and the closeness of definitions of investment. The possibilities of ascribing a ‘sustainable’ meaning to the notion of investment through its interpretation in investment arbitration, identified within this article, cannot constitute a plausible solution to the discrepancies present in the modern investment treaty making. Apart from interpretative deficiencies, the proposed requirement for investments to contribute to sustainable development of host states, regrettably, so close resembles the rejected requirement of contribution to economic development to be accepted in arbitral jurisprudence. It appears that arbitral jurisprudence will rather await the ‘new Salini ’ decision, which could constitute a milestone for the modified, ‘sustainable’ jurisprudence constante on the notion of investment, than try to ascribe a ‘sustainable’ meaning to the notion of investment.

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