The Application of the Salini Test Beyond Article 25 of the ICSID Convention: Analysis of Recent Trends in Treaty and Arbitral Practice

Abstract This article explores two developments that have led to an extension of the sphere of application of the Salini test, a set of ‘objective’ requirements for the existence of an investment established by the Salini tribunal under Article 25 ICSID Convention. The first such trend consists of the formal incorporation of Salini -type criteria or ‘characteristics’ into treaty definitions of the term ‘investment’. The second development relates to arbitral rulings (based on Romak v Uzbekistan ) in which investment tribunals have held that the ‘objective’ Salini criteria apply not only under Article 25 ICSID Convention, but also under treaty definitions of ‘investment’. The present contribution provides a detailed analysis of these two trends, exploring the reasons for these developments and assessing the merits of the Romak case law. It also examines the practical challenges raised by these developments, including the redundancy of the traditional Salini test and the risk of inconsistent case law.