The Salini tribunal
required a claimant using the arbitration rules of the International Centre for
the Settlement of Investment Disputes (ICSID) to demonstrate that its asset
displayed certain features inherent to an investment, regardless of whether it
satisfied the definition in the investment treaty under which it claimed. Some
tribunals then applied the Salini test, as it is now known, to investment
treaty claims under other arbitration rules. The test became a significant obstacle
to any not-for-profit organization hoping to claim under an investment treaty
when subsequent tribunals concluded that one of those inherent features was an
expectation of profit. While some non-profit organizations pursue projects for
profit, many do not. Recent tribunals have provided comfort to such
organizations by declining to apply the Salini test. However, many future
tribunals will not have that option since drafters have started incorporating
the test into treaties.