Malaysian Historical Salvors Sdn, Bhd v. Government of Malaysia

Abstract

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Whether there was an independent obligation to show that an investment satisfied the definition under Article 25 of the ICSID Convention in addition to the definition provided by the BIT

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Whether the Salini test provided mandatory legal requirements or should be considered holistically

Jurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Whether there was a requirement of regularity of profit and return

Jurisdiction — Investment — Economic development — ICSID Convention, Article 25 — Whether there was regularity of profit and return — Whether the investor made contributions – Whether the contributions took place over a duration of time — Whether the investor accepted risk — Whether the investor made a significant contribution to the host State’s economic development

Annulment — Manifest excess of powers — ICSID Convention, Article 52(1) — Jurisdiction — Interpretation — ICSID Convention, Article 25 — VCLT, Article 31 — VCLT, Article 32 — Salini test — Travaux préparatoires — Whether the preparatory works demonstrated that the drafters of the ICSID Convention left the meaning of investment for later agreement of the contracting parties — Whether elements of the Salini test were mandatory requirements of an ICSID investment — Whether a tribunal’s failure to consider the definition of investment under a BIT and thus failure to exercise jurisdiction was in manifest excess of its powers

Interpretation — Travaux préparatoires — VCLT, Article 31 — VCLT, Article 32 — Whether a term must be regarded as ambiguous or obscure before a tribunal may resort to preparatory works

Annulment — Costs — Small claims — Whether an annulment committee should depart from the usual practice of sharing equally the costs of an annulment proceeding so as not to deter small claims under the ICSID Convention