Malaysian Salvors Ltd. v. Malaysia

Case Title: Malaysian Historical Salvors, SDN, BHD v.
The Government of Malaysia

Docket Number: ICSID Case No. ARB/05/10
Date: 17 May 2007
Case Doctrines:
On economic development as a factor of an “investment”
Not every contract entered into with a sovereign state will have a positive impact on the economic development of
the host State in the sense envisaged under the ICSID Convention. Although the Contract was directly entered into
by the Claimant with the Respondent, that does not ipso facto make the Contract an “investment” within the ICSID
Convention. The economic impact of the benefits of the Contract must be assessed to determine whether there was
an “investment.” Accordingly, the Tribunal must reject any perceived political or cultural benefits arising from the
Contract in assessing whether it constituted an “investment” except where such benefits would have had a
significant impact on the Respondent’s economic development. Stripped of all political and cultural benefits arising
from the Contract, the Tribunal must assess whether the benefits arising from the Contract were simply a
commercial benefit arising from the Contract or whether the Contract provided a significant contribution to the
Respondent’s economy.
Facts of the Case

1. The claimant, a British company, had entered into a contract for the salvage of a historical wreck, the
Diana, which had sunk off the Malaysian coast in 1817.
2. The arrangement was that the claimant would have a right to share in the proceeds of the sale of the
recovered items.
3. The Malaysian Archaeological Commission, however, decided to withhold pieces from the auction because
of their historical significance.
4. Items of porcelain originating in China and being taken by a British ship had historical significance not
only to Malaysia but also to other peoples.
5. The claimant, having failed before the Malaysian courts, alleged violation of the UK–Malaysia investment
treaty before an ICSID tribunal consisting of a sole arbitrator.
6. The sole arbitrator canvassed the existing authorities on the definition of an investment under the ICSID
Convention and the investment treaty.
7. There was little doubt in the minds of the sole arbitrator and three other arbitrators at the annulment phase
that the indicia of the definition in the investment treaty were satisfied, as that definition included a claim to
money and to performance under a contract having financial value; the contract involved intellectual
property rights; and the right granted to salvage may be treated as a business concession conferred under
contract.
8. The transaction qualified as an investment on these several grounds, but the issue was whether it qualified
as an investment for the purposes of the ICSID Convention.
Issue/s
1. Whether or not the transaction qualified as an investment for the purposes of ICSID Convention.
Ruling
1. NO. The Tribunal first considers a hallmark of “investment” cited in Joy Mining, which is that there must be
regularity of profits and returns. This particular hallmark did not feature in the so-called Salini test, although
it is mentioned in Schreuer. There is no regularity of profits and returns on the present facts. It is not in
dispute that the Claimant has expended its own funds, whether in the form of equipment, know-how or
personnel, or in the performance of the Contract in its entirety, without any cash payment or other financial
assistance from the Respondent. Accordingly, the Tribunal finds that the Claimant has, like the claimants in
Salini, made contributions in money, in kind and in industry although, as the Respondent has pointed out in
its submissions of December 14, 2006, the size of the contributions were in no way comparable to those
found in Salini, Bayindir and Jan de Nul or even in Joy Mining. Furthermore, the nature of the Claimant’s
contributions are largely similar to those which might have been made under a commercial salvage contract
(albeit with additional obligations in assisting in the ultimate sale of the salvaged articles).
The Tribunal concludes that, although the Claimant satisfies the duration characteristic or criterion in the
quantitative sense, it fails to do so in the qualitative sense. It is not in dispute that all the risks of the
Contract were borne by the Claimant. The fact that these risks were not in any way borne by the Respondent
would appear to afford a stronger reason to hold that the activity is an “investment” within the meaning of
Article 25(1) as compared to an investment where the risks were shared. However, it has been conceded by
counsel for the Claimant that salvage contracts are often on a “nofinds-no-pay” basis. This would not
necessarily mean that all salvage contracts would be an “investment” within the meaning of Article 25(1),
assuming this feature of investment to be the only factor in doubt. This is because the characteristics of
“investment” identified by the tribunals in ICSID jurisprudence must be considered globally. The fact that
the risks under these contracts would be assumed by the salvor does not necessarily lead to the inevitable
conclusion that the salvage contract must be considered as an “investment” under the ICSID Convention.
The nature of a salvage contract would mean that the assumption of risk by the salvor would be inherent in
the transaction, rather than a special feature of the Contract which affected the salvor’s decision to
undertake the project in question.
The benefits flowing from the Contract were no different from the benefits flowing to the place of the
performance of any normal service contract. The benefit was not lasting, in the sense envisaged in the
public infrastructure or banking infrastructure projects. The submission that historical marine salvage
contracts could lead to a thriving tourism industry appears speculative. In contrast, it is highly likely that a
public infrastructure or banking infrastructure project such as those in CSOB, Jan de Nul and Bayindir could
provide positive economic development to the host State.
Disposition:
Accordingly, the Tribunal concludes that the Contract is not an “investment” within the meaning of Article
25(1) of the ICSID Convention. The Claimant’s claim therefore fails in limine and must be dismissed for want
of jurisdiction.
Additional Notes:
1.

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Case Title: Malaysian Historical Salvors, SDN, BHD v.

The Government of Malaysia

Facts of the Case

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