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Tribunal found that the contract between the parties did not contribute to Malaysia’s economic development
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The tribunal dismissed the claimant’s claims; remaining objections were not examined
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Contribution to the state’s economic development must be significant
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Claimant did not assume risks beyond the ordinary commercial risks of salvage contracts, and therefore only satisfies this criterion “superficially”
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The duration of the claimant’s venture met the Salini test only in the quantitative sense – but this circumstance was deemed insufficient to decline jurisdiction
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The claimant made contributions in money, in kind and in industry
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Lack of regularity of profit was immaterial in the present case
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Dichotomy of approaches has little significance as tribunals, in practice, carried out an “empirical analysis”
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Tribunal identified two approaches to the notion of investment under the ICSID Convention
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Notion of investment entails the promotion of “some form of positive economic development” for the host state
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Mihaly v. Sri Lanka, Alcoa v. Jamaica and SGS v. Pakistan were considered to be of no “significant assistance”
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No stare decisis doctrine, but earlier cases can assist the tribunal
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Tribunal adopted a “two-stage approach”
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Background: marine salvage company launched ICSID arbitration over Malaysia’s alleged failure to make contractual payments
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Majority looks to UK-Malaysia BIT first, and then to ICSID Convention
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Third member of ICSID annulment committee in Malaysia case insists upon significant contribution to economic development
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Judge Shahabuddeen declines to overturn finding of no substantial contribution
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