Malaysia and investor-state dispute settlement: Learning from experience

• Published in: Journal of World Investment and Trade
• Main Author: Jusoh S.; Razak M.F.A.; Mazlan M.A.
• Format: Review
• Language: English
• Published: Brill Nijhoff 2019
• Online Access: https://www.scopus.com/inward/record.uri?eid=2-s2.0-85068200957&doi=10.1163%2f22119000-12340065&partnerID=40&md5=45697b0230cf846775c7dd4dc53fb393

Malaysia is an important destination for foreign direct investment and has signed more than 70 investment guarantee agreements. Most allow investor-state dispute settlement (ISDS) and Malaysia has been subject to three claims, including two fully argued cases: Philippe Gruslin and Malaysian Historical Salvor. Yet Malaysian companies have also utilised ISDS provisions: In MTD Equity Bhd v Chile, Telekom Malaysia v Ghana, and Ekran Berhad v China (the first-ever ISDS claim against China). These cases provide lessons for Malaysia in becoming better prepared to negotiate newer generations of investment treaties, and to defend further potential cases. Malaysia has not reacted negatively to investment treaties despite the cases filed against the country. In fact, in light of its evolving interests Malaysia has become more of a rule-maker in international investment law rather than a rule-taker. Malaysia thereby continues to liberalise its investment regime and provide better transparency-the best defence against claims. © 2017 Copyright 2017 by Koninklijke Brill NV, Leiden, The Netherlands.