Khaled was quoted as saying by local media on Tuesday that replacing the NSM system would incur extra costs for Malaysia, as it involves training personnel as well as integrating the new system with existing platforms.
Last week, the Norwegian foreign ministry confirmed that “certain licences related to the export of specific defence technology to Malaysia have been revoked”.
This followed reports earlier in May that Norway had banned the delivery of the NSMs just days before the scheduled date under a procurement contract signed in April 2018 with Malaysia.
KDA said export licensing decisions are handled by the Norwegian authorities, while the foreign ministry said Oslo valued its relationship with Malaysia and looked forward to a constructive dialogue.
Anwar, however, did not pull any punches, describing contracts as “solemn instruments” that are “not confetti to be scattered in so capricious a manner”.
“If European defence suppliers reserve the right to renege with impunity, their value as strategic partners flies out the window,” he wrote in a statement posted last Thursday on social media.
Whether Malaysia has a strong legal case will depend heavily on the contract itself, Jamil said.
“Particularly whether export approval was explicitly a condition tied to delivery and what remedies exist if a sovereign government blocks the transfer after signing,” he added.
LEGAL ACTION
The news website of the US Naval Institute reported last Thursday – citing a Malaysian defence official – that Norway had invoked “force majeure” in cancelling the contract between KDA and the Malaysian government.
Force majeure is a contractual clause that frees both parties from liability or obligation due to extraordinary circumstances that impact the contract.
Norway’s move could also be related to a US-made gyroscope component found in the NSMs, the report by the private non-profit military association said, citing an unidentified official.
Gyroscopes are used to measure orientation angles and rate changes with the data used to keep the missile on course.
Abdul Rahman Yaacob, a senior fellow at Verve Research, an independent think-tank covering Southeast Asian foreign policy and security affairs, said Norway’s revocation could be linked to US restrictions on exports of these gyroscope components.
“Malaysia could argue that US restrictions on the export of sensitive military components do not constitute a genuine disruptive event under the doctrine of force majeure,” he told CNA.
“This could form the basis of potential legal action by Malaysia against Norway. Norway, however, is likely to argue otherwise.”
If the NSM contract gave Norway “broad regulatory discretion” in terms of export approval, Malaysia might have to rely more on political leverage than legal leverage, Jamil said.
“That gives Norway a strong basis to argue that it is acting within its legal and regulatory rights, even if Malaysia views the timing as deeply problematic,” he said.
