Malaysia must apply to set aside Paris Court's RM62bil award for Sulu heirs, says Sabah Law Society

 

KOTA KINABALU: Malaysia must overturn the Paris Arbitration Court's decision to award US$14.62bil (RM62bil) to the heirs of the defunct Sulu Sultanate while pursuing the arbitrator Dr Gonzalo Stampa's move to ignore a suspension order on the case by the French and Spanish courts.

Sabah Law Society president Roger Chin said notwithstanding the Spanish and French investigations on questionable reasons with Stampa going ahead with the case, it was important for Malaysia to set aside the arbitration award by the court.

"Regardless, as it stands, there is an arbitration award. Malaysia has the option of making the appropriate applications, including an application to set the award aside in France," he said on Thursday (March 3).

Chin said the time limit for applying for the setting aside of an arbitral award is one month from the notification under the Code of Civil Procedure, Article 1519.

This deadline is extended by two months when the requesting party is domiciled abroad, pursuant to regular civil procedure rules, he said.

Under Article 1520 of the Code of Civil Procedure, French courts may set aside an award on one of the following grounds - the arbitral tribunal wrongly upheld or declined jurisdiction; the arbitral tribunal was irregularly constituted; the arbitral tribunal ruled without complying with the mandate conferred on it; the due process requirement was violated; or recognition or enforcement of the award would violate international public policy.

On Wednesday (March 2), Wisma Putra and the Attorney-General's Chambers in a joint statement said they did not recognise the award as the claimants, without the Government of Malaysia's knowledge, proceeded to obtain an ex-parte order from the Tribunal de Grande Instance in Paris to recognise the Partial Award on Jurisdiction rendered by Stampa on May 20, 2020, which had been previously annulled by the High Court of Justice of Madrid as the claim was not properly served to Malaysia in accordance with peremptory international rules and Spanish law.

On the basis of the order, Stampa changed the seat of the arbitration to Paris, France, to render the Final Award.

The Malaysian government had filed an appeal against the French Order in the Courts in Paris and had also successfully obtained an ex-parte order, dated Dec 16, 2021 (Suspension Order) from the First President of the Paris Court of Appeal, suspending the effects of the French Order in France and barring the Claimants from relying on it.

In violation and defiance of this Suspension Order, the claimants maintained that the French Order was in force and that a final award should be rendered with a seat set in Paris.

The Spanish Public Prosecutor has filed a criminal complaint against Stampa for serious contempt of court and professional intrusiveness.

On Feb 28, Stampa issued the award in a Paris court where Malaysian officials were not represented, based on the alleged violation of payments of RM5,300 cession money under the 1878 agreement, signed by Sultan Jamal Al Alam, Baron de Overbeck and the British North Borneo Company's Alfred Dent.

Malaysia stopped paying the Sulu Sultan's heirs their annual RM5,300 cession money since 2013, following the Lahad Datu armed incursion.

Malaysia maintains the claim is not commercial in nature and thus, cannot be subjected to arbitration and that the 1878 Agreement contains no arbitration agreement while the identities of the claimants (the heirs) are doubtful and have yet to be verified.

Notwithstanding the various arguments, Chin said it was important to set aside the award by the Paris court as it could be used by the claimants to enforce the award.

"If Malaysia refuses to make the payment, the claimants will have the right under the New York Convention to enforce the award against Malaysian state assets in any of the 169 signatory state parties around the world," he said. - Star