Malaysia’s claim of a criminal investigation against the arbitrator who awarded US$14.92 billion (RM62.59 billion) to Sulu descendants is a concocted ‘farce’ to smear his reputation, according to a United Kingdom-based lawyer.
Paul Cohen, who represented the Sulu claimants, contended that the Madrid court never ordered Spanish arbitrator Gonzalo Stampa to refrain from performing his arbitral duties.
The lawyer from law firm 4-5 Gray’s Inn Square in London claimed that raising such an allegation has reduced Malaysia to a “rogue” nation unwilling to abide by its duties and responsibility as a signatory of the New York Convention.
“Malaysian officials claim that the Spanish prosecutor filed a criminal complaint against the arbitrator. This is twisted. The prosecutor is bound to investigate a complaint brought by a sovereign state.
“Malaysia filed such a complaint, and seemingly reported it as if it was an official Spanish initiative. If I filed a police report in Malaysia against a judge whose work I dispute, could I then say that the MACC has charged him?” Cohen said in an email to Malaysiakini recently.
He added that it is not a crime to serve as an arbitrator.
“No court in Spain ordered Stampa to desist from his arbitral duties, nor could any do so under the plain terms of Spain's arbitration law.
“The criminal investigation is thus a transparent farce manufactured by Malaysia to besmirch Stampa's reputation in the face of his award. We are confident that no charges will - because they cannot be - filed against him.
“By levelling accusations of criminal behaviour against an arbitrator, Malaysia is joining a small club of constitutionally rogue nations who would prefer to throw sand into the gears of a dispute resolution mechanism they have in theory accepted and to avoid its international obligations,” Cohen said.
“This is not a good look for a sophisticated country like Malaysia, and a disastrous policy,” he added.
Stampa’s validity as arbitrator
The lawyer was responding to the Malaysian administration’s dispute over the validity of Stampa’s appointment as arbitrator and its refusal to pay the massive award to the Sulu descendants.
In announcing their intent to challenge the Feb 28 arbitral award by Stampa, the government claimed that the “Spanish public prosecutor has filed a criminal complaint against Stampa for serious contempt of court and professional intrusiveness”.
The administration also contended that “the Criminal Court N 40 of Madrid has subsequently started a criminal investigation in connection with the illegal actions of Stampa”.
The Sulu descendants were awarded the arbitral amount, following their claim that Malaysia breached the terms of an 1878 agreement.
The colonial-era ‘treaty’ was signed between then Sulu ruler Sultan Jamal al Alam, German-born adventurer Baron von Overbeck, and British businessperson Alfred Dent of Dent & Overbeck Company.
Malaysia was alleged to have violated the agreement in 2013, when it stopped making the RM5,300 annual payments to the Sulu sultan's heirs, via the Philippine administration.
Malaysiakini has reached out to Attorney-General Idrus Harun for a response to the UK lawyer’s contention.
‘Grossly irresponsible’
In reference to the Malaysian government’s dispute over the identities of the sulu descendants, Cohen countered that the Southeast Asian country knows enough about them to annually issue the cheque payments.
“The (Malaysian) minister reportedly casts doubt on the identity of the claimants. In this highly charged matter, this is grossly irresponsible.
“The claimants are the individuals acknowledged by Malaysia throughout the decades, to whom Malaysia sent individual cheques through the Foreign Ministry each year.
“They know the names; they know the people. And they know and have formally acknowledged that my clients were absolutely not involved in any challenge to Malaysian sovereignty, let alone any incursions,” the lawyer contended.
Malaysia stopped the annual payments, following the 2013 intrusion into Lahad Datu, Sabah, by an armed group from the southern Philippines. The militants claimed to be linked to the Sulu sultanate. - Mkini
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