The fact is there has been an attempt by the Philippines to use the Sulu Sultanate’s claim that it always owned the state of Sabah to lay its claim on the state. Whilst it is a fact that the Sulu Sultanate owned Sabah at one point in history, the same cannot be said now. The Sulu Sultanate’s issue now left to be resolved is the outstanding annual payment of RM5,300. Image source: Sabah Kini.
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History of The Sultanate of Sulu
Before we look at Sulu’s claims and the explanation by the ex-Attorney General, Tommy Thomas, we need to understand who exactly the Sultanate of Sulu is and why the Sulu Sultanate still considers the state of Sabah as theirs and demands payments.
The Sultanate of Sulu was a Muslim state that ruled the Sulu Archipelago, parts of Mindanao and certain portions of Palawan in today’s Philippines, alongside parts of present-day Sabah, North and East Kalimantan in north-eastern Borneo.
The sultanate was founded on 17 November 1405 by Johore-born explorer and religious scholar Sharif ul-Hashim. Paduka Mahasari Maulana al Sultan Sharif ul-Hashim became his full regnal name, Sharif-ul Hashim is his abbreviated name. He settled in Buansa, Sulu.
After the marriage of Abu Bakr and a local dayang-dayang (princess) Paramisuli, he founded the sultanate. The Sultanate gained its independence from the Bruneian Empire in 1578.
An agreement signed between Sultanate of Sulu and the British commercial syndicate (Alfred Dent and Baron von Overbeck) in 1878, which stipulated that North Borneo was either ceded or leased (depending on translation used) to the British chartered company in return for payment of 5,000 dollars per year.
Malaysia views the dispute as a “non-issue”, as it not only considers the agreement in 1878 as one of cession, but it also deems that the residents had exercised their act of self-determination when they joined to form the Malaysian federation in 1963.
During a meeting of Maphilindo between the Philippine, Malayan and Indonesian governments in 1963, the Philippine government said the sultan of Sulu wanted the payment of 5,000 from the Malaysian government. The first Malaysian Prime Minister at the time, Tunku Abdul Rahman said he would go back to Kuala Lumpur and get on the request.
Since then, the Malaysian Embassy in the Philippines issues a cheque in the amount of RM5,300 (approx. ₱77,000 or US$1,710) to the legal counsel of the heirs of the sultan of Sulu. Malaysia considers the settlement an annual “cession payment” for the disputed state, while the sultan’s descendants consider it “rent”.
These payments however have been stopped as of 2013 in light of the attempted invasion of Sabah since Malaysia viewed that as an act of violation of the 1903 Confirmation of Cession agreement and its earlier 1878 agreement.
(Source: Wikipedia)
Then in early 2022, the Sulu Sultanate heir decided to bring their case to the arbitration court in Paris and then Spain for a claim of almost RM62 billion. Then Sulu Sultanate pulled a fast one when they seized 2 of Petronas’ assets and the extent of the Sulu’s claim blew over in Malaysia.
Since then, there have been accusations about how the mess with Sulu Sultanate was overlooked and it has come to a point where Malaysia may lose billion of money. Many accused the ex-PM, Najib of a rash decision to stop the annual payment of RM5,300 to the Sulu Sultanate and a few even blamed the ex-Attorney General, Tommy Thomas under Pakatan Harapan’s administration for communicating with the Sulu Sultanate heirs on their claims.
The extent of the Sulu Sultanate-controlled state covers the countries of the Philippines and Malaysia in modern times. Image source: Wikipedia
Statement from ex-AG Tommy Thomas
Considering that there have been critical calls to look at the ex-Attorney General, Tommy Thomas on the manner in which the Sulu Sultanate claims were handled during Pakatan Harapan’s administration, Tommy Thomas released the following press statement on 27th June 2022 clarifying the Sulu Sultanate claims history, issues with claims and the action moving forward:-
1. The recent public discussion on the “Seizure Notice” issued in Luxembourg against assets belonging to Petronas to satisfy the US$14.92 billion award by the Spanish Arbitrator Gonzalo Stampa has been marred by a fog of disinformation and lies. The Malaysian public is entitled to truthful disclosure of matters concerning the dispute between the Sulu Claimants and the Government of Malaysia, which led to this massive but completely illegitimate award.
This note is to record my experience in dealing with the dispute after I was briefed on it in August/September 2019 during the last six months of my tenure as Attorney General. At the outset, I should state that I no longer have access to documents, unless they are in the public domain. I hope this article will prompt those who have the full facts to join in the public discussion.
2. The 1878 Grant is the sole and exclusive basis of the claim by the descendants of the Sultan of Sulu. That Grant ceded ownership and sovereignty in perpetuity of parts of present day Sabah to the British North Borneo Company. It was a legacy of Empire. It was similar to the grant of Bombay by the Portuguese to the British in 1661 and the ceding of New York (New Amsterdam) by the Dutch to the British in 1664.
Nearer home, Penang in 1786 by the Sultanate of Kedah and Singapore in 1819 by the Sultanate of Johore: in both cases to the British. In none of these cases is there a similar claim in the 21st Century arising from the original grant in perpetuity. The Sulu claim must therefore be viewed in the context of empire and colonialism. The transfer of other peoples’ lands by one empire to another was commonplace in centuries past; a legal challenge by arbitration centuries later is novel.
Concession of Sabah by the Sultan of Brunei to Baron von Overbeck, December 29th, 1877 and by the Sultan of Sulu on January 22nd, 1878. Image source: Wikipedia
A. The bargain under the 1878 Grant
The three material parts of the Grant read as follows:-
“GRANT by Sultan of Sulu of Territories and Lands on the Mainland of the Island of Borneo. Dated 22nd January 1878.
We … Sultan of Sulu … hereby grant and cede of our own free and sovereign will to Gustavus Baron de Overbeck of Hong Kong and Alfred Dent Esquire of London as representatives of a British Company … forever and in perpetuity all the rights and powers belonging to us over all the territories and lands…In consideration of this grant … to pay as compensation to the Sultan the sum of five thousand dollars per annum.
In case any dispute shall arise between His Highness the Sultan his heirs or successors and the said Gustavus Baron de Overbeck or his Company it is hereby agreed that the matter shall be submitted to Her Britannic Majesty’s Consul-General for Borneo.”
3. None of the material parts are ambiguous. They are drafted in clear terms with legal implications, indicating the will of the parties. It was intended to have legal force. The first paragraph of the 1878 Grant clearly, plainly and unequivocally grants “for ever and in perpetuity” the lands identified in the document to two gentlemen as agents and representatives of the British North Borneo Company.
That paragraph cannot be interpreted in any other manner but as an outright grant which had the legal effect of transferring ownership of such lands from the Sultan of Sulu to the British Company. It was not a lease, and never intended to be of a temporary duration. The “consideration” for the cession was compensation in the sum of 5,000 dollars per annum, impliedly also for ever. That sum is fixed, and not subject to any increase or review.
4. The legal effect of the 1878 Grant was determined by the High Court of North Borneo in 1939 in Dayang Dayang Haji Piandao Kiram (f) v. The Government of North Borneo. The following statement was made by Chief Justice Macaskie in that case:-
“The deed of Cession was a complete and irrevocable grant of territory and the right reserved was only the right to an annual payment, a right which is in the nature of movable property.”
B. The Effect of the Confirmation Deed of 1903
5. On 22nd April 1903, the Sultan of Sulu signed the Confirmation Deed, stating that some islands unnamed in the 1878 Grant were also ceded to the Government of British North Borneo. Further, “cession moneys” were increased by 300 dollars a year.
Also signing the 1903 Deed was the Governor of British North Borneo, E. W. Birch. From 1903, the annual compensation has been fixed at 5,300 dollars.
C. The Significance of the 1939 Macaskie Judgment
6. The case referred to in paragraph 4 above was filed in the High Court of North Borneo in 1939 by the descendants of the Sultan of Sulu to determine which of them should rightfully receive the annual compensation of 5,300 dollars. It did not involve the British North Borneo nor the British Government, neither of which questioned their legal obligation to continue paying compensation of 5,300 dollars annually.
Hence, it was the Sulu Claimants who had a grievance among themselves and it was their choice to sue in the courts of North Borneo. Their choice to sue in North Borneo (rather than resorting to arbitration or any other forum) is of much legal significance, and relevant to the present dispute.
It is another factor pointing to North Borneo (or present day Sabah) as the natural and proper forum for the resolution of disputes relating to or arising from the 1878 Grant, to the exclusion of any other forum.
D. The effect of Malaysia’s establishment in 1963
7. The British Government had become successor in title to the British North Borneo Company in 1946 when North Borneo became a colony of the United Kingdom. Thus between 1946 and 1963 the British Government paid annual compensation of 5300 dollars to the Sulu Claimants.
8. The formation of Malaysia in 1963 presented a natural opportunity to end the annual payments to the Sulu claimants. Our founding fathers could have easily argued that the 1878 Grant was a colonial relic which did not bind the new Federation and the annual obligation to pay compensation shall remain with the British. Regrettably, the new Federation instead assumed the legal obligation of the retreating British colonial power to pay annual compensation without hesitation or protest.
Malaysia made such payments annually and without interruption until 2013. The continuous payment by Malaysia for 50 years is strong — indeed indisputable — evidence that Malaysia stepped into the shoes of the British Government as successor-in-title, and is estopped from contending otherwise. Hence in that half a century, Malaysia’s legal obligation to pay annual compensation to the Sulu claimants was never questioned by the Malaysian government.
On 11th February 2013, a group of 235 heavily armed terrorists claiming to be decendents of the Sulu Sultanate entered Lahad Datu and claimed it to be under Sulu’s control. Of course, they did not stand a chance against the superior Malaysia military and police forces which saw 68 of the terrorist killed and others arrested with 9 key leaders sentenced to death. Thousands of illegal Filipino immigrants were deported too. Image source: EDR
E. Why did Malaysia cease payments in 2013?
9. To the best of my knowledge, the Government of Malaysia did not publicly explain in 2013 why it ceased annual payments of compensation to the Sulu Claimants. This occurred during the administration of Najib Razak.
The Prime Minister, the Ministers of Foreign Affairs or Defence or the Attorney General ought to have issued a public statement rationalising their decision. Indeed, until today, a decade later, members of that administration have remained silent, which has led to unnecessary speculation and confusion.
10. The often given, unofficial explanation is that Malaysia stopped the payments because of the armed incursion in 2013 into Lahad Datu in Sabah. However, there appears to be no evidence linking the Sulu Claimants who were receiving the annual compensation from Malaysia with the armed invaders of Lahad Datu.
If the Government of Malaysia had such evidence, the prudent course would have been to file an action in the High Court of Sabah at Kota Kinabalu against the Sulu Claimants (all of whom were known to our Embassy in the Philippines where the annual payment was disbursed to them), seeking an Order of the Sabah Court that because the Sulu Claimants were personally and directly involved in the Lahad Datu invasion they had forfeited their right to receive future payments and that the 1878 Grant had ceased to operate.
If that had occurred, the Government’s action to cease payment would have received judicial imprimatur. Regrettably, this option was not exercised by those in charge in 2013.
11. Without ever having given any reason to cease payments to the Sulu claimants after 50 years, and without ever having sought judicial approval of the termination of payments, Malaysia breached the 1878 Grant.
In consequence, the Sulu Claimants would have a right to specific performance of the contract in question, namely, the 1878 Grant, which in practical terms mean that Malaysia must restore the arrears of annual compensation of RM5,300/- from 2013 until 2022, and undertake to pay the said sum annually thereafter.
12. Specific performance of the 1878 contract in practical terms means an annual monetary payment, the quantum of which was fixed in 1878 and 1903. The only loss that the Sulu Claimants suffered was the loss of the annual compensation sum of RM5,300/-: no more or no less.
The fundamental law of damages or compensation payable for loss caused by breach of contract is that when a contract has been broken, the party who suffers by the breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby which naturally arose in the usual course of things from the breach. In other words, the innocent party to the contract must, so far as money can do it, be restored to the position which that innocent party would have been in had the contract not been breached by the blameworthy party.
13. By letter dated 19th September 2019, I wrote to the counsel representing the Sulu claimants offering to pay the arrears from 2013 to 2019 totaling RM37,100.00, together with 10% simple interest totaling RM11,130.00. Hence the tender that I made to them was for a total sum of RM48,230.00. That represented in law the loss they suffered in the 7 years period.
Further, acceptance by them of the said sum of RM48,230.00 would also have meant that there would no longer be any dispute between the parties. Assurance was also given to them that Malaysia would pay the said annual sum for future years.
My letter expressly stated that the case was wrongly brought within the jurisdiction of Spain and that Malaysia was not recognizing nor submitting to the jurisdiction of Spain, whether exercised by its court, arbitral tribunal or otherwise.
F. What is the basis of the Arbitration commenced in 2018 by a Spanish Court appointing a sole Spanish Arbitrator
14. It will be recalled that the 1878 Grant contained this sentence:-
“In case any dispute shall arise between His Highness the Sultan his heirs or successors and the said Gustavus Baron de Overbeck or his Company it is hereby agreed that the matter shall be submitted to Her Britannic Majesty’s Consul-General for Borneo.”
15. A plain and ordinary reading of this sentence will yield the following conclusions:-
i) the word “arbitration” is not mentioned, although by 1878 arbitration was well developed, particularly under English law;
ii) the seat of the intended arbitral tribunal is not mentioned;
iii) the proper law of the contract that the intended arbitral tribunal should apply is not mentioned;
iv) the appointing authority for the arbitrator(s) is not mentioned;
v) whether the Arbitral Tribunal should comprise a single arbitrator or three arbitrators is not mentioned; and
vi) Spain is not mentioned; neither is France.
16. Hence, this sentence is a classic example of a “pathologically flawed” attempt at arbitration. It is incapable of compliance, partly because the office of “Her Britannic Majesty’s Consul-General for Borneo” no longer exists and partly because of the 6 flaws listed above. That may explain why the United Kingdom Foreign Office rejected a request, apparently made in 2017 to use the United Kingdom as a suitable forum.
If the British Government correctly decided that a reference to a non-existent office like her “Her Britannic Majesty’s Consul-General for Borneo” does not confer on the Courts of the United Kingdom a jurisdiction to appoint a “British based” arbitrator, it beggars belief that the Courts of Spain and France acted as they did. It is wholly contrary to international arbitration law and practise.
G. The significance of the decision of the High Court of Sabah in 2020
17. After due notice had been given to the sole Arbitrator, Dr Stampa and the British lawyers acting for the Sulu Claimants, the Government of Malaysia instituted legal proceedings in the High Court of Sabah in December 2019, just as the Sulu Claimants had done in 1939.
Because there is no arbitration clause in the 1878 Grant, and the office of “Her Britannic Majesty’s Consular-General for Borneo” has long ceased to exist, the only forum for resolving disputes arising from the 1878 Grant is the Courts of Sabah. The decision of any other forum purporting to exercise jurisdiction over this matter is illegitimate and ought to be completely disregarded by the Malaysian government.
18. In a judgment reported in the case of Government of Malaysia v. Nurhima Kiram Fornan [2020] 6 CLJ 429 Justice Mairin Idang determined 4 issues which are highly relevant, viz:
i) there is no valid or binding Arbitration Agreement;
ii) there is no waiver of Malaysia’s sovereign immunity to confer jurisdiction in proceedings before the courts of Spain which appointed the Spanish Arbitrator, Gonzalo Stampa;
iii) the High Court of Sabah is the natural and proper forum to determine all disputes; and
iv) there was forum shopping by the Claimants.
19. Although this judgment has no extra-territorial effect, it demonstrates that the High Court of Sabah is the forum for resolving disputes. Regrettably, the sole Arbitrator, Dr. Stampa, disregarded the judgment.
H. Behaviour of Arbitrator Stampa
20. It is the first duty of any person invited to become an arbitrator over a dispute to carefully read the arbitration agreement. Potential arbitrators prior to accepting office must satisfy themselves of their jurisdiction to sit and determine the dispute. Typically, the arbitration agreement will appear as a clause in the contract between the parties in dispute.
Unlike a domestic court, which is conferred by domestic law the power and jurisdiction to resolve civil disputes between persons (including companies and corporations) within its territorial limits, which means there is no question of refusing to consent to a court’s jurisdiction over such a dispute, arbitration proceedings require consent. By definition, it is consensual.
The parties must freely and voluntarily agree in writing in clear terms to submit their dispute to arbitration. Absent a written arbitration agreement, arbitration is not available. It cannot be imposed. Thus, how Stampa construed the relevant sentence in the 1878 Grant (which is the relevant operating contract) as an arbitration clause is absolutely beyond belief.
21. In an article entitled “The Sultan of Sulu Award: Is it enforceable in the US under the New York Convention?” published in the ITA in Review [2022] Vol 4, Issue 1, arbitration specialists Gary J. Shaw and Rafael T. Boza observed:-
“The Award against Malaysia is one of the largest awards ever issued against a state, surpassed only by the Yukos Award. It arises out of a 150-year-old contract with very ambiguous terms.
It was issued in the context of a highly disputed ad hoc arbitration, in which neither the alleged arbitration clause, nor the conduct of the proceedings was accepted by the parties or the courts of the seat, Spain.
The Arbitrator took actions which may be considered unreasonable, extreme, or even defiant, such as relocating the seat of arbitration, to ultimately issue a polarizing Award. Any enforcement effort, in any jurisdiction will likely be met with substantial resistance.”
I. Spanish and French Arbitrations
22. Malaysia applied to set aside all rulings from the Superior Court of Justice of Madrid, including its appointment of Stampa. In June 2021, the Spanish court found in favour of Malaysia, and set aside all the Superior Court’s prior decisions against Malaysia.
The Superior Court then directed Stampa to close the proceedings immediately, pursuant to its setting aside order. Stampa, clearly a rogue operator, disobeyed claiming that the Court’s intervention was not allowed under the Spanish Arbitration Act.
23. The Sulu Claimants then shifted their case to France. They applied before a Court in Paris, which granted their application to permit Stampa to relocate the seat of arbitration from Spain to France. Stampa stated in his Award that the decision of a court of his nation (Spain) constituted “unauthorised intrusions by local courts” in the proceedings that created “a certain risk for the Parties of incurring in a denial of justice in Madrid”. As a result of the Paris Court Order, the proceedings were relocated to France in October 2021.
24. In December 2021, Malaysia appealed against the order of the Paris Court to the Court of Appeal. The French appellate court stayed the order of the lower court. Malaysia sent the order of the French court to Stampa, and requested that the arbitration be discontinued immediately. Again, Stampa rejected Malaysia’s request.
25. Stampa went ahead to issue his Final Award on February 28, 2022, in flagrant disobedience of the decisions of the Madrid and Paris Courts. Malaysia immediately challenged this Award in the Court of Appeal in Paris. As a result of the seizure notice, Malaysia’s application to suspend the enforcement of the award in France was granted. That seems to represent the present position.
In parallel, the Malaysian Ambassador lodged a complaint against Stampa with the Spanish authorities. The Spanish Public Prosecutor filed a criminal complaint against Stampa for serious contempt of court and professional intrusiveness. The Criminal Court of Madrid has commenced a criminal investigation in relation to these complaints.
26. It must be emphasized that the appointment of Stampa as sole arbitrator was made by a court in Spain. However, as stated earlier, this is contrary to the express provisions of the 1878 Grant, which is the sole and exclusive basis of the dispute by the Sulu Claimants.
Further, the application was made without proper service on Malaysia. Likewise, the alleged transfer to France was made “ex-parte” and without consent from Malaysia: the courts of Paris too have no jurisdiction under the 1878 Grant to determine the dispute.
J. Legally unsustainable claim by the Sulu Claimants
27. In rejecting Malaysia’s offer for all arrears and interest totalling RM48,230/- as set out in my letter dated 19th September 2019, Paul Cohen, Counsel for the Sulu Claimants in his reply letter dated 21st October 2019 set out as follows the claim that the Sulu Claimants were pursuing in the Spanish arbitration:-
“There remains the issue of the unconscionable imbalance between the annual payment amount and the actual value of the territory, in light of the unanticipated discovery and development of certain substantial natural resources (hydrocarbons, crops and others). That is the heart of the dispute. The quantum of your suggested payments to my clients is frankly derisory in comparison to the actual value of their claim.”
28. However, the 1878 Grant contains no right for the Claimant to make such extravagant, unsustainable claims in law if a breach of contract on the part of Malaysia occurs. “The actual value of the territory”, viz, the market value in 2022 of the lands ceded to the North Borneo Company in 1878 can never be the subject of any claim by the Claimants. It is hopelessly remote and scandalously opportunistic by any yardstick.
As I previously mentioned, title, ownership and sovereignity of the lands ceded in 1878 passed at the date of the Grant, and never belonged to the Sultan of Sulu from 22nd January 1878. Hence, any claim thereafter to the land is not sustainable in law.
No such claim was made for the next 130 years; it surfaced for the first time in the Spanish arbitration. It is a claim that has no basis in fact or law. What the Sulu Claimants are demanding is a unilateral re-writing of the 1878 Grant. No doubt Stampa when awarding USD14.9 billion in his Award re-wrote the terms of the 1878 Grant.
K. Sovereign Immunity
29. “State Immunity” is a well-established rule of customary public international law whereby countries cannot be sued in the domestic courts of other countries against their will. The 1878 Grant was not a commercial agreement, but an act of a sovereign to cede territories.
30. Accordingly, as a sovereign, independent nation, Malaysia is immune from the jurisdiction of the Courts of Spain and France. As stated by Lord Wilberforce in the House of Lords’ case in I Congreso Del Partido [1983] 1 A.C. 244 :-
“It is necessary to start from first principle. The basis upon which one state is considered to be immune from the territorial jurisdiction of the courts of another state is that of “par in parem” which effectively means that the sovereign or governmental acts of one state are not matters upon which the courts of other states will adjudicate.”
L. Arbitral Imperialism
31. There is an underlying but unmistakable imperialist arrogance in the actions of Stampa as well as the French and Spanish Courts in purporting to exercise jurisdiction over the Government of Malaysia. There is similarly an imperialist arrogance in these courts not immediately accepting that this dispute is clearly and unambiguously for the High Court of Sabah. The Malaysian government rightly rejected the validity of the arbitration from the outset and rightly rejects the validity of Stampa’s arbitration award.
32. It should deeply trouble anyone who values our sovereignty and our hard fought independence from the clutches of the British Empire that courts and arbitrators from former European colonial powers consider it appropriate to impose their jurisdiction upon us against our will. Just try to imagine for one second if the roles were reversed.
33. It is further deeply troubling that one rogue operator, acting in breach of orders from a superior court within his own country, has been able to issue a multi-billion dollar award against the Government of Malaysia, one of the largest awards ever issued against a state. It is particularly outrageous because the basis of that multi-billion dollar award is an alleged breach of a contract worth only RM 5,300 per annum.
The fact that Sulu Sultanate heirs went to Spain and not Malaysia or the United Kingdom and the Spanish arbitrator, Gonzalo Stampa made the decision without Malaysia’s stand of view shows that there is an hidden & criminal agenda behind the arbitration. The arbitration in Spain was nullified b by the Madrid High Court which prompted the arbitration to move to France. Image source: WAU Post
M. Actions against Stampa and Cohen
34. The wholly unacceptable conduct of Arbitrator Stampa and the US lawyer for the Sulu Claimants, Paul Cohen, which borders on unlawfulness, cannot be allowed to persist without Malaysia taking steps against them personally in their home jurisdictions. The Sulu Claimants themselves would not have the legal expertise to engage in this litigation war.
The litigation funders, Therium, have apparently incurred costs in excess of USD10 million including staggering awards of costs in the sum of US$2.79 million to Cohen and US$2.33 million to Stampa. But the legal masterminds who have personal and direct responsibility in attacking Malaysia are Cohen and Stampa.
Thus in the case of Cohen, Malaysia should lodge a complaint against him with the disciplinary body for barristers in England where he practises, namely, the Bar Standards Board in England. The highest standards of integrity and professionalism are expected of the senior legal profession in England, the Bar; Cohen has certainly run foul of them.
In the case of Stampa, Malaysia should lodge a complaint against him with the regulatory authority over arbitrators in Spain. If there is none, we should seek legal advice from leading lawyers practising in Spain on our recourse under Spanish law against this rogue arbitrator.
35. Additionally, Malaysia must seek “in personam” injunction orders against both Stampa and Cohen in both the courts of Spain and France restraining each of them, acting directly or indirectly, on the purported arbitrations in any part of the world. In Spain, I believe Stampa has already been restrained; a similar order against him relocating his unlawful arbitration must also be secured in France. Likewise, against Cohen.
36. Malaysia must investigate how the insurance funder, Therium, agreed to fund such a hopeless case in law, insofar as the quantum of compensation lawfully payable to the Sulu Claimants, is concerned. We must seek advice from the best barristers in London (on the assumption Therium carries on business in the United Kingdom) whether Malaysia can seek an injunction against Therium restraining it from further funding. Once the money flow ceases, amazingly the rogue arbitration activities will cease.
37. I am happy that Malaysia has commenced criminal proceedings against Stampa; that too must be pursued concurrently, as we pursue the new strategies that I have outlined. We must recognise that this is legal imperialism by certain European powers and personalities; we must therefore defend our national sovereignty and territorial integrity with all our strength.
Attack is the best form of defence; and Malaysia must go on the offensive against Stampa, Cohen and Therium. Merely applying to set aside the unlawful arbitration award of Stampa is insufficient. Other punitive measures must be undertaken urgently by Malaysia.
38. It will be recalled that the relevant party to the 1878 Grant is the Government of Malaysia, as a successor-in-title. The party that was taken, albeit wrongly, to arbitration by the Sulu Claimants was also the Government of Malaysia, initially in Spain, and then in France. The USD14.9 billion award was made against the Government of Malaysia. It is well settled law, and certainly something that Cohen should know, that only the assets of Malaysia can be the subject of attachment or execution to satisfy the award.
Cohen should know that Malaysia enjoys “State Immunity” in all the domestic courts of every nation where Malaysia’s assets are situated. In order to overcome this insurmountable hurdle, Cohen abuses the law further by attaching the assets of subsidiaries in Luxemburg belonging to Petronas.
But Petronas is a separate entity from Malaysia. The award does not bind Petronas, and cannot be enforced against the assets of Petronas. The greed of Cohen knows no bounds; abuse of well settled legal principles of universal application does not seem to trouble this American barrister of ill repute.
N. Enforcement of Arbitration Awards under the New York Convention
39. In Dallah v. Government of Pakistan [2011] 1 AC 763, a private party, in reliance on the New York Convention, sought to enforce in the Courts of England an arbitration award made in France by a panel of three arbitrators, which would have then entitled the party, the Plaintiff to execute against the properties belonging to Pakistan in England.
The Government of Pakistan refused to take part in the arbitration proceedings in France because it alleged that there was no valid arbitration agreement between Pakistan and the Plaintiff which meant that the arbitrators had no jurisdiction to determine the alleged dispute. The tribunal nevertheless decided that it had jurisdiction, and made an award against Pakistan.
40. Only when the Plaintiff attempted to enforce the award in England, did Pakistan contest the matter for the first time in the English courts. Lord Mance, in delivering the judgment of the apex court in the United Kingdom, the Supreme Court, stated:-
“….it is well established, and indeed was common ground, that a person against whom an award has been made is not bound to challenge it before the supervisory court in order to challenge its enforcement in another jurisdiction.”
An arbitral tribunal’s decision as to the existence of its own jurisdiction cannot therefore bind a party who has not submitted the question of arbitrability to the tribunal …. a party who has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial determination… before the English Court.
The very issue is whether the person resisting enforcement had agreed to submit to arbitration in that country. Such a person has … no obligation to recognise the tribunal’s activity or the country where the tribunal conceives itself to be entitled to carry on its activity. …”
41. The Supreme Court decided that there was in fact no arbitration agreement, and refused to enforce the invalid award against Pakistan.
42. Hence, Malaysia’s decision not to participate in the arbitration proceedings before Stampa was based on high legal authority. Indeed, participation would amount to conceding the existence of an agreement to arbitrate and conferring legitimacy to an illegal body. In any event, having regard to the outrageous decisions by Stampa, even if Malaysia had argued before him that there was no arbitration agreement, he would have ruled against Malaysia.
And Malaysia would have incurred massive costs to pay him and our Spanish lawyers. Most importantly, neither the Spanish nor the French Courts barred Malaysia from challenging enforcement because of non-participation before Stampa.
O. Is a Special Task Force necessary?
43. The arbitration proceedings begun by Cohen and fully supported by Stampa in Spain and France constitute not just legal misconduct of the worst kind, they are part and parcel of the international arbitration circuit gone mad. It brings into disrepute a system which is Mafia like, controlled by European lawyers abusing the legal systems of their countries, and the arbitration world to the detriment of Third World countries, like Malaysia.
It is a highly specialised and technical area of legal practise. Hence to handle the matter, I had the assistance of lawyers from Attorney General Office, from the Bar in Malaysia and Spanish barristers appearing in the courts of Madrid. I have no doubt that barristers appearing regularly in the courts of Paris were appointed by Malaysia when the dispute transferred to France.
44. Hence, the persons acting for Malaysia should be legally trained in various jurisdictions to combat the multi-national strategies and tactics adopted by Cohen and Stampa. They are all in place, and doubtless discharging their professional duties professionally and competently on behalf of Malaysia. Because this is pre-eminently a legal dispute, the Attorney General, as the chief legal adviser for the nation, should be left to defend Malaysia’s interests.
It is currently in safe hands. There is no need for a special task force or any other committee to be set up. Further, the dispute has reached an advanced stage in July 2022, as I write this. A committee is a bureaucratic excuse for indecision. Please let the Attorney General decide whether he needs to consult anybody; do not impose unqualified persons, ostensibly to help, but in reality to cloud decision-making.
P. Conclusion
45. In determining that the clause “Her Britannic Majesty’s Consul-General for Borneo” was capable in law to confer upon a court in Spain the power to appoint a sole Spanish arbitrator to determine the dispute in Spain and in ordering compensation of USD14.9 billion when the true loss for breach of contract is RM60,000/-, Stampa perversely re-wrote the terms of the 1878 Grant.
No legal system, domestic or international, permits such a radical transformation by a third party of the bargain originally reached by the parties. Stampa’s award is “per-incuriam” : hence, it is void and unenforceable. Stampa’s relocation of the seat of arbitration to France because the courts of Spain had ordered him to cease the arbitration makes it a fraudulent and dishonest award.
Stampa and Cohen are enemies of Malaysia in the war of litigation they have unleashed against Malaysia. We must stand united to repel such attacks.
Tan Sri Tommy Thomas
July 27, 2022(Source: The Edge)
It is a very detailed write-up by the ex-Attorney General so it does take time and probably several reads before one understands the history, legal framework and legal constraints at both ends of the parties in the ongoing legal tussles.
Have any of the BN component parties ever voiced their concerns on the multi-billion scandals that had taken place under the BN’s administration? Scandals that not only cause the taxpayers billions of losses but also like in the case of LCS threaten national security. Image source: Twitter / PAC
Unacceptable by MCA
Expectedly the detailed statement about the Sulu Sultanate’s claims from the ex-Attorney General, despite the excellent explanation is still a contention to the BN politicians. They are often kept quiet about all the mismanagement and corruption that happens under BN but petty issues are highlighted like there’s no tomorrow when it comes to Pakatan Harapan’s administration.
However, this came across as too little and three-years too late. I must emphasise that, at the onset, Tan Sri Thomas wielded full control and responsibility as the attorney general of Malaysia 2018-2020 on how the government would approach the Sulu claim situation. It was required of him to always protect our national interest.
Myself, and many other fellow Malaysians, could not help but notice statements made by former prime minister Tun Dr Mahathir Mohamad, members of the Pakatan Harapan Cabinet and the former Sabah chief minister Datuk Seri Shafie Apdal that they were never made aware of the letter Tan Sri Thomas wrote to the Sulu heirs in 2019.
As the designated attorney general, he was the principal legal advisor to the Government of Malaysia. The government would be like his client, and it’s his role and primary duty to give counsel and inform the client on all pertinent issues. On matters involving the nation, Tan Sri Thomas simply cannot make unilateral decisions without consulting the rest of the government.
Sheer naivety or negligence, we now face a potential loss of US$14.92bil.
(Source: TheStar)
Who was really negligent in managing Sulu Sultanate’s claim?
Final Say
I trust the key point that we need to read is Point 13 which emphasized the legal stand of the Government under Pakatan Harapan on the Sulu Sultanate’s claims:-
13. By letter dated 19th September 2019, I wrote to the counsel representing the Sulu claimants offering to pay the arrears from 2013 to 2019 totaling RM37,100.00, together with 10% simple interest totaling RM11,130.00. Hence the tender that I made to them was for a total sum of RM48,230.00. That represented in law the loss they suffered in the 7 years period.
Further, acceptance by them of the said sum of RM48,230.00 would also have meant that there would no longer be any dispute between the parties. Assurance was also given to them that Malaysia would pay the said annual sum for future years.
My letter expressly stated that the case was wrongly brought within the jurisdiction of Spain and that Malaysia was not recognizing nor submitting to the jurisdiction of Spain, whether exercised by its court, arbitral tribunal or otherwise.
Trust this is sufficient to say that there is no lapse of attention on the Sulu Sultanate’s claim when Pakatan Harapan was in power and the issue actually started much earlier when BN was in power. Next would be to go on the offensive against the parties behind the Sulu Sultanate’s claim as stressed by Tommy Thomas:-
Thus in the case of Cohen, Malaysia should lodge a complaint against him with the disciplinary body for barristers in England where he practises, namely, the Bar Standards Board in England. The highest standards of integrity and professionalism are expected of the senior legal profession in England, the Bar; Cohen has certainly run foul of them.
In the case of Stampa, Malaysia should lodge a complaint against him with the regulatory authority over arbitrators in Spain. If there is none, we should seek legal advice from leading lawyers practising in Spain on our recourse under Spanish law against this rogue arbitrator.
35. Additionally, Malaysia must seek “in personam” injunction orders against both Stampa and Cohen in both the courts of Spain and France restraining each of them, acting directly or indirectly, on the purported arbitrations in any part of the world. In Spain, I believe Stampa has already been restrained; a similar order against him relocating his unlawful arbitration must also be secured in France. Likewise, against Cohen.
36. Malaysia must investigate how the insurance funder, Therium, agreed to fund such a hopeless case in law, insofar as the quantum of compensation lawfully payable to the Sulu Claimants, is concerned. We must seek advice from the best barristers in London (on the assumption Therium carries on business in the United Kingdom) whether Malaysia can seek an injunction against Therium restraining it from further funding. Once the money flow ceases, amazingly the rogue arbitration activities will cease.
It is clear that they have certain agenda in financing the Sulu Sultanate’s suit and transferring the case to other countries when it has failed in other countries.