Tommy Thomas admit mistake in letter

Tommy Thomas finally came out from silence to explain himself. Several mainstream media and news portal published Tommy's attempt to explan. (See The Edge here)

The opposition led by PKR's Rafizi created a media blitz to blame Dato Najib for stopping payment to the Suluk using weak legitimacy reasons. Prior and after the Lahad Datu incursion, PKR leaders were accused of covertly collaborating and supporting Suluk claim. PH has interest to redirect blame.      

While Najib, in one of his endless FB status on the Suluk issue, highlighted his main blame to the letter issued by Tommy to the Sulu party that ended being repeatedly used 10 times at the Madrid arbitration to justify their claim and ultimately a US$14.92 billion claim on Petronas. 

Shafie Apdal is vociferously demanding a debate in Parliament but as Chief Minister, he was accused by Anifah Aman for sending unprepared state legal officer to Madrid to participate and gave legitimacy to the arbitration. 

Wisma Putra's position had all along ignored any attempt by the Suluk for engagement on any claim on Sabah. They took the Phillipines' official position that the Suluk has no sovereign right and the locus standi to do so.

Talk in Sabah is that Tan Sri Richard Malanjum had a role in advising Shafie.  

Reactions

Lawyer Lukman Sherif saw the letter as Tommy admitting his mistake through few strange claims and excuses of his.  

In his FB here, he highlighted Tommy admitted being aware of the arbitration but gave them an easy win to only suggest actions upon realising the New York Convention is binding. 

More ackward, Tommy wrote to the Arbitrator to admit being wrong for not paying the lease and will pay the outstanding amount. 

The latter was conveniently used as proof of Malaysia's wrong. Why did he admit of being wrong?  

In another FB status here, Lukman questioned why he excluded the Lahad Datu incident as explanationt. He gave reasons but it is obvious he has no knowledge and was presumptous. He did not consulted the previous PM or Foreign Minister or AGs on the matter.

Tommy suggested to seek court declaration before making any effort to end the problem. This is strange and weirdly illogical. No country would wait for a long and drawn out court decisions during war or incursion such as Lahad Datu.

A Najib diehard supporter, Lim Sian See responded in her FB here. There are similar concerns to Lukman. It is reproduced below:

Just because Tommy wrote a long-winded explanation citing legal cases doesn't mean that he is not stupid or acted irresponsibly.

But it cannot be disputed that Tommy's actions and letter was cited more than a dozen times in the written judgement against Malaysia.

Here are several issues that Tommy failed to address in his statement today.

1. Tommy claims that the attackers of Lahad Datu have no relationship with the 8 claimants.

But one of the 9 claimants in the lawsuit against Malaysia is Dayang-dayang Sheramar T. Kiram. She is the eldest daughter of Jamalul Kiram III, the self-styled sultan of Sulu and self-admitted mastermind of the Lahad Datu attacks. Her uncle (Jamalul's younger brother) Agbimuddin Kiram led the ground forces in the Lahad Datu attacks.

Other claimants have blood relations with Jamalul Kiram and Agbimuddin too. Did Tommy know about this and why didn't he cite this in his explanation?

2. You say you don't recognize the Sulu claim but you write a letter to say you regret not paying them and that you recognize their claim.

3. You say you don't recognize the Spanish court's authority to arbitrate this matter and that is why you didn't send any reps to defend our case BUT you copied the letter to the Spanish judge - hence recognizing the Spanish court jurisdiction.

4. The claimants were asking for US$33b damages and had spent lots of money on expensive foreign lawyers and you expect them to stop their claim by offering RM48.3k compensation? Are you naive or stupid or naively stupid?

The problem with this letter is that you can bring it to any courts in the world and it confirms that Malaysia officially AND legally recognizes the Sulu claims over Sabah since it was written in his capacity as AG of Malaysia. This letter will cause problems for Sabah and Malaysia forever.

And worse... no one from the PH government seems to have authorized or even know that Tommy had sent this letter.

5. The reason why Malaysia stopped payment in 2013 is that we claim that they have broken the agreement because the Sulu heirs attacked us.

And one of the reason that the Sulu attacked us (despite us paying every year before 2013) is that the fact we are paying them yearly means that they have a claim over Sabah.

As long as we continue to pay them then they can cite this as proof that they have a claim over Sabah.

We should have said that Sabah has chosen independence in 1963 and is a sovereign state that no one has a claim to anymore.

Why didn't Tommy defend this position?

Instead he went to write to the Spanish Judge and the claimants that he recognized the treaties and that Malaysia needs to continue paying forever.

Tommy's letter

The letter being questioned is reproduced below:

Explaining the Sulu claim

LETTER

Wednesday, 27 Jul 2022 10:55 PM MYT

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.

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.”

(my emphasis)

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.

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.”

(my emphasis)

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.

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 US$10mil including staggering awards of costs in the sum of US$2.79mil to Cohen and US$2.33mil 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

Former Attorney General

Suluk never had legitimacy

Salahuddin Hisham pointed out a passage of history in his FB here to reproduce an old NST article.

The Sulu Sultanate never had legitimacy over Sabah to justify signing the 1878 agreement with Von Overback and Dent. Excerpt reproduced below: 

... claims of jurisdiction and/or a right to compensation by the Sulu Sultanate heirs lack legal credibility because sovereignty has already passed to Spain under the Madrid Protocol of 1885.

At the same time, Spain relinquished its claim over what was then known as North Borneo (Sabah). Article III of the Madrid Protocol of 1885 states that:

"The Spanish government renounces, as far as regards the British government, all claims of sovereignty over the territories of the continent of Borneo, which belong, or which have belonged in the past to the Sultan of Sulu (Jolo), and which comprise the neighbouring islands of Balambangan, Banguey, and Malawali, as well as all those comprised within a zone of three maritime leagues from the coast, and which form part of the territories administered by the Company styled the 'British North Borneo Company'."

It's to be noted that not at anytime has the Philippine government ever sought to challenge or question the relevant parts of the Madrid Protocol of 1885, including North Borneo. This is probably because it'd be a legal impossibility.

What's not often mentioned, however, is that the North Borneo Chartered Company (NBCC) founded by von Overbeck and Dent also signed a treaty in the same year with the Sultanate of Brunei, which has a stronger claim to Sabah.

In fact, the treaty with Brunei was signed first — thus giving rise to the implied and tacit recognition (at least) of the priority of claim vis-à-vis the Sulu Sultanate.

Brunei's claim can be attested to by the historical fact that in the late 17th century, Sultan Muhyiddin had promised to cede the eastern coastal part of Sabah to his cousin, the Sultan of Sulu.

The condition for the cession was that the Sultan of Sulu come to the aid of Sultan Muhyiddin in defeating the rival/previous occupant of the throne, Sultan Abdul Hakkul Mubin.

The civil war lasted from 1661 to 1673 but the Sultan of Sulu never made good on his assurances, resulting in Sultan Muhyiddin refusing to enforce the promise.

Mahathir's hand

This posting is already long and the materials is still not exhaustive. 

Basically Tommy admitted to have made serious mistakes. He was complacent and for a supposedly branded lawyer, plain naive. 

New portal Malaysia Post here highlighted Apandi Ali's claim that it was Mahathir who directed Tommy to write to the Suluk.

There is consistency.

Though he try to still lay blame on Najib.

Mahathir is close to Shafie Apdal and collaborated with him by looking elsewhere in Projek IC Biru and Projek IC 2.0 to offer IC to immigrant Sulu.

As far Tommy, Dewan Bahasa Pustaka could include a new Malay parable, Bodoh seperti Tommy Thomas. 

The animal revered by Hindu is more respectable and certainly productive.